Law & Society

Our discussion this week will center around Brown v. Board of Education and the social implications of this decision. These readings offer a myriad of ways that we can test to see if the Brown decision had a positive impact on American society. 

One of the most famous and controversial writings on Brown is Rosenberg’s Hollow Hope. This is actually a full-length book and you have some brief selections.  Rosenberg argues that court decisions do not have impact in their own right, but instead what matters are policies created and carried out by the executive and legislative branches of government. 

Tushner, however, disagrees with Rosenberg in his article.  Tushner argues that that Brown is an example of a broader strategy of litigation campaigns that have been used effectively in the civil rights movement. 

Bell argues that Brown may have had an impact on desegregation, but that desegregation is only a small piece of the pie when it comes to improving the educational experiences of people of color in the US.  In particular, Bell argues that we should focus on school quality rather than simplistic desegregation. 

Green similarly argues that Brown actually had a negative impact on teachers of color (both in terms of their overall employment numbers and in their connections with schools and communities).

Payne’s article is rather brief, but the argument he proposes is insightful.  Payne contends that Brown restricted the discussion of racism and segregation in strictly southern terms.

Romero and Romero consider court decisions both before and after Brown to see if the decision had an impact on other discrimination cases.  They find that in state supreme courts and in federal district courts the Brown decision is a turning point for increasing the number of pro-plaintiff discrimination decisions in the courts.  However, they find that federal appellate courts were siding with the discriminated before Brown.

Spohn (“Thirty Years”) raises the question of whether criminal court judges are making decisions that are demonstrably discriminatory (particularly concerning race/ethnicity of the offender). As her title suggests, we have been reforming the sentencing process for the past thirty years.  These changes in sentencing practices beg the question of whether these changes have been effective at eliminating discrimination.  Spohn reviews the findings from 40 different studies and concludes that discrimination persists.  What evidence does she find to support her conclusion?  What issues seem to matter in addition to the race/ethnicity of the offender?

Dixon examines sentencing outcomes in Minnesota.  She simultaneously tests three different theories: the legal theory (that the details of the case – such as the severity of the offense – matter most); the substantive political theory (that the social status of the offender – race, class, etc – matters most); and the organization maintenance theory (the organizational interests of the court matter most).  What does she find?  What evidence do you find most/least compelling?

Spohn (“Sentencing Decision”) one effort to make sentencing more equitable has been to increase diversity on the court.  In this article, Sphon asks the question of whether black and white judges make different decisions.  In other words, does diversity on the court matter?  She notes in the title that there are “expected and unexpected similarities.”  What does she find?  Are you surprised?  What are the implications of her findings?

Daley questions whether the race of the offender alone can explain the racial disparities in sentences.  She finds that the family status of offenders matters a great deal – that familied offenders (those with dependents) are treated in distinct ways from unfamilied offenders.  More importantly, she finds that judges expectations of familied offender are different by gender. Furthermore, she finds that judges punish offenders reward offenders for conforming to traditional gender roles.  What are the patterns that she finds?  Do you think there would be differences by race/ethnicity, age, sexual orientation, etc?

Mears looks at sentencing in juvenile courts in Texas.  Mears discusses the shortcomings of previous research on judicial decision-making.  But, more importantly, based on his research he develops an analytic framework that can solve current problems.  What is his analytic framework?  What are the strengths and weaknesses?

Vidmar (“The Performance”) is responding to public criticism that civil juries are incompetent and in need of reform.  Vidmar uses a few different strategies to demonstrate that juries act responsibly, are not excessively sympathetic to plaintiffs, and offer conservative awards to plaintiffs.  What is his evidence?  What do you still want to know about the jury?

Vidmar, Gross and Rose look at jury awards in medical malpractice (and the adjustment of those awards afterward). What do they find about jury awards in medical malpractice cases?  More importantly, what do they find happens to those awards after trial?  What are the implications for their findings?

Rose observes jury selection and interviews prospective jurors after selection is complete.  She asks jurors how they feel about the juror experience and if they are likely to return to jury service in the future.  What does she find?  What are the implications?

Rose, Diamond and Baker look at jurors discussions of what Goffman would call “off stage behaviors” of the people in court. The purpose of this article is to highlight how jurors are paying attention to what people are doing in court when they are not on the witness stand or speaking officially in court.  The first part of this article establishes that jurors do indeed look at this offstage behavior.  Does this attention to the off stage matter when it comes to making final decisions?  Why should we care whether jurors are looking at the offstage during the trial.

