Law & Society

Alderman, D.H. (1997). TV news hyper-coverage and the representation of place: Observations on the O.J. Simpson case. Human Geography, 79, 83-95.

 

From June 1994 until October 1995, the television news industry constructed and sustained a window of saturating hyper-coverage surrounding the O.J. Simpson double-murder case. Coverage of the Simpson case provides us with the opportunity to reflect on the contemporary media practice of hyper-coverage and its possible effects on the frequency and manner in which places are reported and hence represented in television news broadcasts. Drawing from published critiques and statistics of the Simpson coverage and a preliminary content analysis of ABC World News Tonight broadcasts, this theoretical paper offers three observations: (1) the Simpson hyper-coverage altered the frequency, prominence, and metaphorical context of news about Los Angeles; (2) the Simpson hyper-coverage reduced the frequency of non-Los Angeles domestic news coverage and eclipsed the prominence of international news locations; and (3) the Simpson hyper-coverage led to the Simpsonization of domestic news (i.e. television journalists using the events in Los Angeles as a central metaphor around which to contextualize the presentation of other national news events and locations). Exploration into the Simpson media event provides insight into contemporary television journalistic conventions and how these news organization practices shape the representation of places in American popular culture.

 

Alicke, M.D. (2000). Culpable control and the psychology of blame. Psychological Bulletin, 126, 556-574.

 

 

A culpable control model is advanced to describe the conditions that encourage as well as mitigate blame and to assess the process by which blame and mitigation occur. The fundamental assumptions of the model are that evidence concerning harmful events is scrutinized for its contribution to personal control and spontaneously evaluated for its favorableness or unfavorableness. Spontaneous evaluations encourage a blame-validation mode of processing in which evidence concerning the event is reviewed in a manner that favors ascribing blame to the person or persons who evoke the most negative affect or whose behavior confirms unfavorable expectations. The author delineates the elements of perceived control and then discusses spontaneous evaluation influences on control and blame assessments. The blame validation  process is described next. Finally, the culpable control model is compared with extant theories of blame and responsibility and its basic tenets summarized

 

 

Antecol, H. and Cobb-Clark, D. (2004). The changing nature of employment-related sexual harassment: Evidence from the U.S. federal government, 1978-1994.

 

This paper examines the changing nature of attitudes toward and reports of sexual harassment using data for 1978-94 drawn from the U.S. Merit Systems Protection Board (USMSPB) of the U.S. federal government. The authors find that although unwanted sexual behavior reported by federal government employees changed only slightly in overall incidence over the period, its pattern changed noticeably. Unwanted sexual attention by supervisors, for example, declined in incidence; crude and offensive behavior by co-workers increased; and the likelihood that harassment would occur only once (rather than repeatedly) increased. Employees’ attitudes toward sexual harassment changed markedly, with a dramatically increased willingness to define unwanted sexual behavior as sexual harassment. This trend appears to have been due not to changes in employees’ demographic, human capital, and job characteristics, but rather to structural changes in their views of what constitutes sexual harassment.

 

Berk, R.A., Berk, S.F., Newton, P.J. and Loseke, D.R. (1984). Cops on call: Summoning the police to the scene of spousal abuse. Law & Society Review, 18, 479-498.

 

In this paper, we examine factors that affect whether the police are summoned to incidents of spousal violence. The actions of bystanders are distinguished from the actions of victims, and we find that victims and bystanders are moved by somewhat different influences. We also find that the immediate features of the situation dominate the decision to call the police and that many legitimate concerns are salient (e.g., whether there are injuries). In addition, however, some extralegal influences are important so that different offenders engaged in the same crime do not necessarily face the same risks of apprehension. For example, other things equal, bystanders are less likely to call the police if the offender and victim are living together.

 

Bell, Jr., D.A. (1980). Brown v. Board of Education and the interest-convergence dilemma. Harvard Law Review, 93, 518-533.

 

After Brown v. Board of Education was decided, Professor Herbert Wechsler questioned whether the Supreme Court’s decision could be justified on the basis of “neutral” principles. To him Brown arbitrarily traded the rights of whites not to associate with blacks in favor of the rights of blacks to associate with whites. In this Comment, Prof. Derrick Bell suggests that no conflict of interest actually existed; for a brief period, the interests of the races con- verged to make the Brown decision inevitable. More recent Supreme Court decisions, however, suggest to Professor Bell a growing divergence of interests that makes integration less feasible. He suggests the interest of blacks in quality education might now be better served by concentration on improving the quality of existing schools, whether desegregated or all-black.

 

Berk, S.F. and Loseke, D.R. (1980-1981). “Handling” family violence: Situational determinants of police arrest in domestic disturbances. Law & Society Review, 15, 317-346.

 

The recent “discovery” of family violence, particularly violence between spouses, has elicited attention from social scientists and policy makers. Police intervention in domestic disputes is a primary focus. Critiques of police practice have often centered on police failure to arrest offenders in domestic violence incidents. Yet, the literature to date reveals little effort to examine systematically the discretionary role of police in domestic disputes. With data drawn from 262 official police reports concerning domestic disturbances, the propensity of police to make arrests is examined through a variety of exogenous variables. Police arrests, we find, reflect the immediate circumstances of police-citizen encounters.

 

Best, A. and Andreasen, A.R. (1977). Consumer responses to unsatisfactory purchases: A survey of perceiving defects, voicing complaints, and obtaining redress. Law & Society Review, 11, 701-742.

 

A survey of consumer reactions to common purchases was conducted in 1975. Consumers perceive problems with many products and services, and voice complaints concerning about one-third of those problems. Third-party complaint processors play a very small role in buyer-seller disputes. Household status and type of problem influence perception of problems and choice of action or inaction. Satisfactory resolutions occur in somewhat more than half of voiced complaint cases. To increase voicing and fair handling of complaints, procedural changes at the buyer-seller level are suggested; to improve treatment of complaints that are not resolved at the buyer-seller level, improvements in community small claims courts are suggested.

 

Booser, M.A. Krueger, A.B., Wolkon, S., Haltiwagner, J.C., and Loury, G. (1992). Race and school quality since Brown v. Board of Education. Microeconomics, 1992, 269-338.

 

This paper presents evidence on the quality of schooling by race and ethnic origin in the United States. Although substantial racial segregation across schools exists, the average pupil-teacher ratio is approximately the same for black and white students. Hispanic students, however, on average have 10 percent more students per teacher. Relative to whites, blacks and Hispanics are less likely to use computers at school and at work. The implications of these differences in school quality for labor market outcomes are examined. We conclude by examining reasons for the increase in the black-white earnings gap since the mid-1970s.

 

Braver, S.L., Cookston, J.T. and Cohen, B.R. (2002). Experiences of family law attorneys with current issues in divorce practice. Family Relations, 51, 325-334.

 

A survey was administered at a state bar convention to 72 family law attorneys who reported on their experiences in representing a total of 3,860 clients. Results showed that lawyers believed that (a) most losers in relocation cases do not or would not ultimately move; (b) the Family Court Masters system seems to be helpful to families; (c) lawyers’ actions often raise the emotional level of the dispute; and (d) the divorce and custody system is biased against fathers.

 

Brown v. Board of Education

 

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court, which overturned earlier rulings going back to Plessy v. Ferguson in 1896, by declaring that state laws that established separate public schools for black and white students denied black children equal educational opportunities. Handed down on May 17, 1954, the Warren Court’s unanimous (9-0) decision stated that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This victory paved the way for integration and the civil rights movement.

 

Burawoy, M. (2004). “For public sociology.” American Sociological Review, 70, 4-28.

 

Calavita, K. (2002). Engaged research, “goose bumps,” and the role of the public intellectual. Law & Society, 36, 5-20.

Presidential address to the annual Law & Society meeting.

Calavita, K. (2001). Blue jeans, rape, and the ‘de-constitutive’ power of law. Law & Society Review, 2001, 890116.

 

Italy’s Supreme Court recently overturned a rape conviction on the grounds that the woman was wearing blue jeans at the time. The Court reasoned that blue jeans cannot be removed “without the active cooperation of the person who is wearing them,” and therefore sexual intercourse must have been consensual. The decision was met with outrage by media commentators, political leaders, and ordinary Italians in a range of civic organizations. I argue here that this case and others like it are conspicuously inconsistent with a constitutive perspective that sees law and everyday normative orders as mutually embedded, or at least reciprocally reinforcing, and that focuses on law’s hegemonic potential. In this revisiting of the constitutive approach, I propose that the concept of legal hegemony be elaborated to include the counterintuitive possibility that law can sabotage the very ideologies it invokes. For when an authoritative source such as law is so out of step with the evolving normative order, the shocking discrepancy exposes not only the fallibility of law but also the foolishness of the outdated moral vision it is caught endorsing. Finally, I suggest that it may be during “unsettled cultural periods” (Swidler 1986) that such “de-constitutive” moments are most likely.

 

Caldwell, P.M. (1991). A hair piece: Perspectives on the intersection of race and gender. Duke Law Journal, 2, 365-396.

No abstract available

Coates, D. and Penrod, S. (1980-1981). Social psychology and the emergence of disputes. Law & Society Review, 15, 655-680.

 

There is growing interest in the role that individual judgments play in moving people to seek recompense for perceived injuries. Social psychological theory and research may provide valuable clues about the types of judgments that are important in the development of disputes, and the facts that influence these judgments. In this paper, we describe relative deprivation, perceived control, equity, and attribution theories. We also discuss the relevance of these theories to dispute development, differential rates of problem perception, and the making of claims for redress. We conclude with suggestions for future research on the emergence of disputes.

