Showing papers in "Law & Society Review in 2003"

The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing

Abstract: This study explores two issues about police legitimacy. The first issue is the relative importance of police legitimacy in shaping public support of the police and policing activities, compared to the importance of instrumental judgments about (1) the risk that people will be caught and sanctioned for wrongdoing, (2) the performance of the police in fighting crime, and/or (3) the fairness of the distribution of police services. Three aspects of public support for the police are examined: public compliance with the law, public cooperation with the police, and public willingness to support policies that empower the police. The second issue is which judgments about police activity determine people’s views about the legitimacy of the police. This study compares the influence of people’s judgments about the procedural justice of the manner in which the police exercise their authority to the influence of three instrumental judgments: risk, performance, and distributive fairness. Findings of two surveys of New Yorkers show that, first, legitimacy has a strong influence on the public’s reactions to the police, and second, the key antecedent of legitimacy is the fairness of the procedures used by the police. This model applies to both white and minority group residents.

Management-Based Regulation: Prescribing Private Management to Achieve Public Goals

Abstract: We analyze a little-studied regulatory approach that we call management-based regulation. Management-based regulation directs regulated organizations to engage in a planning process that aims toward the achievement of public goals, offering firms flexibility in how they achieve public goals. In this article, we develop a framework for assessing conditions for using management-based regulation as opposed to the more traditional technology-based or performance-based regulation. Drawing on case studies of management-based regulation in the areas of food safety, industrial safety, and environmental protection, we show how management-based regulation can be an effective strategy when regulated entities are heterogeneous and regulatory outputs are relatively difficult to monitor. In addition to analyzing conditions for the use of management-based regulation, we assess the range of choices regulators confront in designing management-based regulations. We conclude that management-based regulation requires a far more complex intertwining of the public and private sectors than is typical of other forms of regulation, owing to regulators' need to intervene at multiple stages of the production process as well as to the degree of ambiguity over what constitutes "good management." The problem of regulatory instrument choice has typically been framed as a choice between technology-based or performance-based regulation (Breyer 1982; Viscusi 1983). Regulators can craft rules that either mandate specific technologies or behaviors (technology-based regulation) or require that certain outcomes will be achieved or avoided (performance-based regulation). Even market-based regulatory instruments, around which an important literature has emerged (Ackerman & Stewart 1985; Hahn & Hester 1989; Stavins 2002), are still linked either to technologies or, more frequently, to the outcomes of firm behavior. Market-based instruments do provide distinctive incentives to firms, but nevertheless regulators enforcing market-based regulation still measure firms' performance for the purpose of either assessing taxes or determining if firms possess an adequate number of tradeable permits. The treatment of both conventional and market-based instruments in the academic literature has revealed important lessons about the effectiveness of different regulatory standards in advancing social goals. Yet missing from the traditional emphasis on technology-based and performance-based regulation has been much systematic attention to a third type of regulatory instrument that we call "management-based regulation."1 Management-based regulation does not specify the technologies to be used to achieve socially desirable behavior, nor does it require specific outputs in terms of social goals. Rather, a management-based approach requires firms to engage in their own planning and internal rule-making efforts that are supposed to aim toward the achievement of specific public goals (Bardach & Kagan 1982:224). Although attention to management-based approaches has been sparse relative to the literature on other kinds of regulatory instruments, management-based strategies have been used in a variety of regulatory contexts around the world, including in Australian occupational safety and health regulation (Gunningham 1996), U.S. mine safety regulation (Ayres & Braithwaite 1992), and British railway regulation (Hutter 2001). The use of management-based regulation in these and other regulatory settings, including on issues such as food safety and environmental protection, appear to have arisen independently of each other, with comparatively little analysis of management-based regulation as a general regulatory strategy. While several scholars have noted a few applications of these strategies, as well as some of their advantages and disadvantages (Ayres & Braithwaite 1992; Gunningham & Johnstone 1999; Coglianese & Nash 2001), little attention has been paid to the conditions under which management-based regulation is an effective, if not preferred, regulatory strategy. …

Explaining Corporate Environmental Performance: How Does Regulation Matter?

Abstract: How and to what extent does regulation matter in shaping corporate behavior? How important is it compared to other incentives and mechanisms of social control, and how does it interact with those mechanisms? How might we explain variation in corporate responses to law and other external pressures? This article addresses these questions through an study of environmental performance in 14 pulp and paper manufacturing mills in Australia, New Zealand, British Columbia, and the states of Washington and Georgia in the United States. Over the last three decades, we find tightening regulatory requirements and intensifying political pressures have brought about large improvements and considerable convergence in environmental performance by pulp manufacturers, most of which have gone "beyond compliance" in several ways. But regulation does not account for remaining differences in environmental performance across facilities. Rather, "social license" pressures (particularly from local communities and environmental activists) and corporate environmental management style prod some firms toward better performance compliance than others. At the same time, economic pressures impose limits on "beyond performance" investments. In producing large gains in environmental performance, however, regulation still matters greatly, but less as a system of hierarchically imposed, uniformly enforced rules than as a coordinative mechanism, routinely interacting with market pressures, local and national environmental activists, and the culture of corporate management in generating environmental improvement while narrowing the spread between corporate leaders and laggards. I. Introduction In what ways and to what extent does regulation matter in shaping corporate behavior? How important is it compared to other incentives and mechanisms of social control, and how does it interact with those mechanisms? As all firms do not respond in the same way to law or to other external pressures, how do we understand variation in corporate behavior? In seeking to answer these questions, the sociolegal and policy literature on regulatory administration traditionally has focused on explaining corporate compliance and noncompliance with existing legal requirements. The tacit assumption has been that legal compliance by targeted groups is the key to meeting the objectives of social regulation. Underlying that assumption is another: that regulated business corporations take costly measures to improve their performance only when they believe that legal noncompliance is likely to be detected and harshly penalized (Becker 1968; Stigler 1970; Miller & Anderson 1986; OECD 2000).1 From the viewpoint of traditional models of corporations as "amoral calculators" (Kagan & Scholz 1984), why would a profit-maximizing company want to do more than the law requires since compliance is itself often expensive and overcompliance even more so? Yet it is becoming apparent that an increasing number of companies now perform, to a greater or lesser extent, "beyond compliance" with existing regulatory requirements. This suggests that the degree of variation in, and the motivations for, corporate behavior may be much broader than many researchers have imagined. This is of practical importance: some existing regulatory strategies, in focusing on compliance, have failed to facilitate, reward, or encourage beyond-compliance behavior, or even inadvertently discourage it,2 while other regulatory reformers, in contrast, have argued that government-mandated self-regulation is the key to progress. There is no better illustration of the importance of studying "overcompliance" as well as compliance than the arena of environmental regulation. For here there is considerable variation in how firms respond to external pressures, including regulation, and in at least some industries, considerable evidence of "beyond-compliance" behavior (Smart 1992; Hoffman 1997; Prakash 2000). …

Exposure Reduction or Retaliation? The Effects of Domestic Violence Resources on Intimate‐Partner Homicide

Abstract: Rates of homicide involving intimate partners have declined substantially over the past 25 years in the United States, while public awareness of and policy responses to domestic violence have grown. To what extent has the social response to domestic violence contributed to the decline in intimate-partner homicide? We evaluate the relationship between intimate-partner homicide and domestic violence prevention resources in 48 large cities between 1976 and 1996. Controlling for other influences, several types of prevention resources are linked to lower levels of intimate-partner homicide, which we interpret in terms of their capacity to effectively reduce victims' exposure to abusive or violent partners. Other resources, however, are related to higher levels of homicide, suggesting a retaliation effect when interventions stimulate increased aggression without adequately reducing exposure. In light of other research on deficiencies in accessing and implementing prevention resources, our results suggest that too little exposure reduction in severely violent relationships may be worse than none at all.

