Many married women with separate property held their property as stock‐in‐trade and traded independently from their husbands. However, if the business failed, a married woman trader's ability to take advantage of bankruptcy process depended on the exception to coverture according to which she held her separate property. This article is the first to examine reported bankruptcy cases involving married women in their doctrinal context and in relation to other exceptions to coverture. It analyzes the issues arising in the eighteenth century and argues that they should be understood in relation to the larger picture of married women's law, especially the law of private separation. The article also considers the oblique relationship between private separation jurisprudence and married women's bankruptcy in the nineteenth century, a relationship that was bridged by a line of cases that, on the surface, seem to be unrelated.

Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule‐of‐law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel implications for such basic rule‐of‐law issues as the choice between rules and standards, the relation of bureaucratic and judicial control, the proper scope of judicial intervention into dysfunctional public agencies, and the justiciability of “positive” (or social and economic) rights.

A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health crisis was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy‐making process. Indeed, once one considers informational and political constraints, as well as how the branches of government can fruitfully share policy‐making functions, the asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power.

A growing body of sociolegal scholarship focuses the study of law away from formal texts and legal institutions and toward the experiences and perceptions of “everyday” citizens. This study introduces seventeen “radical” environmentalists who engage a repertoire of tactics that includes some actions that involve relatively severe forms of illegality. This research seeks to investigate the role of civil disobedience and lawbreaking within the radical environmental movement and the corresponding legal consciousness of movement actors. Utilizing ethnographic fieldwork and content analysis, this analysis suggests that Ewick and Silbey's (1998) three‐tiered model of legal consciousness is an operative starting point, but could be enhanced through theoretical expansion. This study proposes a new category of legal consciousness—Under the Law—that views the law as the protector and defender of a social order that is fundamentally illegitimate. Under the Law is qualitatively different from existing conceptualizations of legal consciousness and reaffirms the mutually constitutive nature of law and society.

This article analyzes the regulatory reform and implementation process in Australia following three event clusters: an industrial explosion, recent terrorist attacks, and a corporate collapse. The research employed a characteristic analysis where the compliance challenge on the ground is understood as affected not only by the enforcement efforts of the regulator, but also the reform process and the structure of the industry concerned. In each of the cases studied, preferred reforms could be understood as “metaregulatory” and framed around outcomes, principles, and processes rather than a preoccupation with adherence to prescriptive rules. Metaregulation was seen as the most appropriate regulatory framework to maintain the integrity between regulatory goal, regulatory regime, and compliance behavior. Yet, reform pressures that shaped the causal narrative associated with the particular risk, the emotional work involved in compliance, and success strategies of sites all affected what risks were actually reduced and hence the likelihood of a repeat disaster.

Given the often perplexing relationship between mental illness and substance abuse among offenders, this article looks at how a juvenile drug court staff's presumptions of a youth's mental illness affect its decision‐making process. Based on thirteen months of ethnographic fieldwork at a Southern California juvenile drug court, this article uses Manzo and Travers's “law in action” approach to analyze how the staff readjusts its application of normal remedies (a concept developed by Robert Emerson) designed to respond to a youth's noncompliance when it suspects mental illness may be influencing the youth's actions. In doing so, it highlights how court staff's considerations of youth mental disorders arise out of its everyday work practices. Furthermore, the article discusses how staff negotiations around a youth's mental illness create tensions for the juvenile drug court's accountability‐based model of therapeutic jurisprudence, because assessments of mental illness tend to mitigate responsibility for a youth's behavior.

Pierson v. Post (1805) has long puzzled legal teachers and scholars. This article argues that the appellate report was the product of the intellectual interests (and schooling) of the lawyers and judges involved in the case. They converted a minor dispute about a fox into a major argument in order to argue from Roman and other civil law sources on how to establish possession in wild animals, effectively crafting an opportunity to create new law for New York State. This article explores the possibility that the mastermind behind this case was the chief justice of the court at the time, James Kent. The question of Kent's involvement in 1805 remains elusive. However, the article uses annotations he made on his copy of the case and discussion of Pierson v. Post in his famous Commentaries to demonstrate the nature of his later interest and to explore the project of building a learned law for New York State.

Under what conditions can US courts contribute to policy change? This article shows how a case study can be used to test and develop a theory of judicial policy making answering this question. In The Hollow Hope (1991, 2008), Gerald Rosenberg theorizes that judicial policy making is constrained by the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's inability to implement its rulings. Ninth Circuit injunctions protecting the Northern Spotted Owl and orders to manage ecosystems in the Pacific Northwest invalidate and help reformulate Rosenberg's theory. These rulings show how judicial interpretations of statutes, regulations, precedent, and facts allow judicial policy making if these interpretations are accepted by the legal and political culture when Congress and the presidency are too divided to override them. The owl rulings also show how statutes facilitate the implementation of judicial rulings, a point not developed by Rosenberg, while additionally providing further evidence for Rosenberg's specification of conditions allowing implementation.

