Why do some conflicts become legal cases but most do not? How does understanding disputing help to explain conflict resolution and the impact of law? Both criminal and civil conflicts in the U. The empirical results of the CLRP scholars have been reported in myriad judicial process textbooks but this important, forty-year-old study has not been replicated. Galanter also showed how disparities in the legal profession specialization, relations with clients, legal training, etc.
A number of empirical studies since then have supported his theory see Kritzer and Silbey That is, parties who are more familiar with legal processes know when to settle out of court and when to press on to formal trial, according to the likelihood of gain in the legal rule as opposed to a win or loss in the immediate conflict. As Mather and Yngvesson —1 suggest, legal cases are not objective events, but are socially constructed to reflect the interests of supporters of disputants, to appeal to a particular audience, and to incorporate the values and language of law.
The language of law is inherently political, ordering facts and invoking norms to support one set of interests or another. By constructing claims in certain ways, one can expand the law and mobilize others in support of the new interpretation.
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Groups lacking in political power may succeed in attracting support for legal change through reframing issues and mobilizing support, as shown in litigation over comparable worth McCann , tobacco control Mather , and sexual harassment Marshall A victory in litigation, even if later reversed on appeal, can aid in agenda setting and serve as a catalyst for further change. The linkage among litigation, political order, and political change also emerges in empirical research on the use of courts over time.
Filing disputes in court should be seen as an alternative to traditional forms of political participation, as Zemans argued, and indeed longitudinal study of court usage in the U. Nevertheless, courts are not passive institutions waiting for disputes to percolate up the pyramid to become fodder for judicial decisions. Courts are institutions of the state and as such, they or other arms of government can and do exercise power to shape the nature and amount of litigation Munger ; Harrington and Ward This general point about the power of institutions was made in law and society research some time ago.
Recent battles over tort reform illustrate it well, as actions by state legislatures, Congress, and the U. A second major area of law and society research focuses on decision-making.
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Scholarship on judicial decision-making is hardly news to those interested in the politics of law, but those in law and society broadened the terrain in several ways. They examined decision-making by judges at all levels of court including nonlawyer judges on justice of the peace courts, those on small claims courts, misdemeanor and felony courts, civil courts, and occasionally appellate courts. Research revealed differences in sentencing severity across courts and in patterns of judicial interaction with prosecutors Eisenstein and Jacob ; Eisenstein, Flemming, and Nardulli Questions about racial discrimination in trial court sentencing have been investigated numerous times, initially with some mixed results.
Jury decision-making has received a great deal of attention from sociolegal scholars. They have explored, for example, the impact of decision rules and jury size on verdicts, differences in evidence-driven vs. Second, recognizing that over 95 percent of trial court cases settle through plea negotiations or settlement talks, without trial, sociolegal researchers examined decision-making by lawyers. They asked, for example, how, why, and when do prosecutors and defense attorneys engage in plea bargaining?
Do decisions by defense attorneys vary according to whether they are privately employed or public defenders? The rich literature on these questions found in earlier research on plea bargaining would benefit from reexamination in order to see how legal changes on sentencing and jury selection, demographic changes in lower court personnel, increased punitiveness in the cultural and political climate, and the impact of federal anti-immigration measures on local officials, have affected the processes of negotiation in criminal courts.
Lawyers in civil cases also play important roles in dispute settlement and in the production of law. We also know a good deal about the strategies, problems, and goals of cause lawyers Sarat and Scheingold ; Scheingold and Sarat By contrast, we know much less about decision-making in the work of corporate lawyers, and this is also an area that deserves more research. Research that began by simply analyzing individual decision-making soon moved to consider and to incorporate into theory building the context in which those decisions were made. Relevant aspects of context include, for example, institutional features, legal rules, economic structures, social networks and organization, and shared cultural values.
The literature thus moved from its original behavioral focus to reflect institutional and cultural theories. Understanding and explaining the work of lawyers involves studying them within their communities of practice, including the law firm as a community or important cultural space Kelly ; Mather, McEwen, and Maiman Heinz and Laumann first reported the significant differences in lawyers according to what they called the two hemispheres of the legal profession: lawyers who represent organizations or corporate entities and those who represent individual clients and see Heinz et al.
Lawyers representing p. The bifurcated profession has enormous implications for the creation and enforcement of law. For example, law and politics scholars should examine how lawyers exercise influence on law through particular communities of legal practice Mather forthcoming. Finally, sociolegal scholars broadened their scope beyond judges, juries, and lawyers to include the work of less visible legal actors such as court clerks Yngvesson , health and safety inspection officers Hawkins , immigration officials Coutin , probation officers, and police Skolnick ; Bell Every decision of a low-level legal official helps to shape a pattern of law interpretation and enforcement, and to construct ideas about law for the public they encounter.
Even further, law and society researchers have explored the decisions and work of private actors, those without official legal status but who also contribute to lawmaking and law enforcement through private ordering.
Who are some of these actors? They include: real estate agents and mortgage brokers who maintain a color line in urban housing; security guards with badges and uniforms who patrol malls and parking lots; human resource officers who define the parameters of civil rights laws through their routine advice and actions in employee disputes; mediators who help parties resolve conflicts without the expense of trial or the constraints of law.