Fair Treatment or Preferred Outcome? The Impact of Police Behavior on Victim Reports of Domestic Violence Incidents

Abstract: This research is an exploratory test of two hypotheses emerging from debates about how police behavior may influence domestic violence victim reporting. From a procedural justice perspective, victims should be more apt to report victimization when previous encounters with police are viewed as procedurally fair. From a distributive justice perspective, denying victims their preferred outcome may discourage future police utilization. We find that satisfaction with police is related to both distributive and procedural justice but that re-utilization of police is conditioned by preferred outcome. Specifically, if the offender was arrested in accordance with victim preference, the victim is significantly more apt to utilize police in the future.

The contract as social artifact

Abstract: Author(s): Suchman, Mark C. | Abstract: This article outlines a distinctive, albeit not entirely unprecedented, research agenda for the sociolegal study of contracts. In the past, law and society scholars have tended to examine contracts either through the intellectual history of contract doctrine ‘‘on the books’’ or through the empirical study of how real-world exchange relations are governed ‘‘in action.’’ Although both of these traditions have contributed greatly to our understanding of contract law, neither has devoted much attention to the most distinctive concrete product of contractual transactionsFcontract documents themselves. Without denying the value of studying either contract doctrine or relational governance, this article argues that contract documents are independently interesting social artifacts and that they should be studied as such. As social artifacts, contracts possess both technical and symbolic properties, and the sociolegal study of contract-as-artifact can profitably apply prevailing social scientific theories of technology and symbolism to understand both: (1) the microdynamics of why and how transacting parties craft individual contract devices, and (2) the macrodynamics of why and how larger social systems generate and sustain distinctive contract regimes. Seen in this light, the microdynamics of contract implicate ‘‘technical’’ theories of transaction cost engineering and private lawmaking, and ‘‘symbolic’’ theories of ceremony and gesture. In a parallel fashion, the macrodynamics of contract implicate ‘‘technical’’ theories of innovation diffusion, path dependence, and technology cycles, and ‘‘symbolic’’ theories of ideology, legitimacy, and communication. Together, these micro and macro explorations suggest that contract artifacts may best be understood as scripts and signalsFcollections of symbols designed to field technically efficacious practical action when interpreted by culture-bearing social actors within the context of preexisting vocabularies and conventions.

Fear of Reversal as an Explanation of Lower Court Compliance

Abstract: Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation that compliance can be attributed to judges' fear of having their decisions reversed-through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance. Like others who sit atop government hierarchies, U.S. Supreme Court justices would seem to have a problem: they must rely on subordinates to see that their policies take effect, but they have only a limited set of tools with which to induce compliance. Not surprisingly, scholars have found abundant evidence of evasive or even defiant behavior by their subordinates, lower court judges (e.g., Peltason 1961; Romans 1974). Yet there is considerably more evidence of judges' acting, in Songer, Segal, and Cameron's (1994) language, as faithful agents of their higher court principals. For the most part, lower court judges tend to follow specific higher court precedents, and their decisions generally track ideological trends in the higher court (Romans 1974; Baum 1980; Gruhl 1980; Johnson 1987; Songer 1987; Songer & Sheehan 1990; Songer & Haire 1992; Songer, Segal, & Cameron 1994; Benesh 2002). It is far from obvious why lower court judges act this way. In this study, we attempt to determine whether widespread compliance can be attributed to lower court judges' aversion to having their decisions reversed by a higher court. To be clear: We do not ask whether fear of reversal has any effect. Rather, we ask whether its effect is strong enough and pervasive enough to explain substantial amounts of compliance.1 Compliance is a difficult concept to pin down theoretically or empirically, and scholars have attempted to measure it in various ways. We use the term somewhat loosely to refer to decisionmaking behavior by the lower court that furthers, or at least does not undermine, the higher court's efforts to determine legal policy in its jurisdiction. Taking a broad view, two different types of behavior fit this description. One is the faithful application of existing higher court precedents; the other is deciding cases as the higher court would be expected to. These behaviors can diverge where the current members of the higher court are inclined to repudiate its precedents. But far more often they will lead to the same result, for what the higher court has done before will typically be the best guide to what it is likely to do next. For this reason, it is reasonable to believe that findings for one type of behavior can be generalized to the other. In this article, we focus on the latter type of behavior, comparing the actual decisions of U.S. courts of appeals judges to the decisions that the U.S. Supreme Court would be expected to make in their place. Our findings suggest that fear of reversal does not play a major role in this behavior. The Puzzle Cases often offer judges chances to shape public policy. Even when they do not, judges' sympathies may lie with one party or the other. In the many cases where the attitudes of lower court judges match those of the higher court majority, compliance is no mystery. But there are also many cases where the attitudes do not match. In these cases, why might lower court judges choose to weight the views of their superiors more heavily than their own? …

Jurisprudential regimes and Supreme Court decisionmaking: The Lemon regime and establishment clause cases

Abstract: In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce. Introduction In a recent article (Richards & Kritzer 2002), we proposed a new way of conceptualizing the role of law for use in modeling Supreme Court decisionmaking. We suggested that it is incorrect to think of law at the Supreme Court level as operating through the traditional mechanisms of plain meaning, precedent, or intent of the drafters. Given the Court's discretionary docket, the cases decided by the Court are precisely those that cannot be decided through the relatively mechanistic processes that Segal and Spaeth (1993, 2002) label the "legal model." We posit that the influence of law is to be found in what we label "jurisprudential regimes," which we define as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area" (Richards & Kritzer 2002:308). The manifestation of jurisprudential regimes appears in the way that specific variables influence the justices' decisions. We propose that the way to test for the presence of regimes is to look for changes in how variables influence justices in a particular jurisprudential area. In our earlier article, we tested this theory by examining Supreme Court decisions in the area of free expression. We hypothesized that the 1972 companion cases Chicago Police Department v. Mosley (408 U.S. 92) and Grayned v. Rockford (408 U.S. 104) demarcated a regime change that is reflected in a central distinction between regulation that is content-neutral and regulation that is content-based. Our statistical analysis provided strong support for our theory as applied in this area of Supreme Court jurisprudence. A central question we left for future research is whether the pattern we found for free expression cases can be found for other jurisprudential areas. In this research note, we extend our analysis to the Supreme Court's decisionmaking concerning the Establishment Clause. Establishment Clause Jurisprudence Modern Establishment Clause jurisprudence dates from Everson v. Board of Education (330 U.S. 1, 1947) when the Supreme Court, in a case involving reimbursing parents of schoolchildren for the costs of transportation to school even if the school involved was a parochial school, extended, by incorporation through the Fourteenth Amendment, the Establishment Clause strictures on Congress to the states. In Everson, Justice Black, even while upholding the aid involved in the case using a "child benefit" argument, enunciated what became known as the "no aid" test reflecting a "wall of separation between Church and State" (Levy 1994:152-54). Over the next fifteen years, the Court decided two Establishment Clause cases dealing with voluntary religious instruction during school hours, first striking down programs held in public school buildings (McCollum v. Board of Education, 333 U.S. 203, 1948) and then upholding off-premises programs using so-called released time arrangements (Zorach v. Clauson, 343 U.S. 306, 1952). In a set of three cases (McGowan v. Maryland, 366 U.S. 420, 1961; Two Guys v. McGinley, 366 U.S. 582, 1961; and Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 1961), the Court dealt with state laws forbidding various kinds of commercial activities on Sunday (so-called blue laws), with the Court rejecting the challenges to these laws in all the three cases. The school prayer cases in 1962 (Engel v. …

Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective

Abstract: In this article, we examine factors that influence appellate supervision in the lower tiers of the federal judicial hierarchy. Drawing on the insights of agency theory, we develop a framework to assess the determinants of circuit panel decisions to affirm or reverse federal district court rulings. Our analysis of U.S. Courts of Appeals' published civil rights decisions over a 29-year period (1971-1999) offers support for several hypothesized relationships. As expected, the outcome of appellate review varied with the level of agreement between the preferences of the circuit (as principal) and the policy position of the trial court (as agent). In addition, we found that circuits were more likely to affirm trial court decisions that were contrary to the preferences of the federal district court judge, suggesting that circuit judges may rely on ideological signals when evaluating appeals before them. We also hypothesized that the monitoring activities of circuits would be influenced by individual circuits' relationship with their principal, the Supreme Court. Consistent with these expectations, panels were more likely to reverse district court rulings that were incongruous with the policy predisposition of the High Court. In addition, as Supreme Court scrutiny of a circuit increased, the likelihood of a circuit panel subsequently reversing a district court also increased. Although further inquiry is necessary to clarify the interpretation of this result, the finding does suggest that district courts are more likely to engage in decision making that deviates from circuit preferences when that circuit faces more intense supervision from the Supreme Court. Introduction "In theory,... federal judges form a pyramid that supports the will of [Supreme Court] Justices. In reality, federal judicial power is widely diffused among lower court judges who are insulated by deep traditions of independence" (Howard 1981:3). As this quote describes, the federal judicial hierarchy is designed to enable the Supreme Court, sitting at the system's apex, to impose its collective will on lower federal judges. Yet the Court's control is far from absolute: the decentralized structure of the federal judicial system, in combination with the Court's limited institutional capacity, provide lower court judges with considerable discretion to fashion case outcomes in accordance with their own legal and policy preferences. These cross-pressures in the federal court system have led scholars to examine the extent to which the High Court successfully influences the decisional outputs of the courts below (Johnson 1979; Gruhl 1980; Songer 1987; Songer, Segal, & Cameron 1994; Cameron, Segal, & Songer 2000; Baum 1994). Appellate supervision over lower courts is not exercised solely by the U.S. Supreme Court. In the lower tiers of the hierarchy, circuit courts are expected to monitor the decisional outputs of the federal district courts (Baum 1980). Of course, the most significant supervisory tool available to the circuit court is the power to reverse or affirm the lower court. Although the power to reverse is exercised relatively infrequently by the circuit courts, it nevertheless serves as a compelling mechanism to shape lower court decision making and to signal the circuit's preferences concerning legal policy. Affirmances also serve to signal the circuit court's preferences and shape lower court decisional outcomes by confirming the approach adopted by the trial court. In this article, therefore, we ask how appellate courts use this significant power of review to control decision making in the lower courts. In particular, we seek to identify the critical determinants underlying appeals court judges' choices to alter the status quo created by the lower court's ruling. As part of that effort, we recognize that this decision may be influenced by an institutional environment in which resources are scarce and caseloads are high. Drawing from a theoretical perspective that recognizes the interplay between attitudes and institutional structures in models of judicial decision making, we identify and evaluate the determinants of circuit court decisions to affirm or reverse the judgment of the district court in civil rights and liberties cases over a 29-year period. …

Evaluating legality: Toward a cultural approach to the study of law and social change

Abstract: The role of law in social change has been a subject of many academic debates. However, not much attention has been given to the contradictory ways in which activists for social change justify or criticize the use of law. Drawing on in-depth interviews with 25 social justice activists, I analyze the ways in which activists evaluate the role of law in social change. I find that activists invoke three distinct schemas of evaluation: instrumental, political, and cultural. The instrumental schema emphasizes change in the allocation of concrete resources; the political schema views change as the empowerment of marginalized communities; and the cultural schema emphasizes the transformation of assumptions that are shared by all members of society. Each schema provides activists with a particular order of justification that enables them to justify or to criticize the role of law in social change. While the multiplicity of schemas sustains the commonsense notion of law as a means for social change, it also accounts for possible changes in this notion. Introduction Does law matter for progressive social change? Can social movements use legal tactics to promote social justice? These questions have been of great concern for sociolegal scholars in the past decades. Some studies of the effects of law on social change have tended toward a critical view of law, arguing that legal tactics are usually futile in bringing about meaningful social reform (Rosenberg 1991). Reacting against this critical view of law, other studies have suggested broadening the definition of law to include the meanings that activists who participate in legal campaigns assign to legal norms. Based on this redefinition of law, scholars have argued that legal tactics may indirectly empower social movements and provide leverage for political mobilization (McCann 1994; Silverstein 1996). However, both perspectives on law and social change do not explore systematically the ways in which social justice activists conceptualize social change and the extent to which this conceptualization shapes their understanding of the role of law in social change. In other words, the current literature does not give us a good account of how culture works in the interaction between law and activism for social reform. To study how the culture of law and activism works in action, I have conducted interviews with 25 social justice activists, all of whom work primarily on issues of educational justice. These interviews allow me to analyze the various ways in which social justice activists understand the relationships between law and activism. I find that activists express a variety of views about the role of law in promoting or preventing social change. At face value, these views seem chaotic. A closer analysis, however, reveals that ideas about the role of law in social change are justified based on three distinct cultural schemas: instrumental, political, and cultural. Each schema represents a different way of understanding activism for social change. The instrumental schema emphasizes the need of marginalized people to have concrete resources such as jobs, health care, and quality education. The political schema emphasizes the need of marginalized people to be empowered, united, and politically mobilized. The cultural schema emphasizes the need to transform the taken-for-granted assumptions that are shared by all members of society. Each schema provides activists with a particular rhetoric, or "order of justification" (Boltanski & Thevenot 1991), which enables them to evaluate the role of law in social change. Under each schema, activists may praise or criticize the role of law, but their mode of justification is different in each schema. The various academic accounts on law and social change tend to ignore this complexity, and therefore, each of these accounts provides us with only a partial understanding of the relationships between law and social change. …

