The Law and Society Reader II

The Law and Society Reader II

Erik Larson
Patrick Schmidt
Copyright Date: 2014
Published by: NYU Press
Pages: 400
https://www.jstor.org/stable/j.ctt9qg0dk
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  • Book Info
    The Law and Society Reader II
    Book Description:

    Law and society scholars challenge the common belief that law is simply a neutral tool by which society sets standards and resolves disputes. Decades of research shows how much the nature of communities, organizations, and the people inhabiting them affect how law works. Just as much, law shapes beliefs, behaviors, and wider social structures, but the connections are much more nuanced - and surprising - than many expect. Law and Society Reader II provides readers an accessible overview to the breadth of recent developments in this research tradition, bringing to life the developments in this dynamic field. Following up a first Law and Society Reader published in 1995, editors Erik W. Larson and Patrick D. Schmidt have compiled excerpts of 43 illuminating articles published since 1993 in The Law and Society Review, the flagship journal of the Law and Society Association. By its organization and approach, this volume enables readers to join in discussing the key ideas of law and society research. The selections highlight the core insights and developments in this research tradition, making these works indispensable for those exploring the field and ideal for classroom use. Across six concisely-introduced sections, this volume analyzes inequality, lawyering, the relation between law and organizations, and the place of law in relation to other social institutions.

    eISBN: 978-0-8147-8933-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Introduction
    (pp. 1-6)

    Many students find themselves drawn to law as a topic or field of study. They often see in law an ability to right injustices, perceiving in law the advantages of independence, logic, and structure, which combine to promise the “correct” outcomes. From this perspective, law appears as a sanctuary from the dirtiness of politics, the ambiguity of culture, the self-interest of economics, and the messiness of social relations. The kind of legal education provided in many countries has done little to discourage students from their belief that law rises above these potential contaminants and remains pure. We may be a...

  5. PART I: INEQUALITIES
    • [PART I: Introduction]
      (pp. 7-10)

      Most readers of this volume either have or will at some point experience renting an apartment or house. When renting, you almost certainly sign a lease agreement. Some renters may have a dispute with the property owner about the rent due or condition of the housing. Housing law influences how people experience such situations: What does the law require and encourage each party to do, now and later? Does the law give one party an advantage? Is it worth talking to a lawyer, much less taking the dispute to court? As noted in the introduction to this volume, law and...

    • DOES LAW BENEFIT THOSE WITH THE MOST RESOURCES?
      • 1 Do the “Haves” Still Come Out Ahead?
        (pp. 13-15)
        JOEL B. GROSSMAN, HERBERT M. KRITZER and STEWART MACAULAY

        In [“Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Marc] Galanter (1974) attempts to explain the outcome of trial court litigation in essentially structural terms. He discusses “the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistributive change.” Galanter divides parties into “one shotters” and “repeat players.” A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter’s claims are too large (relative to their size) or too small (relative to the cost of...

      • 2 The Rule of Law and the Litigation Process: The Paradox of Losing by Winning
        (pp. 16-23)
        CATHERINE ALBISTON

        Litigation is a process rather than a choice between two alternatives. Courts intervene in this process not only by encouraging settlement but also through intermediate decisions that may not entirely resolve a case. Indeed, although most cases settle, many do so after some sort of court intervention. These points of intervention, like strategic settlement, also present opportunities to shape the developing law. The ways in which the litigation process and party-driven biases together might affect the evolving law have not been explored, however.

        It should also be recognized that not all “law” is created in the same manner. Although Galanter’s...

      • 3 The Good Case: Decisions to Litigate at the World Trade Organization
        (pp. 24-32)
        JOSEPH A. CONTI

        This article examines the decision to initiate litigation in the dispute settlement mechanism of the World Trade Organization (WTO). Prior empirical research has focused on determinants of participation in WTO disputing but without full consideration of the social processes by which the decision to litigate is made. To the extent that these processes have been subject to study, scholars have presumed that initiation of a formal WTO dispute results from a cost-benefit analysis, and they have conceived of dispute initiation as a way to force “renegotiation” of a trade relationship, eliminate inefficiency caused by protectionist trade policies, and yield outcomes...