Political scientists studying the legislative process are accustomed to paying close attention to the role of private interest groups in lawmaking and administrative enforcement and have developed theories of specialized influence e. Similarly, law and courts scholars should build on the empirical work on private ordering to better understand connections between powerful private interests and law see e. Edelman and Suchman Legal ideology and consciousness comprises a third major area of law and society scholarship.
But from an ideological perspective, what is even more important for the law is the meaning conveyed by those decisions. Law and society research reminds us that law is constructed through such categories for classification. When the clerk of a local court dismisses p. Similarly, with every passage through airport security, government agents are communicating that the law of the U. Studies of the actuarial practices of insurance companies, for example, underline the power that comes from the rhetoric of granting or denying insurance Simon ; Glenn Researchers have examined different areas of law to uncover the hidden assumptions, as in the racial bias of insurance, that privilege some people and interests over others.
Numerous works document race and gender disparities that emerge from ostensibly neutral concepts or principles. Focus on legal ideology looks at the categories of law and how they are used, in order to reveal the process by which legal meaning is constructed.
While political scientists readily acknowledge the ideology of constitutional constructs, law and society scholars analyze the narratives, taken for granted assumptions, and values in other areas of law—contracts and tort Engel , employment, property, family, and so forth. If knowledge is power, then how do people obtain their knowledge of law?
Interest groups on different legal issues battle for the hearts and minds of jurors and the public. The drama of trials, conflict between good and evil, guilt and innocence, chaos and order, all convey legal meaning that may find its way into law. Prosecutors worry that avid watchers of CSI , when asked to serve on a jury, are more reluctant to convict unless there is scientific evidence.
For example, Ewick and Silbey conducted detailed interviews with people of diverse backgrounds and found three distinct narratives about law, each with its own normative value and structure: law as impartial, objective, and remote; law as a game shaped by self-interest and individual resources; law as a power to be resisted. Engel and Munger examined how people with disabilities understood and used p. The authors concluded that individual identity was key to perceptions of, and experience with, legal rights. Scholars of law and politics should find intriguing material here to integrate with research on political participation, framing of issues, critical race theory, or feminist jurisprudence.
Other areas of law and society scholarship may be more familiar to those in law and politics so I will mention them only briefly. Studies of regulation and compliance have been a mainstay of law and society scholarship, encompassing research on compliance with Supreme Court decisions on prayer in schools, implementation of lower court orders on school busing, compliance with environmental, health and safety, or business regulations. Once a legal rule is announced, judicial decision is made, or new regulations go into effect, how do officials secure compliance?
Whereas legal scholars try to draw a bright line between law and discretion, many sociolegal scholars would challenge the distinction. Law, it is argued, is constituted by the discretionary decisions that give it meaning. Similarly, the notion of law as purely governmental regulation breaks down entirely with the proliferation of private and quasi-public actors whose support is critical for the success of any regulatory regime. In place of command and control models of regulation, some point to the empirical and normative advantages of self-regulation Gunningham and Rees Important comparative work on regulation by Kagan identifies the very different approaches of Britain and the U.
One of the critical influences on the development of law and society was Willard Hurst and his focus on legal history. His view of law as deeply grounded in the social and economic context of its time shaped generations of scholars studying particular laws, judicial decisions, or legal movements Simon The notion of law and society as mutually constitutive emerges clearly in much of the sociolegal historical scholarship e.xn----itbjbanp5adgf8b0d.xn--p1ai/scripts/109.php
Law and Society | carmacuraci.gq
Gordon ; Hartog , and especially in work on race and the law Gomez Their p. The old tort doctrine lasted as long as it did because there was no stable compromise behind its replacement. Many similar legal changes would benefit from reexamination by political scientists who have studied American political development and could bring new understandings of the political contexts for change as well as informing law and politics scholars about important areas of the common law they have overlooked. Applying the philosophical distinction between procedural and substantive justice to the legal system, psychologists hypothesized that providing fair and transparent court procedures would result in greater satisfaction and compliance regardless of the substantive outcome of their case.
Other researchers extended the research to litigant satisfaction in felony cases according to the perceived fairness of the procedures Casper, Tyler, and Fisher and to acceptance of unpopular decisions of the U. Supreme Court Gibson ; cf. Tyler and Rasinski Although the law and society field lacks clear boundaries to separate its interdisciplinary perspective from the other disciplines, it has significantly aided our understanding of law and politics through the various areas of research discussed here.
I have already referred to some promising avenues for future research on law and politics. Let me just outline a few others.
Look beyond appellate courts. There has been little recent research on American trial courts, despite huge changes in the balance of federal to local legal power, a massive increase in incarceration, a wealth of quantitative data on state courts available from the National Center for State Courts, and the creation of new types of specialized courts for drugs or mental health.
Further study of trial courts and tribunals in other countries would add greatly to our comparative knowledge of courts. Numerous other regional and international bodies could be studied as well to help us understand processes of law and globalization. Broaden the range of legal actors to study beyond judges and beyond the arena of public law.