Fear of Gang Crime: A Look at Three Theoretical Models

Abstract: Gang crime and resulting public fear became a major policy focus during the 1990s, yet feu studies specifically focus on fear of gang crime. Guided by social disorganization theory, we test three theoretical models about the individual thought processes leading to fear of gang crime. Using structural equation models, we find that each of these three theories-diversity, disorder, and community concern-is an important predictor of gang-related fear. In addition, we find that the indirect relationships between demographic characteristics, theoretical variables, and fear depend upon which model is tested. Fear of Gangs and Crime Policy Crime has been a major focus of political campaigns for years (Johnson 1997; Warr 1995, 2000), but during the 1990s, policymakers routinely cited gang violence and the fear it invoked in the public as a primary justification for harsher laws and punishment policies (e.g., Clinton 1997; Senate 1994). Throughout the 1990s, both the U.S. House and the U.S. Senate held hearings about gang violence in an effort to "do something" about gangs, which, they believed, had the nation "caught in the grip of fear" (Senate 1994:2; see also House 1997a, 1997b). In his opening statement to the 1994 Senate hearing The Gang Problem in America, then-Senator Kohl summed up the Senate's concerns: Too many of our young people are killing and being killed and breeding fear among all the honest people who try to walk our streets. Throughout the United States, gangs have much to do with all of this . . . today, we recognize that violent gang crime is a national problem. . . . (Senate 1994:1-2). As a result of legislator concerns, the 1994 Federal Crime Bill made it a federal offense to be involved in gang-related crime and created minimum penalties for related offenses (Senate 1994:4, 19; Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, §150001). A few years later, President Clinton declared a war on gangs in his 1997 State of the Union address and announced that fighting gangs would be a top priority of his second administration (Clinton 1997; Peterson 1997). Later that year, the U.S. House Subcommittee on Crime held a hearing, Gang-Related Witness Intimidation and Retaliation, which reiterated the concern that gangs were still out of control. As a Los Angeles deputy district attorney told the subcommittee, "Fear and intimidation are the foundation of gang dominance in our communities . . ." (House 1997b:5). Clearly, during the 1990s, gangs rose to the center of the policy debate about crime, due, at least in part, to policymakers' perceptions that the public was terrified of gangs. Few studies specifically examine fear of gang crime (see Lane 2002; Lane & Meeker 2000, 2003). Research regarding fear of nongang crimes indicates that the public's fear is complex and not likely to be lessened simply by passing more laws, such as Clinton's Anti-Gang and Youth Violence Initiative, and increasing punishments (see Peterson 1997; House 1997b). This lack of effect is due in part to the public's limited knowledge about the workings of the criminal justice system (Roberts & Stalans 1997). Findings also indicate that actual crime levels do not neatly translate into fear levels. Most fear of crime research indicates that perceptions of community factors such as diversity, disorder, decline, and crime are probably more important in predicting fear than is the objective "reality" of crime and victimization (e.g., Garofalo & Laub 1978; Lewis & Maxfield 1980; Taylor 2001; Warr 1994, 2000). Fear of crime is functional if it helps people protect themselves from real threats (Warr 2000). But research has shown that people who are most at risk for victimization (e.g., young, minority males) are less fearful than those at less risk, such as women and the elderly (see Warr 1994 for a review). Social disorganization is a key theory that has been used to explain how real and perceived community characteristics can increase fear of crime, especially when victimization risk is low (Taylor & Covington 1993). …

Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales

Abstract: Professions are granted a form of cartel that enables them to charge more than would arise in a free market on the assumption that they provide better quality and are more trustworthy than free-market actors would be. The theoretical assumption that lawyers are more competent than nonlawyers has given rise to significant formal protections for professions in many jurisdictions. Two testable propositions arise from this theory: (1) lawyers cost more, but (2) they deliver higher quality. It is a testing of these twin propositions that is the subject of this article, with well-triangulated data and a deeper understanding of the theoretical differences between lawyers and nonlawyers.

Confessions and Criminal Case Disposition in China

Abstract: This research examines confessions and criminal case disposition in China. It describes how wider economic reforms in China and subsequent changes in its legal system may have affected the nature and consequence of criminal confessions. Bivariate and multivariate analyses of a sample of 1,009 criminal court cases reveal that the majority of offenders confessed to their crime and that confession is associated with less severe punishments (e.g., lower risks for imprisonment, shorter sentences). Changes in the nature of confession and its impact on criminal court practices are also examined before and after legal reforms in the mid-1990s. These context-specific findings are then discussed in terms of their implications for understanding the interrelationships between legal structure, legal culture, and case disposition in communitarian-based societies.

Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division

Abstract: Research on the U.S. Supreme Court suggests that judges' decisions are influenced by their policy preferences. Moreover, judges behave strategically to facilitate outcomes that conform as close as possible to those preferences. We seek to generalize this assertion to judicial actors in two very diverse social systems: Canada in the post-Charter years and apartheid-era South Africa. Specifically, we analyze the use of panel assignments by the chief justices in both countries. We find that chief justices do behave strategically. Chief justices in both countries do not assign judges to panels randomly but rather are influenced by the tenure and ideology of the sitting judges and the issues presented in the case. Studies of judicial decisionmaking over the last several decades have significantly increased our understanding of the behavior of the U.S. Supreme Court and the justices who compose it. In an attempt to increase our understanding of courts and of judging more broadly, there recently has been an emphasis on the expansion of comparative judicial research (Epstein 1999:1). Such an emphasis will allow scholars to develop truly generalizable theories of judicial decisionmaking that apply to courts beyond the borders of the United States. With this comparative focus in mind, we explore the primary assertions of previous research on appellate court behavior: Judges are affected by their policy preferences, and decisions are made that benefit those preferences. To test our assertions, we analyze the behavior of individuals in two appellate courts: the Supreme Court of Canada in the post-Charter years and the Appellate Division of the Supreme Court of the apartheid-era Republic of South Africa. More specifically, we focus on the behavior of the chief justices in panel assignments, exploring the role of tenure, issue, and ideology. Interest in panel assignments in the United States has been primarily confined to studies of the federal courts of appeal (the only federal courts to hear cases in panels) during the desegregation era. Several studies of possible influences on these assignments discovered that while assignments were thought to be random in most courts, in the Fifth Circuit at least, the chief justice appeared to be influenced by his policy preferences when assigning justices (Atkins & Zavoina 1974; Barrow & Walker 1988; Howard 1981). Further, scholars have suggested that while policy preferences may not have an impact in all courts, the panel assignment process could still be classified as nonrandom since considerations of seniority and expertise may influence chief justices (Howard 1981). Although work on panel assignments has been largely abandoned in recent years,1 research on the opinion assignments of U.S. Supreme Court chief justices can provide insight into possible influences on panel assignments as well. The opinion assignment literature has found differences among the chief justices. Thus, while Chief Justice Rehnquist has been found to consider workload factors most prominently (Maltzman & Wahlbeck 1996), earlier chief justices were found to consider their own policy preferences when making opinion assignments-those with similar preferences to the chief justice were more likely to be assigned an opinion (Segal & Spaeth 1993; Slotnick 1979a; Ulmer 1970). Other factors such as judicial expertise, efficiency, experience, and the importance of the case have also been suggested as possible influences by some of this literature (Brenner 1984; Maltzman & Wahlbeck 1996; Brenner and Hagle 1996; Slotnick 1979a). These factors inform our own study of panel assignments-the additional power held by chief justices in our countries of interest. Despite the decreased attention paid to the panel assignment decision in the United States in recent years, we believe this behavior has the potential to significantly affect the outcome of cases. Thus, the factors influencing the chief justice in his assignments need to be explored. …

A Post‐Westphalian Conception of Law

Abstract: A Post-Westphalian Conception of Law Brian Tamanaha, A General Jurisprudence of Law and Society. New York: Oxford University Press, 2001. xx + 263 pages. $60.00 cloth; $22.95 paper. The discipline of law is becoming more cosmopolitan, partly because of "globalization." Jurisprudence, as the theoretical part of law as a discipline, has begun to respond to this challenge. During most of the twentieth century, mainstream Anglo-American jurisprudence focused almost entirely on two forms of law: municipal law (of sovereign nation-states and subordinate legal orders) and public international law (largely but not exclusively treated as the law governing relations between states). From a global or a broad transnational perspective this "Westphalian" focus is inadequate.1 It leaves out too much: if one were to try to sketch a broad overview of forms of legal orders in the contemporary world, one might quibble about including lex mercatoria or his humanitatis or Pasagarda law or Gypsy law or Hindu law or Internet law (GLT; Santos 1995, 2002), but it would be difficult to justify leaving out European Community law or Islamic law or major examples of "traditional" or "chthonic" law.2 Yet it would be strange to try to subsume all of these under municipal law or public international law. (GLT:chs. 3, 9) If one were to adopt an historical perspective, other candidates would press for attention, for example, classical Roman law, the medieval law merchant, canon law, to say nothing of major traditions of religious, indigenous, and chthonic law. This is not merely or mainly a semantic issue; rather it involves a judgment about what forms of legal ordering deserve sustained attention by our discipline. Mainstream Westphalian legal theory does not seem to be well equipped to answer some important questions about the juridical status of particular legal orders. For example, what is the juridical status of EC law, contemporary Islamic law, lex mercatoria? Is human rights law merely part of public international law? Can one claim to understand law in Brazil if one ignores the internal ordering of the squatter settlements, made famous by Santos's account of "Pasagarda law" (Santos 1995:ch. 3, 2002:ch. 4)? Are these all "law" in the same sense? It is tempting to try to brush aside such questions as semantic, or trivial, or aridly conceptual, but it is difficult to escape from them completely. The purpose of this essay is to consider one of the first attempts to confront the problems of theorizing about law at a global or broad transnational level in response to the challenges of "globalization."3 Brian Tamanaha's A General Jurisprudence of Law and Society is bold, ambitious, radical, and challenging. My object is to summarize its central theses, to indicate why I think that this is an important work, to sketch some differences in our perspectives and positions, and to suggest some areas that are in need of development. I shall follow the order of the book, focusing on a few themes rather than trying to follow all of the ramifications of a rich and complex argument. The first section sketches Tamanaha's background, concerns, and conception of his enterprise. The next section considers his critique of "mirror theories" and "the social order thesis." Next, I shall consider how he pares down Hart's model of law to produce a nonessentialist, nonfunctionalist "core concept of law."4 Rather than dwell on his interpretations of Hart and other thinkers, I shall focus on the clarity and tenability of Tamanaha's own position, especially in regard to his attempt to construct a core concept of law on the basis of folk concepts. Finally, I shall suggest some ways of extending or refining his analysis in respect of "globalization" and "general jurisprudence," "bottom-up perspectives on law," and normative and legal pluralism. Tamanaha's and my own views are quite similar and seem to be converging. As we proceed, I shall indicate some points of divergence in our enterprises and positions, but the main objective here is to clarify and assess Tamanaha's central theses. …