 

Craig, S.C., Martinez, M.D., Kane, J.G. and Gainous, J. (2005). Core values, value conflict, and citizens’ ambivalence about gay rights. Political Research Quarterly, 58, 5-17.

 

 

Recent research has recognized that many people simultaneously hold positive and negative attitudes about important political issues. In this article, we review the concept of attitudinal ambivalence and propose a survey-based measure of ambivalence adapted from the experimental literature. Extending our earlier work on abortion, analysis of a statewide telephone survey of Florida residents reveals that (1) many people have ambivalent attitudes about issues related to gay and lesbian rights; (2) the amount of ambivalence varies according to the specific rights in question (military service, gay marriage and adoption, membership in youth organizations such as Boy Scouts, and others); (3) ambivalence on gay rights is to some extent a function of conflict among citizens’ underlying core values; and (4) under certain circumstances, ambivalence appears to mediate the relationship between a person’s issue preferences with regard to gay rights and his or her evaluation of political leaders and institutions.

 

Daly, K. (1987). Structure and practice of familial-based justice in a criminal court. Law & Society Review, 21, 267-290.

 

Many explanations have been proposed for gender differences in criminal court outcomes, but none has been grounded in a systematic study of the reasoning processes used by court officials in sanctioning male and female defendants. Interviews with thirty-five court officials (prosecutors, defense attorneys, probation officers, and judges) are presented here to assess extant theory and to offer a reconceptualization of why gender differences may emerge in the course of “doing justice.” The interviews reveal that the sanctioning process is structured by familial paternalism, that is, a concern to protect family life, men’s and women’s labor for families, and those dependent on defendants. Familial paternalism more accurately explains family- and gender-based disparities in sentencing than existing social control arguments, and it is distinguished from female paternalism, which is based on the view that women, as the “weaker sex,” are subject to greater court protection than men before the criminal court.

 

Dellinger, K. and Willaims, C.L. (2002). The locker room and the dorm room: Workplace norms and the boundaries of sexual harassment in magazine editing. Social Problems, 49, 242-257.

 

Workers in a variety of occupations are subjected to unwanted sexual behaviors, but many do not label their experiences as sexual harassment because they are institutionalized requirements of their jobs. Yet, even in highly sexualized occupations, boundary lines are drawn between acceptable and unacceptable, harassing behavior. Through in-depth interviews and participant observation, we explore how the editorial staff at two magazines make these distinctions. One of the magazines publishes heterosexual male pornography; the other publishes feminist work. These case studies were selected to highlight the importance of organizational culture in understanding how workers negotiate sexual behavior and define the meaning of sexual harassment. We characterize the distinctive workplace cultures in the editorial departments at the two magazines as analogous to the “locker room” and the “dorm room,” and explain how editors take this culture into account when deciding whether a behavior constitutes sexual harassment. We conclude by drawing out the implications of this study for sexual harassment researchers and policy makers. In particular, we demonstrate the importance of studying sexual harassment in the context of larger workplace norms regarding sexuality.

 

Dixon, J. (1995). The organizational context of criminal sentencing. The American Journal of Sociology, 100, 1157-1198.

This article examines sentencing outcomes in 73 counties in Minnesota to appraise three theoretical approaches to sentencing: the formal legal theory of sentencing, which predicts that legal variables are the primary determinants of sentencing, the substantive political theory, which predicts that legal and social status variables determine sentencing, and the organizational maintenance theory, which predicts that legal and processing variables determine sentencing. The findings demonstrate that the effects of legal variables are important determinants of sentencing irrespective of the organizational context whereas the effects of plea are conditioned by the level of bureaucratization in courts. The results also suggest that racial effects on sentencing are curtailed in the context of sentencing guidelines.

 

Engel, D.M. (1984). The oven bird’s song: Insiders, outsiders, and personal injuries in an American community. Law & Society Review, 18, 551-582.

 

In “Sander County” Illinois, concerns about litigiousness in the local population tended to focus on personal injury suits, although such cases were very rarely brought. This article explores the roots of these concerns in the ideology of the rural community and in the reactions of many residents to social, cultural, and economic changes that created a pervasive sense of social disintegration and loss. Personal injury claims are contrasted with contract actions, which were far more numerous yet were generally viewed with approval and did not give rise to perceptions of litigiousness or greed. The distinction is explained in terms of changing conceptions of the community itself and in terms of the problematic relationships between “insiders” and “outsiders” in Sander County.

 

Enomoto, C.E. (1999). Public sympathy for O.J. Simpson: The roles of race, age, gender, income, and education. American Journal of Economics and Sociology, 58, 145-161.

 

This paper examines those factors affecting public attitudes about the O. J. Simpson trial and the American criminal justice system. The separate and combined effects of these factors–which include race, age, gender, income, and education–were estimated using a logit model. It was found that blacks were more likely than whites to be sympathetic to Simpson and to believe he was innocent of the crimes he was charged with. Older individuals, males, those with higher incomes, and those with more education were less likely to be sympathetic to Simpson and more likely to think he was guilty. Finally, it was found that blacks were more likely than whites to perceive that the criminal justice system is biased against blacks.

 

Ewick, P. and Sibley, S.S. (1992). Conformity, contestation, and resistance: An account of legal consciousness. New England Law Review, 26. 731-749.

 

This paper begins with a story of one woman’s experience of law. We then locate Millie Simpson’s story as one among many that we are collecting as part of an effort to describe variations in legal consciousness, ways in which ordinary people – rather than legal professionals – understand and make sense of law. We suggest that this everyday understanding is a vital aspect of the life and power of law. Millie Simpson’s story is then revisited and interpreted as a part of what James Scott calls the “hidden transcript,” activities and understandings shielded from public view in situations and practices of domination. These hidden transcripts contain forms of resistance that are “something like the hidden rites of vengeance with which the persecuted have a dark vent for their rage.” In our project, we pursue not only masked resistances to power and domination but also unarticulated, taken-for-granted acts and agreements that enact power while constituting normal social interaction. In particular, we seek the representations of law within these hidden transcripts. We do not see the law as something outside of social life, acting on or being acted upon; rather we are attempting to find the threads of law and legality within the tapestry of ordinary lives and everyday events.

 

Feld, S.L., Roiser, K.B., and Manning, A. (2002). Christian right as a civil right: Covenant marriage and a kinder, gentler, moral conservatism. Review of Religious Research, 44, 173-183.

 

The Christian Right has often been less effective in promoting legislative initiatives than one might expect for such a large and well organized interest group. Their primary political problem seems to have arisen from the types of initiatives that they have generally chosen. Specifically, their direct efforts to regulate and punish conduct that they morally disapprove have often provoked suspicion and resistance from others. In recognition of this political problem, some Christian Right activists have recently innovated new types of initiatives that allow and pro- mote their preferred moral choices, without restricting or demeaning those of others. Based upon extensive interviews with political and religious elites involved with the 1997 Covenant Marriage Law of Louisiana and related initiatives else- where, we analyze the nature of this new strategy and its political effectiveness. We trace the evolution of the concept of choice of marriage regimes through unsuccessful proposals in several states, and show how the Louisiana initiative succeeded by effectively softening the usual opposition. Finally, we consider the potential for future use of this strategy for other issues.

 

Felson, R.B., Messner, S.F.,  Hoskin, A.W., and Deane, G. (2002). Reasons for reporting and not reporting domestic violence to the police. Criminology, 2, 617-647.

The National Crime Victimization Survey is used to examine factors that encourage and inhibit victims of domestic violence from calling the police. Victims of domestic violence are less likely than victims of other types of violence to call the police because of their privacy concerns, their fear of reprisal, and their desire to protect offenders, but they are more likely to call for self-protection and because they perceive domestic assaults as more serious. As a result of these and other offsetting factors, victims of domestic violence are just as likely as other victims of assault to call the police.

 

Felson, R.B., Ackerman, J.M., and Gallagher, C.A. (2005). Police intervention and the repeat of domestic assault. Criminology, 43, 563-588.

 

We use the National Crime Victimization Survey to examine whether domestic violence is less likely to be repeated if it is reported to the police and if the offender is arrested. Our longitudinal analyses suggest that reporting has a fairly strong deterrent effect, whereas the effect of arrest is small and statistically insignificant. We find no support for the hypothesis that offenders retaliate when victims (rather than third parties) call the police or when victims sign complaints. We also find no evidence that the effects of reporting or arrest depend on the seriousness of the offense, a history of violence by the offender or sociodemographic characteristics. Our results suggest that the best policies for deterrence will be those that encourage victims and third parties to report violence by intimate partners to the police.

 

Felstiner, W.L.F. (1974). Influences of social organization on dispute processing. Law & Society Review, 1, 63-94.