    • HOW DO AUTHORITY AND POWER INFLUENCE THE IMPLEMENTATION OF LAW?
      • 4 Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking
        (pp. 35-41)
        LISA FROHMANN

        What categories do prosecutors use to assess sexual assault cases? What are the ramifications of using case convictability as a decisionmaking standard? How do race, class, and gender become salient in prosecutors’ decisions? In this article I attempt to answer these questions by analyzing ethnographic data about prosecutors’ work in a sexual assault unit.

        Previous research has demonstrated how descriptive practices have been used in legal processing. Person descriptions have been used to constitute moral character for purposes of negotiating plea bargains; to determine an organizationally relevant response to a juvenile’s behavior; and to assess the credibility of a rape...

      • 5 The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime
        (pp. 42-52)
        RYKEN GRATTET and VALERIE JENNESS

        One of the more enduring assumptions about how law works (or should work) in society—held by many social scientists and citizens alike—is that legal rules announced from a “high level” (i.e., executive officials, legislatures, and courts) are thereafter simply invoked by a group of officials at a “lower level” in order to arrest, prohibit, or compel some sort of action. Of course, a significant body of work in the social sciences demonstrates that lawmakers’, administrators’, and citizens’ aspiration for the rules to dictate enforcement action is seldom fulfilled. The reasons given for this vary.

        Some argue that extralegal...

    • CAN RIGHTS-BASED LITIGATION ADDRESS INEQUALITIES?
      • 6 Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts
        (pp. 55-61)
        EMILY ZACKIN

        In recent years, prominent constitutional law scholars have made arguments for greater popular participation in determinations about the U.S. Constitution’s meaning. Kramer and Tushnet have offered two of the most prominent arguments for restricting the court’s role in determining the meaning of the Constitution. Kramer emphasizes popular conclusions about the Constitution, while Tushnet stresses congressional deliberation. Yet these authors share the central conviction that courts’ active involvement in constitutional politics discourages and distorts the participation of nonjudicial actors (Tushnet 1999; Kramer 2004). The main thrust of both arguments is that American politics would be more democratic, and therefore better, if...

      • 7 Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights
        (pp. 62-70)
        THOMAS M. KECK

        Judicial decisions defending the rights of lesbian, gay, bisexual, and transgender (LGBT) persons have regularly been criticized for going too far, too fast. It is no surprise that opponents of gay rights have denounced these decisions as examples of illegitimate judicial activism, but some supporters of gay rights have also criticized them as strategically unwise. In doing so, these supporters have echoed a long-standing scholarly argument that rights-based litigation strategies are ineffective at best and counterproductive at worst. In the gay rights context, one version of this argument has been particularly prominent: even when rights advocates win in court, those...

  6. PART II: ORGANIZATIONS AND LAW
    • [PART II: Introduction]
      (pp. 71-72)

      As discussed in the first section, a significant part of the law and society perspective has been to see systems in contemporary society: the features that endure even as individuals move through them and shape them. Law itself is one of the longest enduring of institutions; however, many of its details change and it is often in these very details that the effects of law take shape. One particularly important dynamic of legal change over the twentieth century was the expansion of large-scale corporate organizations and corresponding attempts to limit, through regulation, the effects of their activities. The works in...

    • WHEN IS REGULATION EFFECTIVE?
      • 8 Explaining Corporate Environmental Performance: How Does Regulation Matter?
        (pp. 75-83)
        ROBERT A. KAGAN, DOROTHY THORNTON and NEIL GUNNINGHAM

        In what ways and to what extent does regulation matter in shaping corporate behavior? How important is it compared to other incentives and mechanisms of social control, and how does it interact with those mechanisms? As all firms do not respond in the same way to law or to other external pressures, how do we understand variation in corporate behavior?

        In seeking to answer these questions, the sociolegal and policy literature on regulatory administration traditionally has focused on explaining corporate compliance and noncompliance with existing legal requirements. The tacit assumption has been that legal compliance by targeted groups is the...

      • 9 The “Compliance” Trap: The Moral Message in Responsive Regulatory Enforcement
        (pp. 84-91)
        CHRISTINE PARKER

        The scholarly literature on enforcement suggests that enforcement often fails to improve compliance because it insufficiently deters. The “deterrence trap” means that penalties for noncompliance will either not be big enough to deter rational misconduct, or they will be so large that they exceed the capacity of firms to pay, thereby damaging innocent employees and creditors. Moreover, there is a low probability of detection and successful enforcement action for most business offenses, making the perception of deterrence even less potent. Scholarly evidence and regulatory best practice suggest that regulators should generally use mixes of regulatory styles or strategies to improve...