Lawyers for Conservative Causes: Clients, Ideology, and Social Distance

Abstract: Scholars have devoted attention to "cause lawyers" on the political left, but lawyers who work on the conservative side of the American political spectrum have received relatively little academic consideration. This article presents systematic data on the characteristics of and relationships among lawyers affiliated with organizations active on a selected set of 17 conservative issues. We find that the lawyers serve several separate and distinct constituencies-business conservatives, Christian conservatives, libertarians, abortion opponents-and that the credentials of the lawyers serving these varying constituencies differ significantly. The greatest degree of social separation occurs between the business constituency and the abortion opponents, with another clear separation between libertarians and the interest groups devoted to traditional family values and order maintenance. The divisions among these constituencies appear to reflect the difference between "insider politics" and "populism," which is manifested in part in actual geographic separation between lawyers located in the District of Columbia and those in the South, West, and Midwest. In the center of the network, however, we find some potential "mediators"-prominent lawyers who may facilitate communication and coordination among the several constituencies. These lawyers and the organizations they serve attempt to merge morality, market freedom, and individual liberty concerns, and they convene meetings of diverse sets of lawyers and organizational leaders to seek consensus on policy goals. Nonetheless, the findings indicate that most organizations are seldom active on issues that lie beyond the relatively narrow boundaries of their own interests. The American conservative coalition seeks to join together some quite distinct constituencies-religious conservatives who emphasize social order and personal virtue, libertarians who stress individualism and freedom, nationalists who seek to stem immigration and protect the culture of America's middle class, and business interests that oppose regulation, taxes, and union activity.1 Because the goals of these constituencies are sometimes at odds, maintaining the coalition requires effort and diplomatic skill. Some actors, individual and institutional, have characteristics that specially equip them to play the integrative role. Foundations can use their money to encourage cooperation, and lawyers might also have assets that would enable them to be effective in bridging the constituencies. If the bar functions as a professional community, with established communication networks, lawyers might be able to use these ties in the process of building coalitions. Lawyers, especially in the Washington context, have been characterized as professional mediators or "go-betweens" (Horsky 1952:10-11; Mills 1956:288-89). Much of the work of the conservative movement proceeds through nonprofit organizations, including foundations (Dezalay & Garth 1999; Smith 1991), think tanks (Ricci 1993; Stefancic & Delgado 1996), trade associations, advocacy groups, and public interest law firms (Epstein 1985; O'Connor & Epstein 1983). Lawyers play important roles in these organizations: they help create, maintain, and advise the organizations and they represent them in the forums where law is made. Understanding who these lawyers are, the roles they play, and the relationships among them may thus yield insights about the nature of this political sector and the extent to which its parts are integrated. Scholars have produced extensive research on lawyers who serve causes associated with America's political left,2 but much less empirical work has focused on the characteristics of lawyers who serve conservative causes, the structure of the relationships among them, or how these variables influence the degree of cohesion within the American conservative coalition. Epstein and O'Connor examined conservative interest groups' use of the courts (Epstein 1985; O'Connor & Epstein 1983), and Houck addressed the propriety of charitable status for business public interest law firms (Houck 1984). …

Partners No More: Relational Transformation and the Turn to Litigation in Two Conservationist Organizations

Abstract: The rise in litigation against administrative bodies by environmental and other political interest groups worldwide has been explained predominantly through the liberalization of standing doctrines. Under this explanation, termed here "the floodgate model," restrictive standing rules have dammed the flow of suits that groups were otherwise ready and eager to pursue. I examine this hypothesis by analyzing processes of institutional transformation in two conservationist organizations: the Sierra Club in the United States and the Society for the Protection of Nature in Israel (SPNI). Rather than an eagerness to embrace newly available litigation opportunities, as the "floodgate" model would predict, the groups' history reveals a gradual process of transformation marked by internal, largely intergenerational divisions between those who abhorred conflict with state institutions and those who saw such conflict as not only appropriate but necessary to the mission of the group. Furthermore, in contrast to the pluralist interactions that the "floodgate model" imagines, both groups' relations with pertinent agencies in earlier eras better accorded with the partnership-based corporatist paradigm. Sociolegal research has long indicated the importance of relational distance to the transformation of interpersonal disputes. I argue that, at the group level as well, the presence or absence of a (national) partnership-centered relationship determines propensities to bring political issues to court. As such, well beyond change in groups' legal capacity and resources, current increases in levels of political litigation suggest more fundamental transformations in the structure and meaning of relations between citizen groups and the state. The appearance of political interest groups as litigants in American courts has become so commonplace that it is easy to overlook the relative novelty of this legal-political phenomenon. Although some such groups have relied on litigation at least since the start of the twentieth century, it was only during the 1950s and 1960s that a broad spectrum of interests and a large number of political organizations turned to the courts (Epstein & Kobylka 1992; Koshner 1998). Several decades later, interest groups elsewhere in the world have now begun to follow suit, heralding a global judicialization of political disputes (Tate & Vallinder 1995). While this trend has been widely diagnosed, little research has focused on what accounts for such differences in the litigation propensity of groups over time. This study considers this issue by analyzing processes of institutional transformation in two conservationist organizations: the Sierra Club in the United States and the Society for the Protection of Nature in Israel (SPNI). The history of environmental interest group litigation in the United States is among the most evident examples of transformation in the salience of law and courts to the agenda of political groups. Until the 1960s, environmental lawsuits in America were, by and large, limited to nuisance disputes concerning pollution and other interferences with private rights; the practice of legal challenges by environmental groups to administrative policies, which would later become a central pillar of American environmental activism, did not then exist. Yet by the later 1960s, two categories of environmental organizations began to bring legal challenges of this type. The first was new groups, such as the Environmental Defense Fund (EDF) and Natural Resources Defense Council (NRDC), that were created in large part for the purpose of launching such legal mobilization. The second category consisted of longstanding conservationist organizations, such as the Sierra Club, that now added litigation strategies to their repertoire. A parallel pattern is evident in Israel, where environmental litigation on the part of interest groups was exceedingly rare until the 1990s. Behind the growth in levels of environmental lawsuits since then stand both the Israel Union for Environmental Defense, an NRDC-modeled group that was created in 1991 (Morag-Levine 2001), and SPNI, an established conservationist organization akin to the Sierra Club. …