 

TWO MAJOR TYPES OF SOCIAL ORGANIZATION MAY BE IDENTIFIED: THE TECHNOLOGICALLY COMPLEX RICH SOCIETY (TCRS), AND THE TECHNOLOGICALLY SIMPLE POOR SOCIETY (TSPS). IN A TCRS THE FAMILY IS NUCLEAR AND BIOLOGICAL, WELFARE FUNCTIONS ARE STATE-PERFORMED, INTERPERSONAL RELATIONSHIPS TEND TO BE SHORT AND UNSTABLE, VOCATIONAL AND RESIDENTIAL MOBILITY ARE HIGH, AND LARGE-SCALE BUREAUCRATIC OPERATIONS DOMINATE VARIOUS ASPECTS OF LIFE. CONVERSELY, IN A TSPS, FAMILIES ARE OFTEN EXTENDED AND SYMBOLIC, RELATIONSHIPS ARE GEOGRAPHICALLY RESTRICTED, VOCATIONAL MOBILITY IS LOWER, SOCIAL ASSOCIATIONS ARE STABLE AND LOCAL, AND MOST ACTIVITIES TEND TO BE INDIGENOUS AND DECENTRALIZED. IN THE TSPS, CITIZEN CONFRONTATION WITH LARGE-SCALE BUREAUCRACY IS USUALLY LIMITED TO WELFARE AND OTHER GOVERNMENTAL ACTIVITIES (FAMINE RELIEF, PUBLIC WORKS). DISPUTE PROCESSING MAY TAKE THE FORM OF ADJUDICATION, MEDIATION, OR AVOIDANCE. ADJUDICATION RELIES ON THIRD-PARTY INTERVENTION AND IS BASED ON COERCIVE POWER. AS SUCH IT MAY BE INFLUENCED BY A WIDE VARIETY OF EXTRINSIC FACTORS AND REQUIRES EXPERTISE IN RULES GOVERNING SOCIAL CONDUCT AND OFTEN ALSO IN RULES REGARDING THE CONDUCT OF DISPUTE. ADJUDICATION TENDS NATURALLY TO BE ALIENATING. MEDIATION, WHILE ALSO REQUIRING THIRD-PARTY INTERVENTION, DEPENDS UPON THE CONSENT OF THE DISPUTANTS TO PROPOSALS OF ACCOMMODATION. MEDIATION DOES NOT RELY UPON COERCIVE POWER, BUT DOES REQUIRE THAT THE MEDIATORS SHARE THE SOCIAL AND CULTURAL EXPERIENCES OF THE DISPUTANTS AND THAT MEDIATORS BRING TO THE DISPUTE-PROCESSING SITUATION AN INTIMATE AND DETAILED KNOWLEDGE OF THE PERSPECTIVES OF THE DISPUTANTS. AVOIDANCE RELIES UPON LIMITING OF THE RELATIONSHIP AMONG DISPUTANTS SO THAT THE DISPUTE LOSES ITS SALIENCE. THE COST OF AVOIDANCE IS ALWAYS A REDUCTION IN THE CONTENT OF THE RELATIONSHIP WHICH HAS BEEN TRUNCATED OR TERMINATED. IN A TSPS, ADJUDICATION AND MEDIATION WILL TEND TO BE AT THE LEVEL OF FACE-TO-FACE GROUPS SUCH AS KIN UNITS, FACTIONS, OR VILLAGES. AVOIDANCE TENDS NOT TO BE USED BECAUSE OF ITS HIGH SOCIAL COSTS. CONVERSELY, IN A TCRS, AVOIDANCE WILL HAVE TOLERABLE COSTS, WHILE ADJUDICATION AND MEDIATION WILL BE MORE DIFFICULT TO INSTITUTIONALIZE BECAUSE OF THE COERCIVE AND ALIENATING NATURE OF THE ONE AND THE NEED FOR SHARED EXPERIENCE IN THE OTHER. NEIGHBORHOOD MOOT SYSTEMS BASED ON EXPERIENTIAL AND ATTITUDINAL SIMILARITY, AND RELIGIOUS ARBITRATION BOARDS BASED ON THE ABILITY TO FORCE COMPLIANCE, WILL CONSEQUENTLY BE DIFFICULT TO INSTITUTIONALIZE. NEIGHBORHOOD COURTS AND CONFLICT RESOLUTION CENTERS MAY BE MORE SENSITIVE TO THE PREREQUISITES OF ADJUDICATION AND MEDIATION AND MAY BE MORE VIABLE. HOWEVER, AVOIDANCE WOULD APPEAR TO BE THE MOST LIKELY RECOURSE TO DISPUTE PROCESSING. SUBSTANTIAL REFERENCES ARE INCLUDED.

 

Felstiner, W.L.F., Abel, R.L. and Sarat, A. (1980-1981). The emergence and transformation of disputes: Naming, blaming, claiming…” Law & Society Review, 15, 631-654.

 

The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial for a account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low.

 

Friedman, L.M., (1986). The law and society movement. Stanford law Review, 38, 763-780.

 

An overview of the law and society movement and directions for future research

 

Frohmann, L. (1997). Convictablity and discordant locales: Reproducing race, class, and gender ideologies in prosecutorial decisionmaking. Law & Society Review, 31, 531-556.

 

Using ethnographic data, I examine prosecutors’ discourse on case convictability (the likelihood of a guilty verdict at trial) in sexual assault cases. The analysis shows how prosecutors construct discordant locales through their categorization of victims, defendants, jurors, and their communities and the location of crime incidents. It demonstrates how prosecutors use discordant locales to justify case rejection. By ascribing stereotypical characteristics of a neighbor- hood to victims, defendants, and jurors, prosecutors construct distinct groups with different cultures who live in geographically separate spaces and have different schemes through which they interpret the everyday world. To construct discordant locale categorizations, prosecutors employ race, class, and gender imagery. Through this imagery they construct multiple normative standards of moral character of persons and of places. I argue that through the categorizations of place as discordant locales, prosecutors inadvertently reproduce race, class, and gender ideologies in legal decisionmaking. I conclude with policy suggestions for expanding and equalizing citizens’ access to justice.

 

Frohmann, L. (1998). Constituting power in sexual assault cases: Prosecutorial strategies for victim management. Social Problems, 45, 393-407.

This paper examines the interactive processes through which prosecutors manage sexual assault victims during complaint filing interviews. Using ethnographic data from the post-rape-law-reform period and the micro- politics of trouble framework, I identify three strategies prosecutors use to manage complainants: displays of concern, specifying downstream possibilities, and shifting paradigms. I argue that prosecutors access to legal resources and remedies, as well as their insiders knowledge of the system severely constrain victim’s power. I suggest, given current legal practices, the efficaciousness of rape law reform is questionable

 

Galanter, M. (1974). Why the “haves” come out ahead: Speculations on the limits of legal change. Law & Society Review, 9, 95-160.

 

This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers.

 

Galanter, M. (1983). Reading the landscape of disputes: What we know and don’t know (and think we know) about our allegedly contentious and litigious society. UCLA Law Review, 4, 4-71.

 

Data on the prevalence and processing of disputes and litigation were assembled and analyzed. They show that only a small portion of troubles and injuries become disputes; only a small portion of these become lawsuits. Of those that do, the vast majority are abandoned, settled, or routinely processed without full-blown adjudication. Comparison of current with past litigation rates shows a recent rise, but present levels are not historically unprecedented. Admittedly weak comparisons with data from other jurisdictions suggest that per capita rates of litigation in U.S. courts fall in the same general range as those of England, Australia, Ontario (Canada) and others, but are higher than those of other industrialized countries. Changes in patterns of governmental activity, in the organization of legal work, and in the relation of the media to the law combine to enlarge litigation as a symbolic presence even when direct personal experience of full-blown adjudication has become relatively less frequent. Contemporary patterns of disputing should be seen as a relatively conservative adaptation to changing conditions, including, for example, changes in the production of injuries, knowledge about them, education, and so forth. Elite perceptions of an eruption of pathological litigiousness are viewed as a symptom of the weakness of contemporary legal scholarship. Tabular data and 298 footnotes are provided. (Author abstract modified).

 

 

Glenn, N.D. (1997). A reconsideration of the effect of no-fault divorce rates. Journal of Marriage and the Family, 59, 1023-1025.

 

A recent article published in this journal is now being widely cited in committee hearings of state legislatures in the United States as bills are introduced that would limit access to no-fault divorce. In that article, Nakonezny, Shull, and Rodgers (1995) report on a study designed to assess the effects of the adoption of no-fault provisions by the 50 states. The authors conclude that the results of their research show that “the switch from fault divorce law to no-fault divorce law led to a measurable increase in the divorce rate . . .” and that “this increase was an average of .80 divorces per 1,000 individuals per year in the state population. . .” (p. 485)…

 

Grana, S.L, Ollenburger, J.C. and Nicholas, M. (2002). “Gender, race, social class, and law.” The Social Context of Law, 2nd Edition, Upper Saddle River, NJ: Prentice Hall.

One of the best ways to illustrate the social context of law is to examine social variables.  Because dominant beliefs are often codified into laws, understanding the influence of social conditions, people, and social class.  While we choose to separate these variables to study them, it is very important to understand that in reality they are very much intertwined.  The innterconnection of gender and class or gender and race is a strong influence on how a person is affected by the law.  We begin our discussion with gender.

 

Green, P. (2004). The paradox of the promise unfulfilled: Brown v. Board of Education and the continued pursuit of excellence in education. The Journal of Negro Education, 73, 268-284.

 

This article illuminates the educational and social paradox created by the U.S. Supreme Court in striking down the legal doctrine of “separate but equal. ” Based upon its interpretation of the social science evidence of damage imagery, the Court viewed the psychological harms of segregation as problems faced exclusively by African American students and their communities. White communities and students, on the other hand, were considered healthy and unscathed by the affects of racial segregation. With this in mind, this article discusses how the implementation of racial balance remedies by White municipal, civic, and educational leaders resulted in the loss of African American public school teachers and concomitant influences on the communities in which they resided. This article concludes with a discussion of the research surrounding the importance of teachers of color in serving increasingly diversified communities and students of color in America’s public schools.

 

Harrington, C.B. & Merry, S.E. (1988). Ideological production: The making of community mediation. Law & Society Review, 22, 709-736.

 

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.

 

Hartley, R.D., Madden, S. and Spohn, C.C. (2007). Prosecutorial discretion: An examination of substantial assistance departures in federal crack-cocaine and powder-cocaine. Justice Quarterly, 24, 382-407.