      • 10 Labor Regulation, Corporate Governance, and Legal Origin: A Case of Institutional Complementarity?
        (pp. 92-100)
        BETH AHLERING and SIMON DEAKIN

        The legal origin hypothesis claims that diversity across national systems of production can be explained by the influence of common law and civil law modes of regulation on economic development. If this hypothesis were correct, “liberal market” systems such as the United States and Britain would owe their liquid capital markets and shareholder-oriented corporate governance, in part at least, to their common law heritage; in the “coordinated market” systems of mainland Europe or East Asia, by contrast, multistakeholder forms of governance would be underpinned by civil law practices and precepts. Thanks to the transplantation of Western legal systems as a...

    • HOW DO REGULATED ORGANIZATIONS INFLUENCE LEGAL OUTCOMES?
      • 11 Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace
        (pp. 103-110)
        LAUREN B. EDELMAN, HOWARD S. ERLANGER and JOHN LANDE

        Civil rights law, in particular Title VII of the 1964 Civil Rights Act (Title VII), creates administrative and legal channels for redressing complaints regarding equal employment opportunity and affirmative action (EEO/AA). Employers cannot forbid employees to use these formal legal channels to express their EEO/AA complaints, but they can encourage employees to use internal complaint procedures in an attempt to satisfy complainants and to insulate the employer from lawsuits, liability, and intervention by regulatory agencies.

        To the extent that employers handle EEO/AA complaints internally, they essentially privatize the adjudication of public rights. This has enormous potential to affect the rights...

      • 12 The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law
        (pp. 111-118)
        SHAUHIN A. TALESH

        This article demonstrates how the content and meaning of California’s consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. Specifically, the research question I examine is: How and under what conditions can business organizations shape the meaning of legislation, once it is enacted? I focus in particular on the capacity of private business to influence how and where disputes over public legal rights are resolved.

        [B]usiness organizations across a wide variety of industries are increasingly engaged in “public” decisionmaking in private settings. Private entities are actively governing themselves while simultaneously delivering services...

  7. PART III: LAWYERS AND LEGAL WORK
    • [PART III: Introduction]
      (pp. 119-120)

      Everyone’s life is touched daily by law, directly and indirectly. But social inequalities and the dramatic complexity of modern life can make “the law” appear distant, foreign, even alienating. Like doctors, people often need lawyers during the worst moments of life, and in those moments lawyers can wield considerable power. As intermediaries between individuals and the formal organizations of law, these “priests at the temple” are an important part of how people understand law, relate to courts, and experience justice. A special and continuing goal of law and society scholarship has been to examine the roles of lawyers in people’s...

    • HOW DO HIERARCHIES INFLUENCE THE LEGAL PROFESSION?
      • 13 Do Rankings Matter? The Effects of U.S. News & World Report Rankings on the Admissions Process of Law Schools
        (pp. 123-130)
        MICHAEL SAUDER and RYON LANCASTER

        [T]here has been a great increase in the number of rankings of educational institutions published by widely circulating magazines and newspapers both in the United States and internationally. Part of a general trend toward increased accountability and transparency through the development of social measures, this proliferation of rankings has generated much concern about their validity, how students use them, and how the behaviors of schools are changed in reaction to them. Nowhere is this concern more palpable than in the field of legal education. Perhaps because there is a single publication that dominates the field of law school rankings—U.S....

      • 14 Lawyer Satisfaction in the Process of Structuring Legal Careers
        (pp. 131-138)
        RONIT DINOVITZER and BRYANT G. GARTH

        Decades of work on the legal profession have confirmed that there are hierarchies in the profession that every lawyer knows. Access to the most prestigious positions has not been attained by women and minorities in proportion to their representation in the lawyer population. At the same time, however, this inequality is not consistently reflected in measures of job satisfaction—and it is this disjuncture of expressions of job satisfaction within structures of inequality that calls for a new approach to understanding lawyer satisfaction. We therefore seek in this article to steer the literature on job satisfaction in the legal profession...