Losers: Recovering Lost Property in Japan and the United States

Abstract: This article examines the lost property regime of Japan, which has one of the most impressive reputations in the world for returning lost property to its rightful owner, and compares it with that of the United States. Folk legend attributes Japanese lost-and-found success to honesty and other-regarding preferences. In this article, I locus on another possible explanation: legal institutions that efficiently and predictably allocate and enforce possessory rights. These recognized, centuries-old rules mesh with norms, institutional structures, and economic incentives to reinforce mutually the message that each sends and yields more lost-property recovery than altruism alone. Introduction This article examines finders' law and recovery of lost property in Japan and the United States. Using a variety of tools-statutory exposition, interviews, new institutional economics analysis, statistics, surveys, and "lost wallet" experiments in which I purposely lost property in Tokyo and New York-I attempt to determine whether and to what extent lost property recovery rates differ, and to disentangle the causal factors that underlie those differences. To be sure, finders' law is relatively low-stakes, and it may be a trivial matter in the grand institutional scheme. Yet two factors suggest that finders' law warrants further attention. First, it is in part this very rationale of triviality that underlies this study. While much legal scholarship examines high-stakes issues, little focuses on lower-stakes, everyday concerns that resonate with the life experiences of ordinary people. I attempt to analyze the relation between law and the everyday, with an aim toward a richer understanding of the role of formal and informal institutions in society. By using finders' law to do so, and by situating the analysis in a comparative and historical context, I hope to understand better the interaction and hierarchy of legal and economic incentives, norms, and altruism in a system of social control. Second, while finders' law may be trivial in terms of nation-building, the way that a society deals with lost property can be central to quality of life. Overprotection may lead to excessive state expense to be borne by taxpayers. Underprotection may subject potential losers to daily fear, excessive care and security measures, and underproductive uses of property as they attempt to counteract potential theft and trespassing. For quality of life, it is critical that the state get these "trivial" institutions "right."1 Although several prominent scholars (Helmholz 1983; Levmore 1986; Posner 2000:556) have recently explored finders' law, and related Good Samaritan issues have received thoughtful attention (Dagan 1999; Stout 2001), these issues are not exactly at the forefront of modern property law theory, much less practice. Several reasons may explain why; as important as the legal allocation of rights to lost property may be, enacting a finders' law is unlikely to be seen as a cornerstone of property rights in a developing system. But one reason why finders' law has the status in property law that it does may be that nobody knows how-or indeed whether-the law works. As far as I can tell, there has been no serious empirical finders' law research since two studies appeared nearly simultaneously more than 60 years ago. In the first (Riesman 1939), published in 1939 in the Harvard Law Review, the author listed the results of a questionnaire sent to railroad companies (none of which currently exist), department stores (Woolworths, Macy's, and Sears, each of which kept no figures), and other large gathering places, and found that practice did not coincide with common law doctrine; establishments seemed to make up their own rules. In the second (Donner 1940), published in 1940, an education scholar polled high school students about their knowledge of finders' law and found that they didn't know much about the law or what to do with found property. …

Law and Society as Law and Development

Abstract: Lynn Mather's major theme is the need for the Law and Society Association (LSA) to become more open to non-U.S. scholars and their theoretical approaches. Befitting a presidential address, she tapped into sentiments that are shared by many in the Association. We in the LSA are pleased with our growing international membership and wish to recognize and welcome contributions from abroad. Her call is also consistent with the new LSA award for research by a non-U.S. scholar and with the effort to build connections through the Association's international activities committee. At the same time, however, she recognizes that our efforts to welcome non-U.S. scholars face certain obstacles. In particular, there is a natural desire to try to export our own ideas as if they are universal, when in fact they are specific products of our own scholarly worlds-embedded in our own state and economy. The message is that we must overcome this parochialism and be more open to approaches and ideas that come from abroad. We should all support this message, and my brief comment is meant to do just that. Thee good will and open-minded spirit characteristic of Mather and her presidential address should characterize the LSA even more than it does today. Nevertheless, I would like to add a few factors that complicate this welcoming image. I hope that these factors will help us see why we have some difficulties in the LSA deciding what it means to be welcoming. It is difficult, for example, to determine whom we should honor from abroad and by what criteria. More generally, the issues Mather raises relate closely to those inherent in policies promoting law and development. A close look at ourselves may help us see why the presumed lessons of the law and development movement in the 1960s and 1970s, condemned later as U.S. "legal imperialism" in the guise of legal reform (Gardner 1980), seem so poorly reflected in the much larger efforts today. As was the case a generation ago, law and society scholars today are squarely behind the law and development consensus. To be sure, the situations today and a generation ago in law and development are not quite the same. A little background can place the current law and development efforts and the potential roles of the LSA in perspective. The law and development effort in the 1960s and 1970s, concentrating on Africa, Asia, and Latin America, focused on finding a role for lawyers in programs of economic development led by strong states and designed by economists. Seeking to gain a place with the economists, legal scholars, and activists joined the idealistic effort to "modernize" developing countries. The legal programs from the United States sought to retrain, technically upgrade, and reorient a new generation of lawyers toward the high-profile and instrumentally pragmatic approaches of U.S. corporate lawyers. The focus was therefore on legal education-seeking to promote the critical thinking thought to come from the case method-and on expertise in business law. As we have all heard often, the programs were not generally considered very successful, according to their own criteria. Today, however, the consensus is far stronger in favor of reform and the legal approaches identified with the United States, including the core idea of a strong and independent judiciary acting as a major branch of the government. Lawyers do not have to fight for their role this time. They were invited. Economists by the 1990s came to see the importance of legal institutions to the markets that they now promote. The key development institutions, including the World Bank and the International Monetary Fund, both dominated by economists oriented toward the United States, actively promote legal and judicial reform, which also includes substantive law expertise and educational reform. The difference now from the earlier period is that economists no longer deem state leadership in the economy to be central to economic development. …

How Green Was My Valley? An Examination of Tournament Theory as a Governance Mechanism in Silicon Valley Law Firms

Abstract: The tournament model is a widely used mechanism to control opportunistic behavior by associates in law firms. However, this mechanism can only operate in certain economic (and social) circumstances. When those circumstances do not exist, the model breaks down, and with it the ability to control opportunism in the absence of some alternative mechanism. Prior research has not investigated whether the utilization of a tournament model prevents the opportunistic behaviors identified as grabbing, leaving, and shirking. In order to test the limits of the tournament model, it is necessary to find particular historical moments when the economic environment radically challenges assumptions/premises of the model. The dot-com bubble in Silicon Valley provides precisely such a time and place. This article demonstrates limits to the applicability of tournament theory. Those limits are to be found in the economic environment in circumstances in which: (1) exogenous reward structures offer many multiples of internal rewards; (2) demonstrably high short-term rewards outside the firm starkly contrast with the delayed longterm rewards inside the firm; (3) the managerial strata reduce their emphasis on long-term recruiting of potential partners in favor of short-term productivity by young associates; and (4) firms develop departmental leverage ratios in excess of their capacity to monitor, mentor, and train recruits.

Reflections on the Reach of Law (and Society) Post 9/11: An American Superhero?