 

Recently there has been a call for research that explores decision-making at stages prior to sentencing in the criminal justice process. Particularly research is needed under a determinate sentencing system where judicial dispositions are usually restricted by guidelines, which increases the importance of earlier decision-making stages. As an answer to this call, and in an attempt to build on currents studies on the effects of departures as an intervening mechanism, and a source of unwarranted disparity, this study explores federal sentencing data on offenders convicted of crack-cocaine and powder-cocaine offenses. Although decision-making of all criminal justice actors generally, and prosecutors specifically, has been the subject of much research, studies have yet to resolve the nature and outcome of their “autonomous” discretion. This autonomy becomes especially salient regarding prosecutorial decisions for substantial assistance departures. In deciding who receives a substantial assistance departure, the prosecutor has carte blanche power.

 

Hawkins, A.J., Nock, S.L., Wilson, J.C., Sanchez, L., and Wright, J.D. (2002). Attitudes about covenant marriage and divorce: Policy implications from a three-state comparison.

 

We report research on public opinions about covenant marriage and divorce to inform policy analysts of the social climate in which these legal initiatives are taking place. We collected data via telephone surveys from a sample of 1,324 adults in Louisiana, Arizona, and Minnesota. From these data, we draw four implications for policy: policy efforts designed to strengthen marriage and reduce divorce, such as covenant marriage, may be popular in states with people who generally have more conservative gender-role ideologies and who are religiously active; individuals who hold conservative gender-role ideologies and who are religiously active are more likely to choose covenant marriage for themselves; legislation dealing with specific components of covenant marriage is likely to be more popular in many states than legislation offering the full set of measures; and these legislative efforts generally will not be divisive along sociodemographic lines.

 

Herek, G.M. (2002). Gender gaps in public opinion about lesbians and gay men. The Public Opinion Quarterly, 66, 40-66.

 

Using data from a 1999 national RDD survey (N = 1,335), this article examines gender gaps in heterosexuals’ attitudes toward lesbians, gay men, and a variety of topics related to homosexuality. Attitudes toward lesbians differed from attitudes toward gay men in several areas, and significant differences were observed between male and female heterosexual respondents. Survey participants generally were more likely to regard gay men as mentally ill, supported adoption rights for lesbians more than for gay men, and had more negative personal reactions to gay men than to lesbians. Overall, heterosexual women were more supportive than men of employment protection and adoption rights for gay people, more willing to extend employee benefits to same- sex couples, and less likely to hold stereotypical beliefs about gay people. Heterosexual men’s negative reactions to gay men were at the root of these gender differences. Of all respondent-by-target combinations, heterosexual men were the least supportive of recognition of same-sex relationships and adoption rights for gay men, most likely to believe that gay men are mentally ill and molest children, and most negative in their affective reactions to gay men. Heterosexual men’s response patterns were affected by item order, suggesting possible gender differences in the cognitive organization of attitudes toward gay men and lesbians. The findings demonstrate the importance of differentiating lesbians from gay men as attitude targets in survey research.

 

Horney, J. and Spohn, C. (1991). Rape law reform and instrumental change in six urban jurisdictions. Law & Society Review. 25, 117-154.

 

Concerns about the treatment of rape victims and attrition in rape cases prompted a nationwide movement to reform state rape laws. In this study we evaluate the impact of rape law reforms on reports of rape and the processing of rape cases in six urban jurisdictions-Detroit, Chicago, Philadelphia, Atlanta, Houston, and Washington, D.C. Our results strongly suggest that the ability of rape reform legislation to affect case outcomes is limited. Time-series analyses revealed that predicted results were found in only one of the six jurisdictions, and there the results were limited.

 

Hunt, D.M. (1997). (Re)affirming race: “Reality,” negotiation, and the “trial of the century.” The Sociological Quarterly, 38, 399-422.

 

This article combines insights from the social construction of reality tradition and recent works on audience ethnography to explore the ritualistic process by which racial boundaries are continually policed, (re)affirmed and (re)produced. The so-called black-white divide in perceptions of the 0. J. Simpson double murder trial serves as the case study. This case is understood as a classic media event in which different societal groups struggle to privilege particular understandings of reality, to either maintain or improve their statuses in society. Two ten-member groups-one group black, one white-were tracked over the course of the criminal trial. Findings outline how “raced ways of seeing” figured in the process by which the groups attributed meanings to the case and case-related media constructions.

Study conclusions consider the implications for “evidence,” epistemology, and contemporary U. S. race relations.

 

Huntley, J.E. and Costanzo, M. (2003). Sexual harassment stories: Testing a story-mediated model of juror decision-making in civil litigation. Law and Human Behavior, 27, 29-51.

 

The story model of juror decision-making proposes that jurors use personal experience and information presented at trial to create stories that guide their verdicts. This model has received strong empirical support in studies using criminal cases. The research presented here extends the story model to civil litigation and tests a story-mediated model against an unmediated model of jury decision-making. In Phase 1, content analysis of mock juror responses to 4 realistic sexual harassment cases revealed prototypic plain- tiff and defense stories. In Phase 2, these prototypic stories were included as mediators in a model predicting verdicts in 4 additional sexual harassment cases. Mock juror attitudes, experiences, and demographics were assessed, then attorneys presented abbreviated versions of 4 actual sexual harassment cases. Path analyses provided support for the story-mediated model, which added significantly to the amount of variance accounted for in the outcome measures of verdict, commitment to verdict, and confidence times verdict. Implications for sexual harassment and other types of civil cases are discussed.

 

Jasanoff, S. (1998). The eye of everyman: Witnessing DNA in the Simpson Trial. Social Studies of Science, 28, 713-740.

 

Science was supposed to clinch OJ Simpson’s guilt in the criminal trial that entranced both press and public in the United States for ten months in 1995. Prosecutors mistakenly expected the powerful technique of DNA fingerprinting, or ‘DNA typing’, to establish Simpson’s presence at the crime scene and to confirm his subsequent flight to his own estate. By acquitting Simpson after less than four hours of deliberation, the jury sensationally rebuffed the prosecutors’ expectations. Fifteen months later, it was the mundane evidence of bloody shoeprints, not scientific authority, that prompted a civil judgment against Simpson for the same killings. In exploring science’s failure to persuade the first Simpson jury, this paper focuses on the trial as an arena in which visual authority had to be created and defended. Scientific evidence must be seen to be believed; yet, a trial is also a proceeding in which visual authority is deeply contested. The paper suggests that the judge’s r6le in constructing authorized lines of sight has not received sufficient attention in legal analysis and procedural reform. In the Simpson trial, as in other cases involving expert witnesses, the judge’s uncontested remarks and rulings established at many crucial points whose vision would be authorized as expert, and in what circumstances lay vision could take precedence over expert sight.

 

Johnson, D.T. (1998). The organization of prosecution and the possibility of order. Law & Society Review, 32, 247-308.

 

In prosecution, as in armies, prisons, and schools, organization matters. Japanese prosecutors work in an organization that differs markedly from the organizations in which their American counterparts work. This fact has important implications for how prosecutors in Japan define and perform their central tasks and thus for the quality of Japanese criminal justice. Most critically, the Japanese way of organizing prosecution enables prosecutors to effectively manage the tension between two imperatives of justice that American regard as often incompatible and always in tension: the need to individualize case dispositions and the need to treat like cases alike so as to achieve “order.” As mirror and model, Japan can teach the United States how to improve the level of order in its own systems of criminal justice.

 

Kalof, L., Eby, K.K., Matheson, J.L., and Kroska, R.J. (2001). The influences of race and gender on student self-reports of sexual harassment by college professors. Gender and Society, 15, 282-302.

 

A survey of 525 undergraduates found that40 percent of the women and 28. 7percent of the men had been sexually harassed by a college professor or instructor. Most incidents were gender harassment. While women reported significantly more gender harassment than did men, there were no gender differences in the frequency of unwanted sexual attention or sexual coercion. At least one incident of sexual harassment by a professor was experienced by 30percent of the Blacks, 30percent of the Hispanics, 33 percent of the Asians, 30 percent of the students of other minority groups, and 39 percent of the whites. Again, most of the experiences were gender harassment. Among those respondents who had experienced at least one incident of sexual harassment, almost all answered “never” to the question “Have you ever been sexually harassed by a college professor or instructor? ” We conclude with some suggestions, particularly the need to improve measurement of the harassment experiences of men and of nonwhite women.

 

Kennedy, D. (1982). Legal education and the reproduction of hierarchy. Journal of Legal Education, 32, 591-615.

 

Starting from the assumption that law schools are intensely political, these issues are discussed: the first-year experience, ideological content of the curriculum, noncurricular practices that train students for the legal hierarchy, and ways for progressive students to deal with the experience. A utopian law school transformation is proposed.

 

Konradi, A. (1996). Preparing to testify: Rape survivors negotiating the criminal justice process. Gender and Society, 10, 4040-432.

 

This article is about how rape survivors prepare them selves for courtroom appearances. Through it, the author attempts to take research on rape processing beyond a focus on the affective responses of rape “victims” have to the behavior of legal personnel and toward an investigation of the agency of rape survivors. The study builds on law and society research about lay litigants’ efforts to use the U.S. civil court system, linguistic research about witnesses involvement in courtroom interaction, and the existing literature on rape processing. It is based on face-to-face interviews with 32 survivors and 12 courtroom observations. The analysis is inductive; the presentation is ethnographic. The author explicates six types of preparation for court: appearance work, role rehearsal, emotion work, team building, role research, and case enhancement. The author discusses how survivors’ perceptions of what the criminal justice process entails are reflected in the different preparation activities, and the author offers policy implications regarding the treatment of rape survivors in the criminal justice system.