Sarat considers the role that the jury plays in deciding capital punishment cases.  After some discussion of the core ethical and legal issues facing the capital jury, Sarat offers a case study of the jury’s decision to put Connor to death.  What are the key issues Sarat outlines?  What does he find in the Connor case?

First, I am sorry that I have not posted this entry sooner.  I have no excuse other than the fact that Spring Break got the best of me and I decided to rest rather than work.  I hope you made similar decisions to rest and recuperate while on break.  Anyway, here is my overview of the readings for this week…

I will start by telling you now that several articles for this week are quite long.  I do not want you to make your decisions only on the basis of length (i.e. looking for only the short articles).  So, I encourage you to read strategically when it comes to the longer articles – focus on understanding depth on a few issues and skimming the rest.

The bulk of the readings available for this week are on prosecutorial discretion.  Prosecutors have the ability to change charges from the time that the offender was arrested.  In most cases, prosecutors offer less serious charges in exchange for a guilty plea.  There are two major areas of concern in this research.  One question is normative – should prosecutors have this kind of discretion?  The second question is empirical – how do prosecutors use their discretion?  Underlying this second question is the concern that prosecutors might make their decisions based on criteria that are illegitimate and discriminatory (issues like race, class, gender and sexuality) rather than issues that are considered legitimate (like the details of the case).  The articles in this batch are:

1. Lynch describes his own experience as a prosecutor and a public defender in two different counties.  In general, people argue that we must have plea agreements because the system cannot handle very many trials.  Lynch argues, based on his experience, that there is little merit to this argument and that more trials are not only possible but could substantially improve the justice system.

2. Schulhofer’s article (“A Wake-up Call”) piggy backs onto Lynch’s article.  He teases out some the empirical insights and normative implications of Lynch’s article on discretion.

3. Hartley, Madden and Spohn analyze federal prosecutors’ decisions regarding crack and powder cocaine cases.  The federal situation is interesting because judges have been seriously restricted in their abilities to depart from strict sentencing guidelines and, as a result, sometimes imposing sentences that they believe are unduly harsh. (NOTE: This situation has changed a little since 2005, but we will talk about judges in more detail next week.)  They find that for prosecutors issues of race/ethnicity and gender appear to matter quite a bit in prosecutors’ decisions to downgrade charges.

4. Radelet and Pierce study prosecutorial discretion in homicide cases.  They compare arrest records with court records to document prosecutors’ charging decisions.  In homicide cases, they find that the race of the offender does not matter much, but that what seems to matter more is the race of the victim. 

5. Wright and Engen consider whether criminal law affects prosecutors’ decisions to change charges.  Wright and Engen explore this question because people have argued that criminal law matters’ less than how prosecutors decide to apply the code.  They look at prosecutors’ charging decisions in North Carolina.  They found that prosecutors behave differently when an offense has a wide range of charging options than when the options are limited.

6. Frohmann looks at prosecutors’ decisions to charge sexual assault cases on the basis of convictability.  Frohmann analyzes the ways that prosecutors talk about their cases and finds that they construct narratives about the neighborhoods of the victims, offenders and jurors.  In so doing, prosecutors reproduce race, class and gender ideologies.  These inequality narratives then impact prosecutors’ decisions to charge sexual assault cases.

7. Langer’s article is a practical attempt to solve the prosecutors’ discretion problem.  Langer argues that we should consider bilateral plea bargaining in which the prosecutor and defense attorney actively negotiate the plea terms together.

8. Johnson compares prosecutors in the US and Japan.  Johnson argues that Japanese prosecutors take the organization of the system much more seriously than prosecutors in the US.  He argues that we can learn a great deal from Japan.

These next several articles address issues beyond prosecutorial discretion.

9. Schulhofer’s other article (No Job Too Small) considers empirically whether the courts could handle more trials by considering the Philadelphia courts where trials are quite common.  Schulhofer argues that the courts can indeed handle more cases and that an increased number of trials can actually increase the fairness of the system.

10. Seron, Ryzin, Frankel and Kovath conduct a randomized experiment to find out whether legal counsel improves outcomes for poor tenants in housing court.  They find that tenants fare substantially better when counsel is provided.

11. Sarat and Felstiner look at the relationships between divorce attorneys and their clients.  They find that while clients are focused on reconstructing their relationship past, lawyers focus on talking about the future and also on framing the ex-spouse.  Sarat and Felstiner argue that attorney’s strategies shape the actions of divorcing spouses.