    • WHAT FORCES INFLUENCE LAWYERS’ PRACTICES?
      • 15 The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995
        (pp. 141-146)
        JOHN P. HEINZ, EDWARD O. LAUMANN, ROBERT L. NELSON and ETHAN MICHELSON

        A hypothesis that the urban bar is essentially divided into two distinct sectors or areas of practice was propounded inChicago Lawyers: The Social Structure of the Bar(Heinz and Laumann 1982):

        [W]e have advanced the thesis that much of the differentiation within the legal profession is secondary to one fundamental distinction—the distinction between lawyers who represent large organizations (corporations, labor unions, or government) and those who represent individuals. The two kinds of law practice are the two hemispheres of the profession. Most lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator....

      • 16 Lawyers, Mediation, and the Management of Divorce Practice
        (pp. 147-156)
        CRAIG A. MCEWEN, LYNN MATHER and RICHARD J. MAIMAN

        Discussions of legal practice and dispute resolution are often dominated—and distorted— by the tendency to view the world in either-or terms. Both the popular and academic literatures are preoccupied with contrasts between formal and informal processes, competitive and cooperative attorney styles, clients’ rights and needs, lawyer and client control of decisionmaking, and so on. Whatever utility it may have for framing rhetorical questions about legal reform, such binary thinking does not accord with the more complex realities of legal practice, which are often located not at one end or another of such polarities but in the dynamic interplay between...

    • CAN LAWYERS ADDRESS INEQUALITIES THROUGH SERVICE AND POLITICAL WORK?
      • 17 The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment
        (pp. 159-165)
        CARROLL SERON, GREGG VAN RYZIN, MARTIN FRANKEL and JEAN KOVATH

        This article reports findings from a randomized experiment to test the effects of a program that provided legal representation to low-income tenants in New York City’s Housing Court. While almost all landlords in Housing Court have the benefit of legal representation, the vast majority of tenants do not. Legal advocates for the poor have thus argued for a right to legal counsel in Housing Court, similar to the right that exists in Criminal Court, on grounds that it would ensure due process of law and procedural safeguards in an area of vital interest to tenants, their families, and society. Aside...

      • 18 Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine
        (pp. 166-172)
        LISA HAJJAR

        Around the world, lawyers often play important roles in formulating and advancing social or political causes. “Cause lawyering” refers to the legal and extralegal engagements of politically motivated lawyers, whether the cause is comprehensive transformation, such as independence or democratization, or a more limited aspect of public policy, such as expanded rights or guaranteed protections of some kind. In contrast to “conventional” or “client lawyering,” which is tailored to accommodate prevailing arrangements of power, cause lawyering involves the application of professional skills and services to transform some aspect of the status quo.

        The very notion of “cause” implies agency, motivation,...

  8. PART IV: LEGAL CONFRONTATIONS—DISPUTING AND LEGAL CONSCIOUSNESS
    • [PART IV: Introduction]
      (pp. 173-175)

      People often equate law with courts and legal professionals. If it really began and ended with these formal settings and actors, we might expect law to be far removed from our lives because few people spend a regular or significant amount of time with the formal law. Most people spend more time at work, shopping, or even in the doctor’s office. Yet, law is in all of these places and even in someplace as informal as our neighborhoods.

      As a seemingly omnipresent part of the contemporary world, law serves as a source of meaning for people in daily life. People...

    • 19 A New Social Constructionism for Sociolegal Studies
      (pp. 176-182)
      ELIZABETH MERTZ

      I hope to indicate a way in which social science can overcome (indeed, has been overcoming) analytic dichotomies that have plagued attempts to understand human societies in general, and the role of law in particular. [T]he concept of social construction can bring together analysis of idea and action, meaning and material life, constraint and creativity, power and resistance, stasis and change—and can do so through a form of analysis that combines empirical and critical work. Another interesting facet of this approach is its synthesis of a moderate skepticism regarding the fixed or natural character of categories—a skepticism that...