Abstract: The film Spider-Man depicts a masked red and blue superhero struggling against the forces of evil. Based upon a forty-year-old comic of the same name, the movie has been immensely popular. In early May 2002, the first weekend Spider-Man opened, about twenty million Americans saw it, making it the first film ever to make $100 million in just three days (Lyman 2002). Within three weeks, the number of viewers had tripled. When American viewers were asked whether they would recommend the movie to a friend, 95% said yes, and 70% said they would pay to see it a second time (Stein 2002). Stan Lee, writer and co-creator of Spider-Man, proclaimed the character's "worldwide appeal" in a New York Times op-ed column. Lee writes, "Spidey's costume is completely user-friendly. Any reader, of any race, in any part of the world, can imagine himself under that costume-and fantasize that he himself is Spider-Man." (Lee 2002:A27). Hmmm. Is that right? Anthropologist Diana Fox responded to Lee's claim of universal appeal in her letter to the editor in the New York Times. Fox writes: Does this hold true for girls and women as well? Do "he" and "himself" still apply to girls and women in a postfeminist era? Is Spidey's costume gender-neutral? . . . And anywhere in the world? These days, I'm not so sure that Spidey's all-American costume would appeal to those flocking to the burgeoning number of anti-American rallies around the world protesting America's assumptions of its own "super-hero-ness." (2002:A30) Fox concludes, "[y]eah, it's just a comic, but it's the assumption of universality that often gets us into trouble" (2002:A30). In my talk today, I would like to explore that "assumption of universality" and the ways in which it can "get us into trouble." I would like to do so first in the context of our scholarly community, the Law and Society Association, in order to call attention to the particular place occupied by American sociolegal scholars. International topics in law and society and members from outside the United States are increasingly important in the Law and Society Association, but I'd like to ask, to what extent are their voices heard in our academic discourse? Similarly, with respect to this year's conference theme, "the reach of law," I would like to explore how particular features of American law are reaching worldwide. And to ask what impact they are having. What happens when legal ideas, actors, and institutions are exported without a self-conscious awareness of the distinctive context that makes them work in the United States but perhaps not abroad? My thesis is that, in both the academic study of law and society and in the reach of law worldwide, international developments offer tremendous resources and potential for improving our understanding of law and for achieving greater equality and justice but, at the same time, scholars and legal reformers from privileged positions must guard against assumptions of universality.1 The Academic Community of Law and Society I begin by reflecting on the Law and Society Association itself primarily because the organization provides a useful lens through which to explore some of these ideas. But also, I confess, because a Presidential Address represents the conclusion of an intense year of working with the Association. This has been something of an unusual year because of the planning needed for this joint meeting of the Law and Society Association and the Canadian Law and Society Association. I discuss a number of little things about the Association, rather than expounding-as most presidents do-on grand sociolegal themes. I hope, however, to spin those grander themes, web-like, out of the details. As law and society scholars, we are justifiably proud of the research we have done, the insights we have gained, and the theoretical advances in the field (even as we disagree on the merits of competing theories, methods, and epistemologies). …

Poverty, Welfare, and the Affirmative State

Abstract: Poverty, Welfare, and the Affirmative State John Gilliom, Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. Chicago: University of Chicago Press, 2001. Michael B. Katz, The Price of Citizenship: Redefining the American Welfare State. New York: Metropolitan Books, 2001. Alice O'Connor, Poverty Knowledge: Social Science, Social Policy, and the Poor in Twentieth-Century U.S. History. Princeton: Princeton University Press, 2001. Progressive Ethnography of Poverty Ethnographic study of American poverty from the Progressive Era to the present has provided a sympathetic window on the lives of the poor. Ethnographers bear witness to the world of need, oppression, and survival, but the best ethnography has always provided more than the stark facts of life in poverty. Carol Stack, Elliott Liebow, Joyce Ladner, and earlier generations of scholars helped us do more than put faces on the poor; their mission was to understand poverty in its social and institutional context-how the institutions of a democratic society create poverty and limit the capacity of the poor to participate fully in social life. Their scholarship grew first from a powerful moral and political principle: unless such institutions "work" for the poor as well as the better off, we cannot say that the poor have received an equal opportunity to become autonomous, successful participants in our society. Second, their scholarship exposes the myth of universal citizenship rights in the American welfare state, revealing such rights to be contingent upon identity. Recent work in this tradition is taking another important step toward a deeper understanding of inequality by connecting the lives of the poor to the lives of all citizens of the welfare state, demonstrating the interdependence of poverty and wealth, market and social provision, and political power and governmental regulation of the poor. John Gilliom's interpretive study of welfare recipients' narratives is an important addition to the new ethnographic research on poverty. His interviews show us how-in the words of historian Michael Katz-poor women "navigate the welfare state from below" (personal correspondence with Michael Katz). The narratives of poor mothers about oversight by welfare officials are important not only because they tell of a world of need and oppression but also because they help us understand how poverty policy is no backwater of programs for marginal citizens but an integral part of the welfare state in an age when the rhetoric of policy connects all of its elements to the market and to globalization. Narratives of these regulated lives help us gain a better understanding of citizenship, identity, social participation-and the role of law-in contemporary society. In this review essay, I describe Gilliom's research in relation to recent books by Katz and Alice O'Connor. Katz and O'Connor's studies situate poverty policy in the evolution of the American welfare state from the early twentieth century to the present. Together, the three studies tell complementary stories about poverty policy. Gilliom provides a compelling account of the capture of administrators and regulatees alike by a system of information control in welfare offices; he examines compliance and subversion and draws our attention to their implications for democratic citizenship. Katz's wider lens suggests that Gilliom's account of surveillance and discipline is fundamental to both public and private institutions of the American welfare state, which are, by their nature, sites of surveillance and discipline that maintain subservience to the needs of the private labor market. O'Connor describes the failure of poverty scholars from the Progressive Era to the present to create "poverty knowledge" that describes the alliance of welfare policy and labor market discipline that stereotypes and stigmatizes recipients. The failure of liberal mainstream American scholars to emphasize these distortions of the moral image of welfare recipients has limited their ability to challenge the legitimacy of welfare policies. …

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Abstract: Questions regarding Brown v. Board of Education's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.

The Impact of Institutional Structures and Power on Law and Society: Is It Time for Reawakening?

Abstract: Lynn Mather as President of the Law and Society Association: A Canadian Perspective I was very pleased to see Mather address the issue of assumptions of universality that might exist in the Law and Society Association (LSA), especially as she notes the "unusual year" of planning a joint meeting with the Canadian Law and Society Association (CLSA). Many of us can tell stories (some rather amusing) about assumptions of universality by citizens of the United States.1 Some of us have experienced it by sending articles to the Law & Society Review.2 But what I would like to focus on is Mather's role in reaching out to the CLSA. I have to confess I was initially a bit dubious about the proposed joint meeting in Vancouver, British Columbia.3 Many of my doubts were erased when Mather drove up to Quebec City in May 2001, during our annual conference, to meet with members of the CLSA regarding the planning of the 2002 conference. Despite the fact that her organization was seven to eight times larger than ours and had an office with staff (unlike the CLSA), she started from the assumption that we were on equal footing. Mather and Lou Knafla, the president of the CLSA, appointed a 16-member program committee, with six academics from the United States, five from Canada, one from each of South Korea, Japan, and Australia.4 Valerie Hans and I were asked to act as program chairs. Mather also had the foresight to realize that we might work better as a group if we actually met face-to-face. She raised funds from the John Sloan Dickey Center to bring us together at the Minary Center in New Hampshire. Due to the terrorist events of September 11, our September 14-15 meeting had to be cancelled. Undeterred, Mather (with the assistance of Rod MacDonald and Jean-Francois Gaudreault-DesBiens, two committee members from McGill) arranged for us to meet in Montreal in mid-October. Not only did we receive John Sloan Dickey's quotation about "ill-founded premises" in advance of the meeting (see Mather 2003:263 for the quotation), but Mather read it to us again in her opening comments at our planning meeting. Above all, Mather is a good listener, and her disarming manner and charm won us over. She has gone a long way in taking the United States out of the LSA.5 On a personal level, Mather's ability to reach out to Canadians and others was unprecedented and very much appreciated. The Impact of Institutional Structures and Power on Law and Society I was intrigued by Mather's reference to the article by Campbell and Wiles (1976) that describes law and society in Britain as bifurcating into the "sociology of law" and "sociolegal studies," whereas the phrases are "indistinguishable to most Americans" (Mather 2003:272), and her discussion of the creation of LSA as a response to a wider political environment as well as an academic one (as discussed by Garth & Sterling 1998). It led me to reflect on the nature of law and society research and teaching issues, and whether there are sufficient changes in societies today to anticipate another shift in focus. Campbell and Wiles distinguish between sociolegal studies, which has been "denigrated [by the sociology of law] as antitheoretical, concerned with social engineering through the existing legal order, and not with explaining the order or transcending it by critique," and the sociology of law, which has been "chastized [by sociolegal studies] as abstract theoreticians, whose speculations were divorced from reality and lacked practical relevance" (1976:549). Sociolegal studies has accepted the legal order as unproblematic and worked to improve it (handmaidens of the law and social order), whereas the sociology of law has questioned the nature of social (including legal) order and tried to understand how laws have emerged-both the official and unofficial versions (1976:553-54). One year earlier, Cain expressed concern that the sociology of law might separate too early from its sociological roots (as British criminology had done) and lose some of its ideas and theory, "which alone could give it coherence and direction" (1975:61). …