12. Kennedy analyzes the first year curriculum in law school and argues that this educational experience is primarily about learning an ideology appropriate to the legal profession.  As the title might suggest (“Reproduction of Heirarchy”) Kennedy is critical of law school and argues that the program maintains a hegemonic order.  The good news is that this article concludes with a discussion of what he thinks can be done to fix this situation.

13. The MacIntyre reading is a chapter from one of my all time favorite book.  MacIntyre studies public defenders in Chicago and this chapter is about the question of how public defenders can justify defending clients who may be guilty of awful crimes.  As you will see, defense attorneys’ efforts to address this question is complicated and, at times, unsatisfying.

This week we will be focusing on the strategies people use to resolve disputes.  You will see that the courts serve this function for some people, but there is a wide variety of legal and nonlegal strategies that people also use.  I’m going to mention my favorite articles first because, as I mentioned in class, many of my most dearly beloved articles are scheduled for this week.

In “Going to Court” Merry reports her findings from a participant observation study in a polyethnic, urban housing project to understand how a group of people who live closely together but share a limited sense of community go about resolving conflicts.  She finds that the members of this group turn to the courts as a strategy for sanctioning their neighbors rather than resolving their disputes.  After reading this article, you should be able to talk about why the community members use the courts in this way and what other kinds of strategies they use to solve their disputes (and why).

In “The Oven Bird’s Song” Engle looks at the opposite type of community – a rural, tightly knit, homogenous community.  Engle studies the resolution of personal injury claims and finds that the community has a distinctly different set of norms for individuals who are known members of the community (“insiders”) and those who have recently moved in and are less well known (“outsiders”).  After reading this article, you should be able to articulate the two sets of norms and why Engle thinks these patterns have emerged.

Tanase’s “The Management of Disputes” and West’s “Karaoke” are both variations on a similar theme: why Japan has much lower litigation rate than the United States.  Tanase looks at automobile accidents and West, of course, studies noise complaints related to karaoke.  Both point out that Japan has several pre-litigation systems for resolving disputes outside of the courts.  Tanase focuses on how the automobile accident disputes are handled through an institutionalized system that teaches citizens how to make use of alternative dispute resolution and also provides them with a number of resources to complete the resolution process.  West argues that individuals’ decisions to make use of alternative resolutions depends on a calculation of costs and resources.  If you are reading one (or both) of these articles, you should note that both reject the standard attitudinal/cultural argument (that the Japanese are simply a less litigious people).  You should be able to describe the alternative to court that are identified by the author(s) and what patterns they find in regard to how disputes are settled.  I would also love to know if you think these kinds of systems could work in the US.  What would be the benefits/costs?

Lempert and Monsma conduct a mixed-method study (interviews and statistical analysis) of the treatment of Samoans before a housing eviction board.  They find empirical evidence to support the claim that Samoans experience discrimination in financial cases.  They then turn to interviews to analyze the kinds of excuses that Samoans give.  While their excuses would be seen as legitimate in Samoan culture, they are seen as illegitimate in the US.  If you choose this article, you should be able to describe the patterns of excuses that Samoans give and why they are not accepted in the US.  Also, I will want to know if you agree with Lempert and Monsma that this pattern constitutes “cultural discrimination.” Is this kind of discrimination one that you find acceptable or not? Explain.

I went over the basic findings of the Galanter article, so I don’t plan to re-hash the findings on how few complaints actually go to trial here.  If you choose this article, I would like for you to summarize and comment on some aspect of the article beyond what I gave you in class.  It is quite long, so you can probably skim over the findings regarding litigiousness to look for other kinds of information.

Lind, et al. conduct interviews with almost 1000 individuals who were recently fired or laid off.  They ask respondents about both the situation surrounding their job loss and their feelings about their termination.    They then follow up with their subjects 4 months later to find out how they are still thinking/feeling about their job loss.  While they consider several possible explanations, Lind and colleagues argue that the most compelling theoretical perspective is the relational model of organizational justice.  Explain this theory.  What findings support this theory?  What do Lind and colleagues recommend regarding termination strategies for employers?

Mullis’ article on medical malpractice uses Black’s theory of social control to explain patterns in malpractice suits.  After reading this article, you should be able to summarize Black’s theory of social control and at least 2-3 reasons that Mullis believes this theory effectively explains the “American malpractice experience.”

May and Stengel apply the naming-blaming-claiming model to a study of patients who sue their doctors.  They especially look at clients’ decisions NOT to take legal action against their doctors.  They identify 5 patterns of response (from “lumping it” to hiring a lawyer but then deciding not to sue) and explain these patterns based on 5 independent variables (audiences, parties, strategic interaction, seriousness of injury, and resources).  What to do they find?  What surprises you?