    • WHY DO PEOPLE TURN TO LAW IN DISPUTES?
      • 20 Litigating within Relationships: Disputes and Disturbance in the Regulatory Process
        (pp. 185-192)
        CARY COGLIANESE

        Conflicts pervade society, and legal institutions provide means of resolving those conflicts. The role courts play in society depends in part on when (and why) people seek out these institutions to resolve disputes. Over the years, researchers from several disciplines have extensively examined what leads people to step outside their ordinary patterns of interacting to resolve disputes through litigation. Past research provides remarkably consistent findings: Litigation usually arises as a last resort, signaling either a breakdown in social relationships or a lack of close relationships at the outset (e.g., Macaulay 1963; Galanter 1983; Ellickson 1991). Most people do not rush...

      • 21 Pursuing Rights and Getting Justice on China’s Ethnic Frontier, 1949–1966
        (pp. 193-200)
        NEIL J. DIAMANT

        It seemed like just another ordinary fall day in a village of the Yi minority community in Yunnan Province, on China’s southwestern border. As the sun rose over the glistening fields, families woke up and began their chores. Sometime later, their tasks completed, several young women, laden with recently harvested produce, met in the village square to go to the market town, as was their custom and duty. This was not an easy trip: Yunnan was a poor, mountainous province with few paved roads, railways, or motorized transport.

        After walking for several hours, they arrived at their destination. The market...

    • HOW DO PEOPLE USE IDEAS AND IDEALS IN LEGAL DISPUTES?
      • 22 Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund
        (pp. 203-210)
        GILLIAN K. HADFIELD

        Most lawyers and judges thought it would be an easy choice. When the 9/11 victims and those who lost family members in the attacks were offered an alternative to complex, uncertain, multi-year litigation—fast, guaranteed payment from the September 11 Victim Compensation Fund (VCF) comparable to what they might receive if they won in court—most expected them to accept the offer in droves. And while accept they did—fewer than 100 lawsuits were ultimately filed, while the VCF paid out some 5,500 claims with an average of $1.2 million each ($2 million for the people who lost a family...

      • 23 Justice Excused: The Deployment of Law in Everyday Political Encounters
        (pp. 211-220)
        GEORGE I. LOVELL

        In June 1939, Layle Lane wrote to U.S. Attorney General Frank Murphy to ask the Justice Department to investigate the case of Elijah Harris. According to Lane, Harris was being held in a prison camp in Everglades, Florida, after allegedly being involved in a car accident in which a white child had died. Lane reported that Harris had not received a fair trial, that he already had paid fines that were supposed to result in his freedom, and that he was receiving brutal treatment. Lane also suggested that Florida was operating a forced labor camp and extorting money from the...

    • HOW DO IDEAS INFLUENCE PEOPLES’ BELIEFS ABOUT LAW?
      • 24 Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers
        (pp. 223-231)
        TOM R. TYLER and ROBERT J. BOECKMANN

        The desire to punish those who break social rules is a widespread, if not universal, feature of human societies. Social psychologists, sociologists, and other law and society scholars have a long-standing interest in understanding why people want to punish rule breakers, that is, in understanding the social meaning of rule-breaking behavior.

        This study explores why people want to punish rule breakers. It addresses two issues: (1) the sources of support for the punishment of rule-breaking behavior and (2) the nature of public support for punishing those who break social rules. Three basic sources of support are compared: crime-related concerns, concerns...

      • 25 Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment
        (pp. 232-240)
        LAURA BETH NIELSEN

        In this article I analyze the legal consciousness of ordinary citizens by examining how experiences with and legal attitudes toward offensive public speech vary by race, gender, and class. I find that white women and people of color experience dramatically higher levels of offensive public speech and that these experiences significantly affect their daily lives. Yet experiencing harms from offensive public speech does not translate into supporting its legal regulation. Subjects offer a variety of reasons to justify their opposition to the legal regulation of such speech. Members of different racial and gender groups articulate distinctive discourses about offensive public...

    • HOW DOES CONSCIOUSNESS INFLUENCE THE CONSTRUCTION OF LAW?
      • 26 Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies
        (pp. 243-252)
        ANNA-MARIA MARSHALL

        Many significant law and society studies have documented patterns of legal mobilization among average people confronting conflict in their daily lives. These studies have demonstrated that although legal rights and entitlements may be formally available, they are rarely invoked. There can be considerable difference between what people are entitled to under law and what they actually receive. Thus, this article fits into a long tradition of exploring this gap between the law on the books and the law in action, but it builds on this tradition by including in the “law in action” the meaning-making activities of ordinary women confronting...