Cracking the "Red, White, and Blue" Ceiling: Toward a New International Role for the Law and Society Association

Abstract: The idea that the study of law in society is a universal phenomenon and the dream that the Law and Society Association (LSA) could become a cosmopolitan institution embracing scholars from all over the world are hardly new. From the earliest days when we could all meet in Red Schwartz's living room, to the Budapest and Vancouver meetings when we met in another country and attendance went well over 1,000, many in the field and in the Association have accepted this idea and followed this dream. For those of this persuasion, Lynn Mather's presidential address was welcome evidence that the dream is still alive. Yet at the same time it is a chilling reminder of the limited degree of internationalization that has occurred since some of us crowded into that living room in Buffalo. While she points proudly to several indicators of increased engagement of scholars from outside the United States in LSA activities, she also notes counter-trends and worries that some seemingly positive developments may contain ambivalent messages. For example, the creation of a special international award seems, at first blush, to be a positive move toward internationalization. But, as Mather points out, it could also be seen as acceptance of the idea that all other awards just naturally go to citizens of the United States of America, so that a special award has to be set aside for all the scholars from the rest of the world. Is There a "Red, White, and Blue" Ceiling? Although Mather does not come out and say it, one can read her address as recognizing that there is a "red, white, and blue" ceiling that limits the role of people from outside the United States in LSA, much as the famous "glass ceiling" limits the career progress of women and minorities in many spheres. Thus, just as the Association's major awards seem always to go to people from the United States, so do all the positions of leadership. How many presidents or other officers can you name who do not have a U.S. passport? How many annual program chairs or Law & Society Review editors can you think of who did not teach at institutions in the United States? Surely, the increase of non-U.S. members between 1980 and today, from 15 to 26%, and the increasing number of meetings held outside the United States, shows real progress. Yet we should not take this as proof that we are becoming truly global or that there is a positive trend line we can project into the future. Given the rapid growth of sociolegal studies outside the United States in recent years, an 11% increase in non-U.S. membership in more than two decades is not that remarkable. And one would hardly say that LSA is truly international when three-quarters of the members still come from one country. This is especially true since absolute membership figures do not measure intensity of participation. If we had an index that measured service on the Board, membership on committees, participation in graduate student workshops, and attendance and teaching in summer institutes, as well as receipt of awards and appointment to leadership roles, we would find that the effective international presence falls far below the 25% level. Similarly, the decision to hold meetings outside the United States, in conjunction with institutions based in other countries, is a welcome trend. But when the Association meets outside the United States, does it develop real partnerships or are these meetings really American shows with limited foreign participation? From the first joint meeting with the Research Committee on the Sociology of Law in Amsterdam to the present, our foreign counterparts have worried about American domination at these events. If, as Mather counsels, we need to take internationalization seriously, then we need better indicators of participation and a more nuanced understanding of the pressures and forces that may be creating the invisible "red, white, and blue" ceiling. But we do not need to wait for such work to know that if we want our field to be more universal and our association more cosmopolitan, then more needs to be done. …

LSA and the "Pax Americana"

Abstract: In the United Kingdom, we do not yet celebrate Thanksgiving. I wonder how much longer this cultural exclusion will survive. Our Christmas festivities have been remodeled to give pride of place to the turkey, rather than to the goose beloved of Charles Dickens. Santa Claus, in an outfit from Harper's Weekly via Coca-Cola marketing, has displaced St. Nicholas, Archbishop of Myra, as the bringer of seasonal gifts. Our annual reminder of the virtues of democracy, Protestantism, and dangerous fireworks, Guy Fawkes Day, is being transformed into the sanitized Halloween of "trick or treat." On this occasion, however, the understandable desire of U.S. colleagues to get their drafts out before the pumpkin pie goes in the oven means that I can respond to Lynn Mather, David Trubek, and Bryant Garth. I have to admit that I did not even know that Canada had a different Thanksgiving date, but I have also been able to review Joan Brockman's contribution. Mather and Trubek speak passionately to the internationalisation of the Law and Society Association but, to an international reader, both also epitomize the real difficulty for even passionate advocates of this agenda in understanding quite what this means for the U.S. law and society community, as Garth and Brockman recognize. Mather focuses her presidential address on the dangers of "the assumption of universality," the idea that the American experience of law and society provides a basis for understanding the experience of law and society in any national context. By corollary, she criticizes her compatriots for failing to recognize the way in which others' experiences of law and society may be relevant to the understanding of their own country. She rightly celebrates the Association's achievement in its growth from the handful of founders in 1964, who could still fit into Red Schwartz's home in Buffalo for the first conference in 1975, to the 2002 gathering in Vancouver, which attracted more than 1,000 participants. Three conferences have been held jointly with the International Sociological Association's Research Committee on the Sociology of Law (RCSL) in European locations. Depending on the venue, even the U.S.-based conferences now regularly seem to attract 10 to 15% of their participants from outside the United States. Law & Society Review has extended its reach and will do so yet further under the new publishing arrangements. Despite this, as Mather notes, a measure of social and intellectual exclusion continues to be directed toward international scholars and their work, a phenomenon she compares to the exclusion of women and minorities that has in some degree been acknowledged and addressed by LSA. U.S. scholars are slow to cite work published elsewhere, even from countries that share their legal traditions, to be self-critical about their use of language, and to examine the differences in research agendas. She concludes by calling for a discussion about institutional reform within LSA in response to these concerns. Trubek takes up this challenge in elaborating a program of practical actions that might be taken over the next few years, although he recognizes the potential risks of simply extending the hegemony of U.S. scholarship and stresses the need for many of these to be undertaken in partnership with the RCSL. Hooray for the Red, White, and Blue! Trubek's commentary plays with the resonance of "red, white, and blue." If you put this phrase into a Google search, you get about 290,000 hits. The early pages are all fairly harmless U.S. sites. If you restrict the search to U.K. pages, one of the first to come up is the British National Party, a far right organization that many would describe as neo-Nazi. Their "Red, White and Blue 2001" page reports an annual rally, where "the best efforts of the so-called 'Anti-Nazi League' failed to stop over 500 British patriots from all over the kingdom attending an event to celebrate the historical and cultural legacy of the British Isles and the British people, and have some fun in the process! …