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Consequences: The Impact of Law and Its Complexity

Copyright Date: 2002
Pages: 416
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  • Book Info
    Book Description:

    A timely and erudite investigation of the impact of law on societies, and how this excessive reliance on law, particularly litigation, has generated difficulties in achieving consensus regarding issues of domestic policy.

    eISBN: 978-1-4426-7326-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-2)
  4. Introduction
    (pp. 3-20)

    That law asserts an influence on society is scarcely an issue. But how it does so, the effects that are produced, and the gauging of those impacts raise complex questions to which there are frequently few easy answers. The interaction of law and other social forces is a complicated process. Difficult issues are involved including the determination of causation and the assessment of outcomes. What we know regarding many of these questions is sometimes little more than guesswork bolstered by enticing theories. The complexities of how to establish what are the consequences produced by law are evident. The extent to...


    • CHAPTER ONE So Decried, So Demanded
      (pp. 23-50)

      We might think of law and society as a two-way street with a boulevard down the middle. Law shapes society in complex and, often, unclear ways: a point woven through these chapters. At the same time, society is not passive, allowing law to work its will. Society also influences the quality and quantity of law. Of course social transformations do not translate into legal ones in a straightforward fashion. Society exerts its influence upon law in many complicated ways: ʹ[S]ocial changes lead to changes in states of mind or opinion about law or legal institutions; and these states of mind...


    • CHAPTER TWO Compliance with Law – Deterrence and Its Alternatives
      (pp. 53-81)

      Most people obey most laws most of the time. Nevertheless, maximizing obedience is a crucial element in a law being successful. Thus, a straightforward measurement of whether a law is achieving its goals – of its impact – is the extent to which there is compliance with it.

      Obedience to the law is clearly a central goal for the administration of criminal justice. Breaches of criminal law, especially violent ones, strike at the heart of civil society. Understandably, therefore, much of the literature on compliance focuses on upholding laws enjoining such behaviour. Yet compliance is an important focus of other...

    • CHAPTER THREE The Complexities of Assessing Impact
      (pp. 82-110)

      A couple of years ago an article appeared in TheNew York Times Sunday Magazinereporting a debate between Floyd Abrams, a prominent First Amendment attorney, and the well-known feminist and advocate of legal measures to curb pornography, Catharine MacKinnon.¹ It will surprise no one to hear that there was little common ground between them. Positioning free speech and equality as irreconcilable opponents, as perhaps only these two antagonists could, is, itself, wrongheaded. Nevertheless, the important issue of how these two principles might be reconciled is one that we will leave to the side.

      What was remarkable for the questions...

    • CHAPTER FOUR Six Ideas about the Impact of Law – America the Outlier
      (pp. 111-156)

      This chapter examines the third aspect of the impact of law: the overall effects of lawʹs interaction with social, political, and economic forces. A number of ideas contend that the outcomes produced by law are most clearly discerned in terms of broad contours of regulation. The third aspect of impact is not primarily concerned with gauging the consequences of any particular law (the focus of the previous chapter) but, rather, with exploring the relationship of law and society generally.

      The ideas discussed in this chapter vary substantially. There are instrumental assertions about law that suggest that it can single-handedly cause...


    • CHAPTER FIVE Punishment – and Capital Punishment
      (pp. 159-182)

      Much of the growth of law in the last thirty years is attributable to the left side of the political spectrum. Progressives have long viewed law as a counterweight to market excesses and failures. Environmentalism, affirmative action, and the campaign against smoking – all topics addressed in this part – are illustrations of progressive forces seeking to harness law to achieve results at odds, in important ways, with the dictates of the marketplace. Regulation as diverse as minimum-wage laws to tax laws stipulating progressive rates to programs ensuring health care can all be accounted for, in many ways, as a...

    • CHAPTER SIX Smoking – and Waves of Cultural Antagonism
      (pp. 183-219)

      Smoking provides a dramatic instance of changes in public attitudes. A cigarette in hand was once thought to be glamorous, sophisticated, sexy, and who knows what else. Not so today. She who lights up is more likely to be thought of as a loser, an addict with a filthy, expensive habit dragging her down.

      The cause for minority rights abounds in many areas. A conspicuous exception is the shrinking population of those in the thrall of nicotine. Here a plea for protection of the rights of smokers is – mostly – turned back with a mixture of pity and derision....

    • CHAPTER SEVEN The Environment – Sunshine or Apocalypse?
      (pp. 220-248)

      Environmentalism provides a clear example both of the growth of law over the last decades and of its effectiveness when buttressed by social and economic forces. Of all the ʹmovementsʹ for change occurring as a result of the tumult of the sixties, environmentalism may have enjoyed the broadest support, including from the upper classes. A man may ignore the sting of sexism, a white the burden of racism, the rich the cries of the ghetto. But we are all part of the environment; the affluent not the least so, as they frolic on their recreational properties.

      As with other areas...

    • CHAPTER EIGHT Pornography – Fractured Protests, Harms(?), and Unstoppable Technology
      (pp. 249-276)

      [I]t has become clear that although everyone knows hard-core pornography when they see it, they see it in strikingly different places, and so no one really knows it at all.¹

      Erotica celebrates sexuality as an integral part of our common humanity; pornography, it is said, exploits and degrades. Yet if anything was ever in the eye of the beholder – including over time and cultures – it is what constitutes these two sides of the same coin.² What arouses some may offend others. That which repels a segment of the population may, to those differently inclined, explore sensual terrain long...

    • CHAPTER NINE Discrimination, the Law – and Blacks in America
      (pp. 277-312)

      Combating discrimination has been one of the most conspicuous uses of law in post–Second World War societies. Repulsed by the spectre of the Nazis and fuelled by a commitment to treat minorities better, most conspicuously blacks in America, many Western societies became convinced that discrimination could be eradicated by the force of law. Indeed, the wellspring of the rights movement that wove its way into the fabric of societies in the 1970s and 1980s was the optimistic belief that minorities could best be protected by arming them with fundamental entitlements enshrined in law.

      Yet all discrimination is not banned....


    • CHAPTER TEN Conclusions: The Consequences of Law, the Limits of Litigation, the Need for Pragmatism
      (pp. 315-328)

      The last decades have witnessed enormous change – in technology, through the globalization of economies, and in politics, to name but a few of the sources of such transformation. The role of law has been key in many of these transitions. It has been called upon to tackle a host of social, political, and economic issues. There are more laws, more lawyers, more writing about law, and more litigation and alternatives to it.¹

      Nowhere is this appetite for law more apparent than in the United States. America is the land of the law, in terms of a particular form of...

  9. Notes
    (pp. 329-400)
  10. Index
    (pp. 401-405)