Harrington and Merry conduct a study of mediators to understand this form of alternative dispute resolution.  This article is, in my opinion, densely theoretical but also very interesting.  You may especially like this article if you are interested in the social construction of reality perspective in sociology.  Harrington and Merry analyze the ways that mediators and mediation organizations “make” (construct) mediation by employing different ideological frames and strategically choosing which mediators to use to handle cases.   Harrington and Merry argue that while there are disputes within the field of mediation over what mediation is all about, these groups actually have a lot in common.  After reading this article, you should be able to talk about what various groups of mediators disagree on and have in common.

According to Felstiner, Able and Sarat (1980-1981) events causing harm to a person must go through a process of transformation (naming, blaming and claiming) before the person actually enters a dispute with the person(s) who caused the harm.  After reading this article, you should be able to describe the process of transformation, how these transformations influence and are influenced by social conditions (like parties, attributions of responsibility, etc.), and why the authors believe that this process is an important avenue for sociological study.

Alicke (2000) explores the psychology of how we place blame (or do not place blame) on others for events that occur.  He offers a “culpable control model” of blame attribution.  Alicke argues that when we become aware of a harmful event we immediately try to assess whether the people involved are responsible for the event that occurred.  Based on these spontaneous evaluations, we then decide where blame should be placed (if at all). At the end of this article, you should be able to talk about the kinds of information we take into account as we decide whether people are responsible for harmful events (i.e. “perceived control”).  Also, how does the culpable control model compare with other theories of blame/responsibility?

Coates and Penrod (1980-1981) outline the social psychological research on the types of judgments that people make in determining whether they see an event as an injury that requires compensation.  They outline 4 approaches to the study of judgments (relative deprivation, perceived control, equity, and attribution) and then point out limitations in the research so far.  After reading this article, you should be able to discuss the ways that social psychologists have studied blame, the limitations of their research, and what Coates and Penrod think we should do about this situation.

Best and Andreason (1977) use a survey of consumers to analyze the ways that people respond to problems with products and services.  What do they discover about the patterns of complaining and the outcomes of these disputes.  What do they find about whether or not people are satisfied after they complain?  What do they think we should do to improve the complaint process?

Wiethoff (2002) analyzes the discourses around Maine’s 1998 repeal of civil rights protections for gays and lesbians.  What arguments were offered by the two sides?  Why does Wiethoff think that the conservatives won this battle?  What does she identify as some of the weaknesses in the GLBT supporters’ arguments?  What are her general recommendations for future campaigns to support gay civil rights?

Kritzer (1991) compares tort cases in the US and England.  Generally, people have argued that England is less “sue happy” than the US.  What are the differences between the two systems when it comes to tort cases?  What does he find regarding the differences in tort claims between the US and England?  Why does Krtizer think these differences exist?

per our conversation in class about deciding who to blame, here is an article from yesterday’s NY Times about a community in Montana that has been devastated by absestos…

http://www.nytimes.com/2009/02/19/us/19asbestos.html

NOTE: As you may have already noticed, the Yngvesson article I posted is not the same one as listed in the syllabus.  I decided to leave the one I posted since several of you have probably already read that article.

The theme for this week is on how people think about, interact with and use the law in the course of their everyday lives.  Two of the readings (Felstiner and Yngvesson) offer theories on when people will access the courts.  Felstiner looks at two ideal types of societies – technologically complex rich societies (TCRS) and technologically simple poor societies (TSPS) – and argues that people will use different types of dispute settlement strategies (courts, mediation, and avoidance) in different ways depending on the type of society they live in.  Yngvesson, on the other hand, looks at how people in different types of continuing (long term) relationships – complex and simple – use official forums like courts to settle their disputes.  Should you choose one of these readings, read closely to understand the patterns they identify because their conclusions are not entirely intuitive.

O’Barr and Conley interview plaintiffs involved in small claims courts to learn what they expected to happen from going to court.  They identify three expectations that the plaintiffs bring to the courts and argue that, as a result, many plaintiffs will experience dissatisfaction with the civil system.  Should you choose this article, you should be able to identify and give examples of the 3 patterns they identify.