 

Krtizer, H.M. (1991). Propensity to sue in England and the United States of America: Blaming and claiming in tort cases. Journal of Law and Society, 18, 400-427.

 

This article presents a comparative analysis of one aspect of the propensity to sue: the behavior of English and Americans in cases involving seeking compensation for injury. The article first surveys the literature on the topic, most of which has found a significantly higher claiming rate among Americans than among the English. Kritzer examines this “claiming gap” in more detail, and also asserts that there is a “blaming gap”: Americans are more likely to externalize fault and/or causation for their injury. Furthermore, he argues, in England externalization appears to be a necessary condition for claiming, while in the US it is often a sufficient condition. Kritzer argues that while some of the difference in behavior may be attributed to the incentives and disincentives of the court system (cost rules, etc.) comparative analysis shows that such factors can only explain a small part of the blaming and claiming gaps. He argues that the key difference has to do with expectations of compensation. These expectations are related to the compensation system, and also to the cultural system. He concludes by contending that there needs to be more work on the cultural and symbolic sources of litigation behavior.

 

Kulik, C.T., Perry, E.L., and Pepper, M.B. (2003). Here comes the judge: The influence of judge personal characteristics on federal sexual harassment case outcomes. Law and Human Behavior, 27, 69-86.

 

This study explored the effects of judges’ personal characteristics (gender, race, age, and political affiliation) and case characteristics on the outcomes of federal cases of hostile environment sexual harassment. Results revealed that even after controlling for the effects of relevant case characteristics (e.g., severity of the harassment), judges’ personal characteristics influenced case outcomes. Specifically, younger judges and Democrat judges were more likely to find for the plaintiff (the alleged victim of harassment). The probability that the decision would favor the plaintiff was only 16% when the case was heard by an older judge but 45% when heard by a younger judge. The probability that the decision would favor the plaintiff was only 18% when the case was heard by a judge who had been appointed by a Republican president but 46% when the judge had been appointed by a Democrat president.

 

Langer, M. (2006). Rethinking plea bargaining: The practice and reform of prosecutorial adjudication in American criminal procedure. American Journal of Criminal Law, 33, 223-299.

 

This article proposes a new theoretical framework to analyze and reform prosecutorial adjudication and plea bargaining, two of the most heatedly debated and practically relevant topics in American criminal procedure. Relying on insights from moral philosophy, the article distinguishes between two different types of plea bargaining. In the first type, the prosecutor unilaterally decides who is innocent and guilty, and for which offense, by using coercive plea proposals, which make the defendant’s guilty plea involuntary. In the second type of plea bargaining, the prosecutor and the defendant bilaterally adjudicate the case through a voluntary agreement. The article shows that it is only in the former type of plea bargaining that we may consider the prosecutor as the sole adjudicator of the case. The article also explains that this system of unilateral prosecutorial adjudication is neither an adversarial nor an inquisitorial system, but a hybrid system that has not been identified so far. In addition, the article also makes clear why the first type of plea bargaining that enables unilateral prosecutorial adjudication violates the requirements of due process, while the second type does not. With the adoption of key reforms, the article further argues, plea bargaining may be practiced in a manner preclusive of unilateral prosecutorial adjudication and consistent with due process.

 

Lee, C.K.Y. (). Beyond black and white: Racializing Asian Americans in a society obsessed with O.J. Hastings Women’s Law Journal, 6, 165-207.

 

The O.J. Simpson double murder trial has been called the “Trial of the Century” and has captured the attention of millions.  The trial has raised interesting questions about the convergence of issues regarding race, class, and gender.  Rather than extensively discussing these global issues, this essay will focus on one aspect of the race issues that has largely been ignored: racial representations of Asian Americans that occurred in connection with the Simpson case.  The implications of such representations are important not because they occurred in connection with the Simpson case, but because they reflect and highlight the fact that racial stereotyping of Asians and Asian Americans is so commonplace in today’s society that it occurs even under the most unlikely circumstances and even by the most well meaning persons.  This essay explains that it is important to be conscious of the socially constructed nature of race and the harmful consequences of racial representations.

 

Lempert, R. and Monsma, K. (1994). Cultural differences and discrimination: Samoans before a public housing eviction board. American Sociological Review, 59, 890-910.

 

In Hawaii Samoans are a stigmatized ethnic group. We examine how this group is treated by a public housing eviction board. Statistical analysis suggests Samoans are discriminated against in financial cases. Interviews indicate, however, that Samoans are disadvantaged largely because their excuses are not persuasive and would not be regardless of the ethnicity of the tenants making them. In this sense Samoans are treated “like any other tenant,” and illegal discrimination, as defined by the Fourteenth Amendment, has not occurred. But Samoans make unpersuasive excuses more often than other tenants because excuses that are reasonable in the context of Sa- moan culture do not seem reasonable to judges from a different culture. Thus among tenants behind in their rent, Samoans fare worse than do non-Samoans, much as they might fare if board members held anti-Samoan prejudices. We call this implication of cultural hegemony “cultural discrimination” and note the dilemmas it poses, not the least of which is that it makes problematic the very concept of discrimination.

 

Lind, E.A., Greenberg, J., Scott, K.S., and Welchans, T.D. (2000). The winding road from employee to complaintant: Situational and psychological determinants of wrongful-termination claims. Administrative Science Quarterly, 45, 557-590.

 

Structured interviews with 996 recently fired or laid-off workers provided data for analyses of the situational and psychological antecedents of both thinking about filing a wrongful-termination claim and actually filing such a claim. Potential antecedents were drawn from relational theories of organizational justice, economic theories about claiming, and sociolegal studies of claiming in other contexts. Wrongful-termination claims were most strongly correlated with the way workers felt they had been treated at the time of termination and with their expected winnings from such a claim. Structural equation model analyses of panel data from follow-up interviews with 163 respondents four months later showed that the psychological variables were, in fact, causal antecedents rather than consequences of claiming thoughts and actions. These findings support relational models of organizational justice and lead to practical suggestions for managing the termination process so as to avoid wrongful-termination suits.

 

Lynch, D. (1994). The impropriety of plea agreements: A tale of two counties. Law & Social Inquiry, 19, 115-133.

 

In this article, the author, a former prosecutor and a former assistant public defender, draws on his five and a half years of experience as a “professional plea bargainer” to explore the many subtleties of a practice that he suggests leads to work avoidance, misplaced loyalties, coercion, and other negative characteristics on the part of courthouse regulars, and to injustice for those criminal defendants who do not wish to plead guilty. He suggests that criminal courts have become overly dependent on plea bargaining, which is used much more extensively than is either necessary or appropriate.

 

Lynch, M. (1998). The discursive production of uncertainty: The OJ Simpson ‘Dream Team’ and the sociology of knowledge machine. 28, 829-868.

 

DNA ‘fingerprinting’ and other methods of genetic profiling have been used in connection with hundreds of criminal trials in the UK, USA and other nations. These molecular biological techniques are employed by the prosecution (and less often by the defense) to produce forensic evidence. By means of these techniques, selected DNA fragments extracted from a suspect’s blood sample or cheek swab are compared with residues of blood, semen, skin, excreta, saliva and hair follicles collected at a crime scene. DNA-profiling evidence has been successfully challenged in a few highly publicized cases, but in the vast majority of cases such evidence has been accepted. The extensive testimony and documentation arising from cases like the 1994-95 double-murder trial of OJ Simpson in Los Angeles enable a close study of how the credibility of experts and their practices is fashioned and undermined in testimony. The arguments by the Simpson defense team delved into the practical contingencies and sources of uncertainty associated with forensic uses of DNA- profiling techniques. These arguments resemble many of the general conceptions of scientific practice within the sociology of scientific knowledge. Indeed, the resemblance is so close that the paper faces an interesting dilemma: what can be said about this case that has not already been said as part of the production and public discussion of its details?

 

Macaulay, S. (1987). Images of law in everyday life: The lessons of school, entertainment and spectator sports. Law & Society Review, 21, 185-218.

 

Some of us see law as largely marginal to American life (see, e.g., Macaulay, 1984), but other colleagues assert that law constitutes society. One position does not contradict the other because we are talking about different things. Cases, statutes, and enforcement agencies very seldom directly influence every- day life. At the same time, law is an important part of culture. Despite many debates (see, e.g., Hall, 1977; Harris, 1980; Ortner, 1984), legal culture affects everyday life in important ways. At the very least, it provides a vocabulary with which we rationalize our actions to others and ourselves. As Geertz (1983: 173, 232) insists, “law is not a bounded set of norms .. ., but part of a distinctive manner of imagining the real.” Law is “meaning . . . not machinery.” It is “a species of social imagination.” It “is constructive of social realities rather than merely reflective of them.”

 

Mather, L. (2003). Reflections on the reach of law (and society) post 9/11: An American superhero? Law & Society Review, 37, 263-282.

 

Presidential address to the Law & Society Association’s annual meeting

 

Matoesian, G.M., (1995). Language, law, and society: Policy implications of the Kennedy Smith rape trial. Law & Society Review, 29, 669-701.

 

In this article I examine the applied relevance of trial talk for rape shield legislation and attempts to evaluate the impact of such legal reforms. Using linguistic data from the Kennedy Smith rape trial, I argue that attempts to progressively implement rape shield have thus far failed and that research evaluating its impact has been more or less misguided because reformers and re- searchers have consistently failed to scrutinize empirically the interactional object to which rape shield legislation is applied: the language of evidence in testimony. Looking at the social construction of rape’s legal facticity, I propose new methods of interpreting and evaluating legal reforms based on an under- standing of language use and the performance of knowledge in context.