      • 27 Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness
        (pp. 253-260)
        MARY E. GALLAGHER

        Reading about China in the media one finds a remarkable number of articles attesting to the fact that “rights consciousness” or “legal consciousness” is rising among Chinese citizens of all types, urban and rural, male and female, rich and poor. In China as well, in government documents, in newspaper reports, and in official interviews with Communist Party officials, one hears and sees a familiar refrain: “the people’s legal consciousness” (falü yishi) is growing stronger by the day and is partly responsible for the sharp rise in litigation, petitioning, and protests and demonstrations (Chen 2004). Given that increased social attention and...

  9. PART V: LAW AS AN EMERGENT INSTITUTION
    • [PART V: Introduction]
      (pp. 261-262)

      The collapse of the Soviet Union in 1989 spurred numerous post-Communist states to create new constitutions, new political systems, new economies, and new cultural values—a massive laboratory for what law could accomplish (Murrell 2001). The collapse of apartheid in South Africa ushered in a similarly radical state of transition. When we look at law as an “emergent” institution, we often have such upheavals in mind. But very often we assume that law possesses great force and that the extension of law is a form of progress.

      These assumptions reflect ideas from the classic early work on law from a...

    • HOW DOES LAW RELATE TO OTHER SOCIAL INSTITUTIONS?
      • 28 Competing Institutions: Law, Medicine, and Family in Neonatal Intensive Care
        (pp. 265-275)
        CAROL A. HEIMER

        Sociolegal scholars have long acknowledged that the influence of law varies from one setting to another and that other normative systems also shape human action. Sociolegal scholars have also investigated the impact of law in organizations, where participants face a multitude of normative pressures arising from overlapping institutional jurisdictions. To clarify when the law will be especially influential and when rival normative systems will instead have more impact, we now need to look closely at how the law and other institutions interact in organizational contexts.

        This article uses the competition between legal, medical, and familial institutions in neonatal intensive care...

      • 29 Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth
        (pp. 276-284)
        KATHERINE BECKETT and BRUCE HOFFMAN

        Much recent sociolegal scholarship focuses on hegemony and resistance to it. In this scholarship, hegemony is broadly understood as power that maintains and naturalizes existing social structures; resistance refers to actions that lay bare the historical and constructed nature of these social arrangements and the inequalities they generate and sustain. This literature has generated many important insights regarding law as a source of both hegemony and resistance; yet . . . most such studies focus on everyday acts of resistance or the resistance of ordinary citizens in administrative settings such as courtrooms and welfare offices. As a result, the role...

    • HOW DO LEGAL ORDERS CHANGE WHEN COUNTRIES CHANGE?
      • 30 Alternative Readings: The Status of the Status of Children Act in Antigua and Barbuda
        (pp. 287-292)
        MINDIE LAZARUS-BLACK

        English colonists settled Antigua [one of the Leeward Islands in the eastern Caribbean] in 1632. During the next century, they turned the island into a slave society known principally for the quantity and quality of its sugar. Slavery ended in 1834, but the vast majority of the working population remained tied to labor on the estates because there was little available land either to cultivate or to purchase. Planters ran the island’s economy and its local government until almost the middle of the 20th century. Since the 1950s the economy has shifted away from sugar and other agricultural crops and...

      • 31 Landscapes of the Law: Injury, Remedy, and Social Change in Thailand
        (pp. 293-300)
        DAVID M. ENGEL

        From an airplane, northern Thailand is a panorama of wild mountains, rice fields, orchards, and urban sprawl. Looking out the window, passengers cannot, of course, see the borderlines separating Thailand from neighboring Myanmar or the province of Chiangmai from the adjacent provinces of Tak, Maehongson, Lampang, Lamphun, and Chiangrai, although the aerial view of the Thai state is precisely the perspective favored by governmental mapmakers. Nor can passengers discern features of the physical landscape that have special significance for the people below, such as sacred trees and pillars, or village shrines and temples, although these features of the physical landscape...