The Musheno and Nielsen articles look at the ways that individuals fail to frame their problems in legal terms.  Musheno studies individuals receiving support from AIDS service organizations.  Nielsen looks at the ways that individuals respond to street harassment.  In both of these cases, it is possible for individuals to seek legal remedies/responses to the problems they face.  However, both find that their subjects are resistant to placing their problems in a legal framework.  Should you choose either of these readings, you should be able to describe who the researcher studied, what the legal framework could be, and why the author believes that their subjects are unwilling/unable to invoke the legal framework.

Finally, Macualay take a very different approach to thinking about the law in everyday life.  Macaulay looks at the ways that people invoke legal language in areas of social life that are not technically legal.  From the title you can see that these areas are school, entertainment, and spectator sports.  If you choose this article, you should be able to talk about how legal language is used in each of these areas. More importantly, you should be able to talk about why Macaualy thinks it is important to look at the ways that people use legal language outside of the legal system.

If you would like to read more about the film from class (or even watch the entire film online), check out the link below:

Frontline: Can You Afford to Retire?

In their book The Common Place of Law, Ewick and Silbey introduce a new approach to the study of legal consciousness (how people think about the law in the course of their daily lives).  This book has had a noticeable impact on the field of law and society.  Most importantly, they develop a theoretical basis for studying legal consciousness as “participation in the construction of legality” through the invocation of “a cluster of cultural schemas and resources” (pp. 46-47).  As you are reading, some of the questions you should keep in mind are…

1. What is Ewick and Sibley’s critique of “law and society” studies?

2. How is their approach to legal consciousness distinct? What do they mean when they write about “schemas” and “resources”?  What do you think about their theory? Does it resonate with you?  Do you still have questions?

3.  What are the three types of legal consciousness that they identify?  How do these types compare in terms of the 4 dimensions the authors cover (i.e. normativity, constraint, capacity, and time/space)? What evidence do they offer?  What do you think about these patterns?  Are there any you might want to add, take away, or modify?

Garth and Sarat (1998) argue that “To speak about the law is always and necessarily to be engaged in a discourse about both justice and power “ (p. 1).  They propose that it is impossible to imagine law without the power to affect people’s lives.  Thus, law and society research has attempted to understand how law as an exercise of power actually affects people’s lives in real and meaningful ways.  Moreover, many researchers in the law and society tradition have maintained a political stance that where law contributes to the persistence of inequality, such law is unjust. These researchers are not passive describers of law, but active and engaged researchers who want to see such systems of inequality dismantled.  For your readings this week, you have a choice among several such “critical” scholars who make claims about how law currently works, how law should be studied, and our role as scholars in unmaking these systems of inequality.

Several of your readings offer insights about how the law interacts with class (Galanter, 1974): class (Seron & Munger, 1996); race and gender (Caldwell, 1991); and gender, race, and class (Grana, Ollenburger, and Nicolas, 2002).  Galanter, in his study of litigation, and Caldwell, in her analysis of employment discrimination, take their analyses even further to offer suggestions of how laws could be changed to eliminate the biases of the current system.

Another theme that arises throughout your readings is the question of how scholars of law should go about actually studying the law.  At the heart of this debate is an point raised in last week’s readings by Calavita (2002).  In her presidential address, Calavita argued that law and society scholars need to ask the kinds of big questions that give us “goose bumps.”  One of her examples of these big questions is the nature of the relationship between agency and structure.  This tension lies at the heart of sociological research as we seek to undersand how individuals can make choices and take actions (agency) while also being constrained by social forces – like race, class, gender, and sexuality (structure).  Seron and Munger (1996) argue that our research should more seriously consider structure, particularly class.  While Yngvesson (1989) argues that law is best understood on the local level, paying attention to how individuals talk about their world.  Silbey and Sarat (1987) argue that the answer is somewhere in the middle.

Regardless of how these scholars define the problem of law and how they believe law should be studied, one consistent theme throughout these readings is that while these scholars see problems with the ways law is written, thought about, and carried out, all of these scholars are “hopeful about law and the possibilities for social change and reform through law” (Silbey and Sarat, 1987, p.170).  They all believe that we can understand the relationship between law and society better AND that with that understanding we can make the world better.  This final theme fits in with the concluding discussion in last week’s class in which we talked about the ideas of engaged research (Calavita, 2002) and public sociology (Burawoy, 2004).  Hence, I also gave you the option to read Buroway’s piece on public sociology so that we can further consider the debate over whether law and society research matters.

Cites

Garth, B.G. and Sarat, A. (1998) Justice and Power in Sociolegal Studies. Chicago: Northwestern.

All other sources listed on our “Readings” page (link available on the right).