 

May, M.L. and Stengel, D.B. (1990). Who sues their doctors? How patients handle medical grievances. Law & Society Review, 24, 105-120.

 

This article applies the dispute processing model developed by Felstiner, Abel, and Sarat (1980-81) to disputing between patients and doctors. We conducted interviews with 240 dissatisfied patients to examine the dispute resolution choices they made in response to unsatisfactory medical experiences. Probit models were constructed for each of five resolution choices, incorporating independent variables derived form the Felstiner et al. conceptual model. These analyses go beyond previous studies of medical malpractice by (a) presenting a comparative analysis of users and nonsuers, (b) not relying on closed malpractice case data, and (c) presenting the perspective of aggrieved patients.

 

Mears, D.P. (1998). The sociology of sentencing: Reconceptualizing decisionmaking processes and outcomes. Law & Society Review, 32, 667-724.

 

Research on juvenile and adult sentencing has been characterized by theoretical, methodological, and empirical limitations that preclude adequate description, prediction, or assessment of decisionmaking processes and outcomes. Five limitations are prominent: emphasis on atheoretical, empirical attempts, generally unsuccessful, to increase predictive accuracy; limited conceptualizations of dependent variables (e.g., incarceration versus nonincarceration); overreliance on individual, offender-level data with minimal reference to victims, practitioners, or contextual factors; failure to incorporate analytically multiple research methods; and inattention to intended and unintended uses and effects of sentencing. These limitations can be highlighted by focusing on a context–juvenile justice–in which the goals of sentencing are varied, conflicting, and, due to recent reforms, changing. Using interview and survey data, the present research examines juvenile sentencing reform in Texas to highlight these limitations and to outline an analytical framework for improved description, modeling, and assessment of sentencing.

 

Merry, S.E. (1979). Going to court: Strategies of dispute management in an American urban neighborhood. Law & Society Review, 13, 891-925.

 

An analysis of the strategies of disputing pursued by the residents of a polyethnic American urban neighborhood reveals that they frequently resort to courts to manage interpersonal and crime-related disputes. Because the legal machinery available to them rarely resolves these disputes, however, the court functions as a sanction rather than a dispute settlement forum. In the absence of effective alternative informal or formal modes of resolving disputes, disputants resort to violence, avoidance, and endurance, a pattern of tolerating ongoing conflict.

 

Morgan, P.A. (1999). Risking relationships: Understanding the litigation choices of sexually harassed women. Law & Society Review, 33, 67-92.

Resource mobilization and gender socialization theories go a long way toward explaining why so many sexually harassed women opt not to report their problems, but they shed little light on why some still choose to take action and sue. This article examines how relationality can affect a sexually harassed woman’s decision to sue. An analysis of 31 litigation narratives shows that regardless of the severity of the harassment, or the amount of legal aid available, maternal responsibilities, marital commitments and parental approval can be- come pivotal considerations. Some considered the integrity of familial ties to be priceless assets worth suing for. Others deemed them too valuable to risk losing in a contest over rights. These narratives confirm feminist assertions that relationships-especially familial ones-often play a central role in the choices that women make. They also challenge popular assumptions about what constitutes a “personal choice” and under what circumstances women are likely to chose to litigate.

 

Mullis, J. (1995). Medical malpractice, social structure, and social control. Sociological Forum, 10, 135-163.

 

The origin and handling of doctor-patient conflict can be understood with reference to the sociological aspects of professional health care. This premise is explored by applying Black’s theory of social control to the empirical evidence concerning malpractice litigation in the United States. The vertical, organizational, and relational distances between the health care provider and the patient are particularly relevant for predicting when malpractice claims will be made and how they will be resolved. These social-structural variables help explain several patterns in the American malpractice experience, including the aggregate increase in claim rates over the past four decades; the persistence of toleration as the modal response to medical injury; why poorer patients are less suit-prone than higher income patients; why surgical specialties have higher claim rates than general practice and psychiatry; why hospitals are sued disproportionately less often than individual doctors; and the relatively high frequency of prodefendant decisions when lawsuits are decided by a judge or jury.

 

Musheno, M. (1997). Legal consciousness on the margins of society: Struggles against stigmatization in the AIDS crisis. Identities, 2, 101-122.

 

This study compares how two groups of people, situated at the margins of society, position themselves differently with regard to the law: the HIV-infected women themselves as objects of surveillance, while gay men with HIV imagine themselves as rights-bearers.  At the same time, both groups are influenced by a core liberal presupposition embedded in the American legal order that promotes individualism.  Both groups express the conditions of their lives as a product of individual choices, and as a consequence, turn stigmatization, trouble, and injury back upon themselves in the form of self-blame.  This expression of self-blame is most pervasive among the female injection drug users, in that it is reinforced by moral and therapeutic discourses associated with drug addiction.

 

Nielsen, L.B. (2000). Situating legal consciousness: Experiences and attitudes of ordinary citizens about law and street harassment. Law & Society Review, 34, 1055-1090.

 

The legal consciousness of ordinary citizens concerning offensive public speech is a phenomenon whose legal status has been vigorously debated, but which has received little empirical analysis. Drawing on observations in public spaces in three northern California communities and in-depth interviews with 100 subjects recruited from these public locations, I analyze variation across race and gender groups in experiences with offensive public speech and attitudes about how such speech should be dealt with by law. Among these respondents, white women and people of color are far more likely than white men to report being the targets of offensive public speech. However, white women and people of color are not significantly more likely than white men to favor its legal regulation. Respondents generally oppose the legal regulation of offensive public speech, but they employ different discourses to explain why. Subjects’ own words suggest four relatively distinct paradigms that emphasize the First Amendment, autonomy, impracticality, and distrust of authority. Members of different racial and gender groups tend to use different discourses. These differences suggest that the legal consciousness of ordinary citizens is not a unitary phenomenon, but must be situated in relation to particular types of laws, particular social hierarchies, and the experiences of different groups with the law.

 

O’Barr, W.M. and Conley, J.M. (1988). Lay expectations of the civil jury system. Law & Society Review, 22, 137-162.

 

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 con- ducted 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.

 

Paternoster, R., Brame, R., Bachman, R., and Sherman, L.W. (1997). Do fair procedures matter? The effect of procedural justice on spouse assault. Law & Society Review, 31, 163-204.

In a reanalysis of the Milwaukee Domestic Violence Experiment, we ex- amine whether the use of fair procedures on the part of police officers called to the scene of a domestic assault inhibits subsequent assault. Consistent with expectations, we found that procedural justice did suppress subsequent violence, even in the face of adverse outcomes. When police acted in a procedurally fair manner when arresting assault suspects, the rate of subsequent domestic violence was significantly lower than when they did not. Moreover, suspects who were arrested and perceived that they were treated in a procedurally fair manner had subsequent assault rates that were as low as those suspects given a more favorable outcome (warned and then released without arrest). The suppression effect of procedural justice did not depend on the personal characteristics of suspects.

 

Payne, C.M. (2004). “The whole United States” is southern!”: Brown v. Board and the mystification of race. The Journal of American History, 91, 83-91.

Brown v. Board of Education (1954) is becoming a milestone in search of something to signify. It would be going too far to think of the case as an early example of a media event, as more hype than substance, but even with a half century of perspective, it is difficult to say with confidence just why Brown has seemed to matter so much. School desegregation on a broad scale does not seem to be feasible public policy. In 1962, after eight years of experience with Brown, one writer observed that at the then-current pace, Deep South schools could be completely desegregated in just a bit over seven thousand years. Some of the progress made toward desegregation in the 1960s and 1970s has eroded. When desegregation does occur, the social and academic outcomes are not so uniformly positive as was once hoped. The oft-repeated idea that Brown inspired more civil rights activism is plausible, but no one has made more than an anecdotal case for it. Indeed, a better case can be made for Smith v. Allwright, the 1944 Supreme Court decision outlawing the white primary. In 1940, the percentage of all southern blacks who were registered to vote was estimated at below 5 percent. In 1947 the percent registered jumped to 12 percent, by 1952 to 20 percent. The increase seems directly attributable to the black voter registration drives that occurred across the South following Smith. The decision energized the modern civil rights movement and ended black political exclusion. As for Brown, in perhaps the most important revisionist critique of the decision, the legal scholar Michael J. Klarman argued that strong links exist between the decision and the mobilization of white southern resistance to racial change.

 

Radelet, M.L. and Pierce, G.L. (1985). Race and prosecutorial discretion in homicide cases. Law & Society Review, 19, 587-622.

 

This paper examines the cases of 1017 homicide defendants in Florida. Two main data sources are used: the police department’s classification of the case, as found in the FBI’s Supplemental Homicide Reports, and the prosecutor’s classification, as determined by court records. Each data set characterizes the homicide as involving felonious circumstances, possible felonious circumstances, or nonfelonious circumstances. Attention is focused on cases that differ in their police and prosecutorial classifications. Results indicate that differences in these classifications are related to defendant’s and victim’s race, with blacks accused of killing whites the most likely to be “upgraded” and the least likely to be “downgraded.” The process of upgrading is then shown to significantly increase the likelihood of the imposition of a death sentence in cases with white victims where no plea bargain is offered.

 

Rodgers, J.L.,  Nakonezy, P.A., and Shull, R.D. (1999). Did no-fault divorce legislation matter? Definitely yes and sometimes no.  Journal of Marriage and the Family, 61, 803-809.