      • 32 Truth, Reconciliation, and the Creation of a Human Rights Culture in South Africa
        (pp. 301-310)
        JAMES L. GIBSON

        South Africa’s truth and reconciliation process was surely the most ambitious the world has ever seen. Not only was the Truth and Reconciliation Commission (TRC) charged with investigating human rights abuses and granting amnesty to miscreants, but the process was expected as well to contribute to a broader “reconciliation” in South Africa (the “reconciliation” half of the truth and reconciliation equation). In a country wracked by a history of racism and racial subjugation, and one just emerging from fifty years of domination by an evil apartheid regime, doing anything to enhance reconciliation between the masters and slaves of the past...

    • HOW HAS LAW BECOME GLOBAL?
      • 33 Rights, Religion, and Community: Approaches to Violence against Women in the Context of Globalization
        (pp. 313-320)
        SALLY ENGLE MERRY

        As concern about gender violence mounts globally, it is increasingly viewed as a serious human rights violation subject to legal intervention. The battered women’s movement, centered in Europe and North America, has pressed police and courts to view gender violence as a serious crime and has encouraged women to see themselves as having the right not to be hit. The movement has fought for new laws to punish batterers and to provide protective orders. As the global debate expands, particularly in United Nations (UN) meetings such as the UN Special Session, called Beijing Plus Five, in 2000, the Commission on...

      • 34 Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes
        (pp. 321-329)
        YVES DEZALAY and BRYANT GARTH

        International commercial arbitration has become big legal business, the accepted method for resolving international business disputes. Success can be seen in high-profile disputes, such as those arising from the nationalizations of oil concessions in the 1970s and 1980s, huge international construction projects such as the tunnel under the English channel, and such international incidents as the French sinking of theRainbow Warrioron its Greenpeace mission, which have increasingly been submitted to international panels of arbitrators. Success is also evident in the tremendous growth since the late 1970s in the number of arbitration centers, arbitrators, and arbitrations. International commercial arbitration...

      • 35 National Politics as International Process: The Case of Anti–Female Genital Cutting Laws
        (pp. 330-338)
        ELIZABETH HEGER BOYLE and SHARON E. PREVES

        Social science literature tends to assume a link between national policies and local civil societies. Although that model may represent Western nations reasonably well, its extension to African nations and other countries in the Southern Hemisphere is often problematic. Such analyses miss an important piece of the picture: the international context of national action. Examining the evolution of laws from power struggles within countries reifies the nation-state and misses larger issues of control in the international system.

        An examination of the practice and policies of female genital cutting (FGC) provides an interesting case to explore the importance of international culture...

  10. PART VI: LAW AS A PRODUCTIVE INSTITUTION
    • [PART VI: Introduction]
      (pp. 339-340)

      Law has the potential to control behavior, but it also provides meaning, shapes ideas, and constructs identities. In short, it can produce many important elements of social life. Consider the productive power of law in relation to marriage. If you were to ask a group of college students in the United States in their early twenties for their thoughts about whether and under what circumstances they would get married, you could gain insights about the social meaning of marriage. Among the answers from this group of students, you would likely hear some people say that they want to get married...

    • HOW DOES LAW INFLUENCE GROUP IDENTITY?
      • 36 Through a Green Lens: The Construction of Customary Environmental Law and Community in Indonesia’s Maluku Islands
        (pp. 343-350)
        CHARLES ZERNER

        This essay charts historical changes in the discursive construction of ritual performances, practices, and customary law in the Central Maluku Islands of Indonesia.Sasiis a generic name for a varied family of institutions, laws, and rituals that permitted social control over access to forests, fields, and orchard lands and, to a lesser extent, the marine environment, through the imposition of a temporary prohibition on entry or harvest. By contrasting descriptions of sasi written during the late 19th and early 20th centuries with recent descriptions offered by a variety of actors, including Indonesian government officials, environmental and socially oriented nongovernmental...

      • 37 Unsuitable Suitors: Anti-Miscegenation Laws, Naturalization Laws, and the Construction of Asian Identities
        (pp. 351-358)
        DEENESH SOHONI

        In 1861, Nevada became the first state to pass a law specifically barring marriages between whites and Asians. Over the course of the next century, until the 1967 Supreme Court decisionLoving v. Virginiadeclared anti-miscegenation laws unconstitutional, an additional 14 states came to ban marriages between whites and Asians. While social scientists have detailed extensively how whites created laws to limit the rights and privileges of minority groups within the United States, less frequently examined are the manner by which these laws helped shape and determine the meaning of racial groups and the features selected to demarcate group boundaries....