This article is an inquiry into Russian legal culture and is based on the assumption that any institution transplanted from one social environment to another will be reinterpreted and reshaped, so that it can be accepted into the receiving society. The process of adaptation creates an opportunity to examine the receiving society's established practices and way of thinking. To demonstrate their effects, this article explores the author's research findings carried out in two Russian towns where institutions of media self‐regulation were set up. The findings are analyzed comparatively in order to identify how the key players in the two towns interpreted the initial ideas, established procedures and rules for the newly set up institutions, and defined the roles that were attributed to them. The results of the two‐city case study are then used to interpret some specifics of the internal logic of the local legal culture.

This article reports on empirical research undertaken to test the claim made in a law reform project that citizens could be made more certain of their legal obligations by changing the legal paradigm used to express their rights and obligations. Our research tested a number of hypotheses involving different formulations of the claim being made. We find that the alternative paradigm being presented was inferior to current practice and offer some reasons that would explain our results and the significance of this work for other areas of legal research.

This article examines the process of fragmentation to understand how the process of establishing new school districts results in high metropolitan‐area segregation. Using educational and census data, the article examines how the political process of creating new school districts in Jefferson County, Alabama, changed the nature of segregation. School segregation remained high from 1960 to 2005, but while in the late 1960s segregation of students was predominantly within districts, by 2005 segregation was primarily between districts. Over time, school district boundary lines gained meaning in terms of the characteristics of the district residents. In creating separate districts, local control has the same effect as earlier de jure laws of maintaining racial segregation in the Birmingham area, with few prospects for overcoming boundaries that divide students and opportunities along racial lines. Local control within the current judicial context will define separate populations and maintain or increase metropolitan segregation.

The death penalty debate in the United States has recently undergone a fundamental shift. The possibility of executing the innocent has emerged as some abolitionists' most salient argument, displacing debates over such issues as fairness, deterrence, and cost. Innocence has managed to move to the fore of the debate in part because of the success of death penalty opponents in attaching epistemological certainty to one particular category of postconviction exonerations, those vouched for by the authority of DNA evidence. We suggest that such moves are primarily rhetorical because, while DNA evidence may be more accurate and reliable than other forensic science, it still fundamentally probabilistic in nature and is prone to uncertainties at all stages of its production. Yet, because of the certainty attached to DNA evidence in public discourse, it can be used as a lever with which to challenge law's claims to truth‐making authority, and to undermine public trust in the death penalty. A few abolitionists and other scholars have expressed misgivings about the abolitionist embrace of the innocence argument. We push this concern further, suggesting that both abolitionists and death penalty reformers, who seek to promote a “scientific” death penalty centered on DNA evidence, draw upon a mythologized notion of “science” as a producer of epistemic certainty.

This article focuses on the legal geography of gated communities. Sociolegal research has paid comparatively little attention to how specific material forms fare within legal contexts. Drawing on work in legal geography and in science and technology studies, this article isolates judicial decisions that deal with the borders of gated communities from other cases involving private homeowner associations. By focusing on these boundary disputes in which outsiders are excluded from the area, this article finds that courts are resisting the localism presented by gated communities and are instead articulating a social imaginary in which the landscape flows uninterrupted by the exclusionary presence of gates. In contrast to the privatopia literature, this article finds that courts are not complicit in promoting neoliberal visions of community. The social imaginary being developed by courts resists the spatial differentiation of gated communities, producing in its place a thoroughly modern polity in which legal, economic, and political relations flow easily between those inside and outside the gate.

This article argues that the cultural self‐understandings of the judiciary can exert a profound effect on legal outcomes under a bill of rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British‐descended judicial culture that prioritizes, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on their politicolegal resource set including the attitude of the political branches (legislature and executive) to the claim being forwarded.

This article employs a new framework for legal change, the recursivity of law, to explain why China's criminal procedure law has cycled through numerous reforms between 1979 and 2008 without improving the conditions of lawyers' criminal defense work. The authors argue that Chinese lawyers' difficulties in criminal defense have deep roots in the recursive nature of the criminal procedure reforms. In particular, those difficulties were produced by interactions of the four mechanisms of recursivity (indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch) in both lawmaking and implementation. The empirical analysis shows that these mechanisms are linked in pairs and in sequence. This logic of change offers an integrated interdisciplinary approach to the enactment and implementation of law in other times, places, and areas of law.

In the face of pressures to expand the rule of law, in 2004, Japan introduced a new law school system in order to produce more and better qualified lawyers. This article explains why the new law school system solution was selected from among other alternatives such as reforming the national bar exam, abolishing mandatory legal training, reforming existing legal education, or redefining the jurisdiction of lawyers. I argue that the law school system was adopted because the legal establishment co‐opted pro‐law school scholars and other reformists. Although American‐style law schools have been introduced in Japan, power has not yet shifted entirely from the legal establishment to the pro‐law school scholars; while the legal establishment may no longer have absolute control of the Japanese judicial arena, it remains powerful because it successfully co‐opted pro‐American elites into judicial reform. By analyzing the case of the Japanese law school system, this article indicates that transplants of global institutions may often be more symbolic than practical due to co‐optation tactics used by powerful local actors.