 

In our response to Glenn’s (1997) first critique of our original article (Nakonezny, Shull, & Rodgers, 1995), we took the middle ground. We did and still do feel that Glenn was correct that the no-fault divorce process included some redundancy, but only in some cases. In others, both empirical and logical reasons support that no-fault divorce laws explicitly facilitated the divorce process. In our earlier response (Rodgers, Nakonezny, & Shull, 1997), we presented a number of examples of the types of divorces that no-fault laws would be expected to impact most dramatically. The consistent position of Glenn that the redundancy argument applies “in most states” overstates the actual situation, as his own empirical results demonstrate…

 

Romero, D.W. and Romero, F.S. (2003). Precedent, parity, and racial discrimination: A federal/state comparison of the impact of Brown v. Board of Education. Law & Society Review, 37, 809-826.

 

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.

 

Rose, M.R. (2005). A dutiful voice: Justice in the distribution of jury service. Law & Society Review, 39, 601-634.

 

Jury service in the United States is both compulsory and yet distributed to some but not others in a nonsystematic way. Concerns about unfairness in this distribution system have led to legal changes; however, there is still little empirical information on how jurors view the jury selection process. This study considers jury selection in terms of participants’ perceptions of procedural and distributive justice. I argue that justice in this setting is related to areas of conflict between the decision maker and the prospective jurors, especially over privacy protection, despite strong rhetoric that jurors minimize their own preferences and rights in this setting. Data from interviews of 194 formerly excused and selected jurors support this contention.

 

Sarat, A. and Felstiner, W.L.F. (1988). Law and social relations: Vocabularies of motive in lawyer/client interaction. Law & Society Review, 22, 737-770.

 

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.

 

Schulhofer, S.J. (1994). A wake-up call from the plea-bargaining trenches. Law & Social Inquiry, 19, 135-144.

 

In an era of rising crime and youth violence, skyrocketing homicide rates in the inner cities, strapped municipal budgets and overwhelmed courts, what could be more untimely than a call to reduce plea bargaining and devote more resources to holding jury trials? Yet the issue of bargain justice, like the proverbial bad penny, stubbornly refuses to go away.  The concern persists, not only for a lonely band of academics but also for many ordinary citizens, that plea bargaining compromises our aspirations to justice at the same time that it undermines the effective punishment of serious offenders.

 

Schulhofer, S.J. (1985). No job too small: Justice without bargaining in the lower criminal courts. American Bar Foundation Research Journal, 10, 519-598.

 

Plea bargaining and other informal disposition devices dominate case processing in the lower criminal courts. Consistently, studies have found such courts characterized by assembly-line procedures, deemphasis or disregard of formal due process rights, and guilty plea rates approaching 100% of all convictions. Caseload pressures, tendencies toward cooperation among courtroom participants and, above all, process costs of litigation that greatly outweigh the stakes in minor cases are widely thought to render informality and high guilty plea rates inevitable. The study reported here challenges these assumptions. The author finds that in Philadelphia roughly one-fifth of all misdemeanor dispositions and one-half of all determinations of guilt are the result of genuine adversarial trials. He shows that an adversarial trial system need not impose prohibitive resource costs, even when extended to misdemeanor cases involving little likelihood of imprisonment, and that process costs will not deter defendants from invoking formal procedures when the court culture is committed to providing trials. Finally, the author argues that even routine misdemeanor cases benefit from guarantees of fairness and accuracy afforded by trial but unattainable when cases are processed by plea bargaining.

 

Seron, C., Frankel, M., Van Ryzin, G., and Kovath, J. (2001). The impact of legal counsel on outcomes for poor tenants in New York City’s housing court: Results of a randomized experiment. Law & Society Review, 35, 419-434.

 

This article presents results of the first randomized experimental evaluation of a legal assistance program for low-income tenants in New York City’s Housing Court. The results demonstrate that the provision of legal counsel produces large differences in outcomes for low-income tenants in housing court, independent of the merits of the case. For example, only 22% of represented tenants had final judgments against them, compared with 51% of tenants without legal representation. Similarly large advantages for tenants with an attorney also were found in eviction orders and stipulations requiring the landlord to provide rent abatements or repairs. In addition, the results suggest that a program of legal assistance for low-income tenants would not increase significantly the number of appearances in court, although it would increase the number of days to final judgment. The program may enhance the efficiency of adjudication by reducing the number of motions filed, particularly post-judgment motions. Limitations and policy implications of the study are discussed.

 

Seron, C. and Munger, F. (1996). Law and inequality: Race, gender…and, of course, class. Annual Reviews of Sociology, 22, 187-212.

 

This chapter discusses the concept of class in an important subfield, the sociology of law. Class, a pivotal institution of society, was central to the earliest studies of legal institutions and of law and inequality in particular. More recently, class has played a less important role. This chapter argues for the continuing importance of class and provides examples of its potential use in contemporary sociolegal research. The first part reviews early work that employed class and instrumental models of the state. Grounded, anti-formal models of law provided a contrasting view. Following wider trends in the discipline, sociology of law turned from structural models to theories of law as an ideology, and most recently, as reviewed in the second part, to law as an element of consciousness and experience. While acknowledging the value of contemporary research that documents a deeply textured, paradoxical, and nuanced analysis of the role of law in society, the third part argues for theorizing the link between experience and context, including the role of social class, and presents a research agenda for a sociology of law, where the relationship between law and class is considered both as institution and experience.

 

Sherman, L.W. and Cohn, E.G. (1989). The impact of research on legal policy: The Minneapolis domestic violence experiment. Law & Society Review, 23, 117-144.

 

Experimental research has recently shown a powerful impact on legal policy. An experiment demonstrating a deterrent effect of arrest on domestic violence has shaped public policy. Stimulated by efforts to publicize the results of the Minneapolis Domestic Violence Experiment (Sherman and Berk, 1984a), police departments were persuaded to adopt an arrest policy for misdemeanor domestic violence. Over one-third of respondents from U.S. police departments in 117 cities said their policy had been influenced by the experiment, although respondents from some departments that adopted an arrest policy did not recognize the experiment or its results. Lempert (1987, 1984), citing medical research as precedent, suggests that this impact is premature and inappropriate until replications are completed. However, we find no indication that medical research employs a standard of delaying adoption of research results prior to replication. Our analysis suggests that publicity can encourage replication of legal re- search at other sites and thus improve the knowledge base for policy recommendations.

 

Silbey, S.S. and Sarat, A. (1987). Critical traditions in law and society research. Law & Society Review, 21, 165-174.

 

This paper examines the place of critical inquiry within law and society studies. It suggests that such inquiry requires a periodic reexamination of both methodological and theoretical assumptions. In terms of method, critical inquiry would emphasize the particular and intensive as opposed to the general and extensive. In terms of theory, it calls attention to the limits of state legality and invites attention to ordinary social transactions in which the law appears invisible but is nonetheless powerful. The authors argue that it is possible to be both critical and empirical.

 

Soule, S.A. (2004). Going to chapel? Same-sex marriage bans in the United Stats, 1973-2000. Social Problems, 51, 453-477.

 

This article analyzes state-level same-sex marriage bans from 1973 to 2000 focusing on the relative impact of the political opportunity structure, citizen ideology, and interest organization strength on this particular policy change. Results suggest that all of these factors must be considered together to discern the relative importance of each, and that it is important to understand how these factors interact to produce policy change. Specifically, results show that interest organizations on both sides of the same-sex marriage debate, citizen ideology, and previous policy environments all influenced the adoption of these bans. While no support for political mediation arguments was found, when interest organizations on both sides of this issue were mobilized, supporters of bans were more important to legislative decisions than were non-supporters.

 

Spohn, C. (1990). The sentencing decisions of black and white judges: Expected and unexpected similarities. Law & Society Review, 24, 1197-1216.

 

Those who champion the representation of blacks on the bench argue that black judges may make a difference. Indeed, some suggest that increasing the proportion of black judges might result in more equitable treatment of black and white defendants. In this study we test these expectations. Using data on defendants charged with violent felonies, we compare the sentencing decisions of black and white judges in Detroit. We find remarkable similarities and conclude that judicial race has relatively little predictive power. More important, we find that both black and white judge sentence black offenders more severely than white offenders. Our results raise questions about the appropriate interpretation of racial disparity in incarceration rates and suggest that the harsher treatment of black offenders cannot be attributed to the racism of white judges.

 

Spohn, C. (2000). Thirty years of sentencing reform: The quest for a racially neutral sentencing process. Justice Systems Journal, 3, 427-501.

 

As we approach the 21st century, the issue of racial discrimination in sentencing continues to evoke controversy and spark debate. Some researchers contend that crimes by racial minorities are punished more harshly than similar crimes by equally culpable whites; others argue that racial disparities in sentence severity reflect differences in crime seriousness, prior criminal record, and other legally relevant factors that judges consider in determining the appropriate sentence.  Some scholars suggest that racial and ethnic disparities in sentencing have been reduced by the sentencing reforms promulgated during the past three decades; others insist that these disparities have been exacerbated by the policies pursued during the war on drugs. The purpose of this essay is to inform the debate on race, crime, and justice by critically evaluating recent empirical research examining the effect of race/ethnicity on sentence severity and by searching for clues to the contexts or circumstances in which race/ethnicity makes a difference. Forty recent and methodologically sophisticated studies investigating the linkages between race/ethnicity and sentence severity are reviewed; included are 32 studies of sentencing decisions in State courts and eight studies of sentence outcomes at the Federal level. The findings of these studies suggest that race and ethnicity do play an important role in contemporary sentencing decisions. Black and Hispanic offenders—and particularly those who are young, male, or unemployed—are more likely than their white counterparts to be sentenced to prison; in some jurisdictions, they also receive longer sentences or differential benefits from guideline departures than do similarly situated white offenders. There is evidence that other categories of racial minorities—those convicted of drug offenses, those who accumulate more serious prior criminal records, those who victimize whites, or those who refuse to plead guilty or are unable to secure pretrial release—also are singled out for harsher treatment. The results of this review suggest that the “discrimination thesis” cannot be laid to rest.