    • CAN GROUPS REMAKE IDENTITY THROUGH LAW?
      • 38 Think of the Hippopotamus: Rights Consciousness in the Fat Acceptance Movement
        (pp. 361-369)
        ANNA KIRKLAND

        Everyone is talking about fat people. Contemporary American society is experiencing a period of intense media attention and general cultural anxiety over the so-called obesity epidemic. Being fat is highly stigmatized and, following the tone of mass media coverage, most people attribute it to individual choices and behaviors. Attention to obesity supports narratives about the decline of American society from across the political spectrum. On the right, decrying obesity leads naturally to calls for greater personal responsibility and aids in dramatizing the dangerous expenses of national health care. On the left, critics target Big Food, corn subsidies, and junk food...

      • 39 Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship
        (pp. 370-378)
        ERICH W. STEINMAN

        On August 4, 1989, 25 federally recognized Washington tribes and the state of Washington signed the Centennial Accord, in which all parties explicitly recognized the sovereignty of the other parties and established mutually acceptable procedures for conducting subsequent relations on a “government-to-government” basis. The Centennial Accord constituted a striking reversal of Washington State practices and generated national and international attention. Infamously, the state government and its citizenry had for years emphatically denied tribal sovereignty through their words and actions. Continuing with the previous practice of treating tribes and tribal members as ethnic groups subordinate to state authority, the state and...

    • HOW DOES LAW OPERATE AS A SYSTEM OF IDEAS?
      • 40 Blue Jeans, Rape, and the “De-Constitutive” Power of Law
        (pp. 381-386)
        KITTY CALAVITA

        On 10 February 1999, Italy’s highest court of appeals overturned the conviction of a driving instructor who had allegedly raped his 18-year-old student. The Corte di Cassazione reasoned that the young woman was wearing blue jeans at the time, so the sexual intercourse must have been consensual. The Justices proclaimed, “It is impossible to take off jeans . . . without the active cooperation of the person wearing them.” The decision set off a wave of protest across the political spectrum in Italy and around the world. Alessandra Mussolini, deputy of the right-wing National Alliance Party and granddaughter of former...

      • 41 Do Blind People See Race? Social, Legal, and Theoretical Considerations
        (pp. 387-396)
        OSAGIE K. OBASOGIE

        Until the mid-twentieth century, the dominant perspective was that social categories of race reflect inherent biological differences. This supported a Eurocentric idea that there is a natural racial hierarchy that reflects each groups’ innate abilities. While this perspective has been discredited over the past few decades, bodies and phenotype continue to dominate how we understand race. Indeed, if there has been one constant throughout these shifting and contested understandings, it is the widespread and largely unquestioned belief that race is primarily a matter of visually obvious physical features.

        This emphasis on the visual character of race can be summarized as...

    • CAN SOCIAL SCIENCE INFORM PROGRESSIVE CHANGE IN LAW?
      • 42 From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State
        (pp. 399-402)
        BRYANT GARTH and JOYCE STERLING

        The 1960s, in retrospect, were a good time for an alliance between law and social science both because of what was happening in the production of knowledge and what was happening in the streets and in the civil rights movement “outside” of the academy. Social science provided a new professionalizing expertise that offered ways to manage the new social agenda. Sociological knowledge thus gained in value as a new generation helped to define a political agenda of concern with urbanization, race relations, poverty, and crime. This social science learning could be used to challenge the postwar complacency of law schools...

      • 43 What Counts as Knowledge? A Reflection on Race, Social Science, and the Law
        (pp. 403-410)
        RACHEL F. MORAN

        In the years since the U.S. Supreme Court handed downBrownv.Board of Education(1954), most discussions of the case have focused on whether it was effective in promoting lasting equality of opportunity in the public schools. Although this profoundly important question dominates retrospectives onBrown, another unresolved controversy relates to whether the ruling has altered in any fundamental way the role of social science evidence in constitutional litigation. There is no doubt that the National Association for the Advancement of Colored People Legal Defense Fund (NAACP LDF) deliberately used this type of research to pursue legal transformation and...

  11. Bibliography
    (pp. 411-416)
  12. About the Authors
    (pp. 417-422)
  13. About the Editors
    (pp. 423-424)
  14. Index
    (pp. 425-429)