 

Tanase, T. (1990). The management of disputes: Automobile accident compensation in Japan. Law & Society Review, 24, 651-691.

 

We often ask why the Japanese are nonlitigious and look into the unique culture that may explain it. It is more appropriate to ask why Japan has maintained a complex industrialized society without much reliance on law. For the nonlitigious society does not come about spontaneously. Instead, it was made possible only by careful management. I elaborate this process of management through the detailed analysis of automobile accident compensation disputes in Japan.

 

Texeria, M.T. (2002). “Who protects and serves me?”: A case study of sexual harassment of African American Women in one U.S. law enforcement agency. Gender and Society, 16, 524-545.

 

Researchers have given some attention to women law enforcement officers’ experiences and perceptions of sexual harassment. Yet, few studies have determined how the interaction of gender and race affect African American women’s perception of this workplace impediment. This article explores one group of women’s experiences in a U.S. sheriff’s department. Interview data gathered from 65 African American women who are active and former law enforcement officers provide a comprehensive examination of how African American women in nontraditional criminal justice occupations experience racialized sexual harassment. Differences in degree and frequency of harassment are found among the women in different cohorts based on their job tenure, marital status, and the race of their harassers.

 

Tushnet, M. (2004). Some legacies of “Brown v. Board of Education.” Virginia Law Review, 90, 1693-1720.

 

The litigation campaign against segregation that culminated in Brown v. Board of Education1 remains an important subject of study. Brown continues to be controversial because Americans re- main uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system. Part I of this Essay will begin with a discussion of the very idea of a litigation strategy. Brown came to exemplify the possibility that lawyers could structure and execute a litigation strategy de- signed to produce substantial changes in the law. Liberals, and then conservatives, were captivated by the idea of coordinated litigation campaigns, even though the NAACP’s legal campaign against segregation, when examined in detail, does little to support the proposition that strategic litigation campaigns matter.2 Part I will continue with an examination of the ways in which later litigation campaigns were modeled on, in modified form, the one that ended (provisionally) with Brown.

 

Uggen, C. and Blackstone, A. (2004). Sexual harassment as a gendered expression of power. American Sociological Review, 69, 64-92.

 

Drawing on recent insights from the study of legal consciousness and gender relations, the authors test the generality of Catharine MacKinnon s theory of the sexual harassment of adult women. Survey and interview data from the Youth Development Study and the General Social Survey are analyzed to identify a behavioral syndrome of sexual harassment for males and females during adolescence and young adulthood and to compare the syndrome against subjective reports of sexual harassment. A clear harassment syndrome is found for all age and sex groups and MacKinnon ‘ predictions about the influence of workplace power and gender relations are generally supported. Financially vulnerable men as well as women are most likely to experience harassing behaviors, and men pursuing more egalitarian gender relationships are most likely to identify such behaviors as sexual harassment. Nevertheless, adult women remain the most frequent targets of classic sexual harassment markers, such as unwanted touching and invasion of personal space.

 

Vidmar, N. (1998). The performance of the American civil jury: An empirical perspective. Arizona Law Review, 40, 849-899.

Research findings bearing on the performance of civil juries yield little support for the extreme claims charging juries with poor and irresponsible performance. Trial judges agree with jury decisions most of the time and strongly support the jury system. On the issue of negligence, there is no evidence to support the claim that juries decide cases less competently than judges and some reason to suspect that the combined judgments of jurors, enhanced through the deliberation process, may be as good or better than those that would be rendered by a randomly selected judge. Juries in medical malpractice trials, frequent targets of critics, tend to render decisions that are consistent with independent assessments of health care providers. Nor does research support claims that juries are consistently moved by sympathy for plaintiffs or against deep pocket defendants. Indeed, there is evidence that juries frequently have concerns about the motives of plaintiffs in bringing lawsuits. Even in allegedly “complex” cases, jury verdicts are often defensible when examined against the evidence that was produced at trial. There are findings suggesting that juries may hold corporations to higher standards of conduct than individuals, but these attitudes appear to not be based on anti-business sentiments.

 

Vidmar, N., Gross, F., and Rose, M. (1998-1999). Jury awards for medical malpractice and the post-verdict adjustments of those awards. DePaul Law Review, 48, 265-300.

 

The civil jury continues to be at the center of an ongoing debate about a tort crisis and the need for “tort reform.” While some of this controversy involves charges that juries are biased or incompetent in deciding liability and engage in extravagance and caprice in rendering punitive damages, equally important charges involve juries’ compensatory awards, particularly the general damages portion that many scholars have tended to label exclusively as pain and suffering. While little attention seems to be given to special, or economic, damages in the debate, it is alleged that the “pain and suffering” component constitutes the largest portion of awards, is not rationally defensible, and, moreover, is highly variable and capricious from case to case.

 

Vlosky, D.A. and Monroe, P.A. (2002). The effective dates of no-fault divorce laws in the 50 states. Family Relations, 51, 317-324.

 

We use prior research and state legislative histories to develop a set of decision rules for determining the dates for adoption of no- fault divorce laws in the 50 states. Social scientists have attempted to gauge the impact of no-fault divorce laws on the stability of the family and on the rate of divorce, but the adoption dates used by these researchers varied widely. Such divergences yield conflicting findings on issues related to the impact of no-fault divorce laws on family outcomes. We examine in detail the varying methods used in prior studies for determining no-fault dates, then suggest a method for resolving the conflicts. Precision in and standardization of the dates of no-fault divorce laws used in this body of research will minimize measurement error and improve confidence in the research.

 

Wiethoff, C. (2002). Naming, blaming, and claiming in public disputes: The 1998 Maine referendum on civil rights protections for gay men and lesbians. Journal of Homosexuality, 44, 61-83.

 

On February 10, 1998, voters in Maine repealed a law providing civil rights protection for gay men and lesbians. This article provides an analysis of the argument strategies used by both parties to the dispute, shedding light on the particular tactics that contributed to the repeal. Felstiner, Abel, and Sarat’s (1981) sociolegal theory of naming, blaming, and claiming is offered as a lens to examine conservatives’ anti-gay rights arguments in the campaign. The theory helps demonstrate how conservatives’ argument patterns created narratives that successfully appealed to disparate audiences in Maine, thus garnering sufficient voter support to pass the appeal referendum. I also define weaknesses in GLBT supporters’ counter-arguments using this theoretical perspective. Finally, I offer suggestions for argument strategies in future campaigns that could strengthen uncommitted voters’ support for gay civil rights initiatives.

 

Wright, R.W. and Engen, R.L. (2006). The effects of depth and distance in a criminal code on charging, sentencing, and prosecutor power. North Carolina Law Review, 84.

 

Today’s conventional wisdom about criminal justice in the United States tells us that criminal codes do not matter much. Particularly in light of reforms that have made sentencing laws less discretionary, a prosecutor’s application of criminal statutes is thought to be more important than the code provisions themselves. Despite these claims, little is known about the actual use of prosecutorial discretion under these kinds of sentencing laws. In this Article, we examine charge movement in North Carolina. The data show that charge reductions are common, occurring in roughly half of all felony cases that resulted in conviction, and that the prosecutor’s decision to reduce criminal charges has a large effect on average sentence severity.

 

Yngvesson, B. (1989). Inventing law in local settings: Rethinking popular legal culture. The Yale Law Journal, 98, 1689-1709.

 

Like the notion of “popular culture,” popular legal culture implies the existence of an official culture of law distinct from everyday legal practices and understandings.  Ethnographic studies of law, in the United States and cross-culturally, underscore the significance of this distinction, which becomes most apparent in colonial contexts where a new state system is imposed on traditional legal forms.  Yet, equally striking differences have been noted in the industrialized West between an official rule of law codified in formal structures, dominated by a professional elite and symbolized in a national system of courts, on the one hand, and unofficial systems in which informal agreement, various forms of self-help, gossip, avoidance, and “lumping it” are customary practice, on the other…

 

Yngvesson, B. (1985). Law, private governance, and continuing relationships: Disputes processing: Re-examining continuing continuing relations and the law. Wisconsin Law Review,  623.

 

In this Article, Professor Yngvesson addresses a premise which undergirds much thinking about continuing relations: the idea that the more “continuing” a relation is, the less likely its parties are to bring disputes into official forums. Reviewing empirical research on continuing relations, Professor Yngvesson notes that resort to official forums is a common procedure for renegotiating the terms of an ongoing relationship. These redefinitions only occur at particular historical moments, however, and thus a longer time dimension is needed to understand the dynamics of continuing relations and the role of law in creating and maintaining them. Professor Yngvesson examines both situations where the parties are tied to their communities on a number of levels (multiplex relations), and those where local contacts are much fewer (single-stranded relations). She argues that multiplex relations are maintained and redefined in various kinds of forums, including official ones. Parties in single-stranded relations use official forums to strengthen fragile bonds, and in doing this may involve the forum as an ongoing participant in the relationship.

 

Yngvesson, B. (1988). Making law at the doorway: The clerk, the court, and the construction of community in a New England town. Law & Society Review, 22, 409-448.

 

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.