This article is part of a larger study about the factors shaping the exercise of discretion by Immigration and Naturalization Service (INS) inspectors. It focuses on an infrequently examined topic: how agency behavior is affected when government depends on private enterprise to help enforce legal requirements. My examination of the INS's relationship with international airlines reveals that airlines are part of a third-party liability system. Airlines are mandated by law to screen foreign travelers prior to transporting them to the United States, in order to ensure foreign travelers' admissibility to the country, as well as required to remove all inadmissible travelers at airline cost. The study shows how third-party liability requirements generate a complex system of exchange relations and dependence between the INS and international airlines, a system that affects in important ways how the INS handles the cases of suspected inadmissible travelers.

This article introduces the law-before as an analytic tool for enhancing explanations of legal reform. Based on an integration of neo-institutional law and organizations studies and punishment studies of local variation in penal policy, I define the law-before as the past organizational practices and power arrangements that precede law-on-the-books and shape present day implementation. I utilize the law-before as a heuristic to investigate the legacy effects of variations in local practice on the implementation of the prison downsizing law, AB 109, or “Realignment,” in California. I analyze organizational documents produced by county practitioners in the aftermath of AB 109's enactment in 2011 as empirical windows into how actors shape the meaning of law in local settings. I find that practitioners in counties with divergent historical imprisonment patterns enact four processes (overwriting or underwriting law, selective magnification, and selective siting) to arrive at distinct interpretations of AB 109 as mandating system-wide decarceration or the relocation of incarceration from state prisons to county jails. Although my data do not speak to the ultimate implementation of AB 109, the processes revealed have practical implications for the reform goal of decarceration by rationalizing distinct resource allocations at an early stage in the implementation process.

Social scientists have long investigated the social, cultural, and psychological forces that shape perceptions of fairness. A vast literature on procedural justice advances a central finding: the process by which a dispute is played out is central to people's perceptions of fairness and their satisfaction with dispute outcomes. There is, however, one glaring gap in the literature. In this era of mass incarceration, studies of how the incarcerated weigh procedural justice versus substantive justice are rare. This article addresses this gap by drawing on unique quantitative and qualitative data, including face-to-face interviews with a random sample of men incarcerated in three California prisons and official data provided by the California Department of Corrections and Rehabilitation (CDCR). Our mixed-methods analysis reveals that these prisoners privilege the actual outcomes of disputes as their barometer of justice. We argue that the dominance of substantive outcomes in these men's perceptions of fairness and in their dispute satisfaction is grounded in, among other things, the high stakes of the prison context, an argument that is confirmed by our data. These findings do not refute the importance of procedural justice, but show the power of institutional context to structure perceptions of and responses to fairness, one of the most fundamental principles of social life.

We are entering a period of paradigmatic transition. From the paradigm of modernity we have come to a new paradigm which by now can only be defined inadequately. The inevitability of such inadequacy lends to the name of postmodernity its grain of truth. Periods of paradigmatic transition are periods of fierce competition among rival epistemologies and knowledges. They are, therefore, periods of radical thinking—both deconstructive and reconstructive thinking. When viewed from the old outgoing paradigm, they are periods of unthinking or of utopia. When viewed from the new, incoming paradigm, they are periods of temporary and fragile scaffoldings, emergent ruins sustaining nothing but themselves, witnessing nothing but the future. In periods of paradigmatic transition, all competing knowledges reveal themselves as rhetorical in nature, bundles of arguments and of premises of argumentation which circulate inside rhetorical audiences. Indeed, what distinguishes the audiences are the specific arguments and premises of argumentation that they consider valid and convincing or persuasive. In the specific paradigmatic transition we are now entering, any given discipline, be it sociology of law or archeology, tends to be constituted by a larger or smaller number of rival rhetorical audiences. The level of real communication among them is very low and whatever they do in common—books, journals, and conferences—has much more to do with the dominant institutional production of knowledge than with the knowledge produced. In the early stages of the paradigmatic transition, such as the one we are in now, the most fundamental cleavage is between the audiences that deny the very existence of the paradigmatic transition—these we may call the subparadigmatic audiences—and the audiences that assume the existence of such transition. The latter I call the paradigmatic audiences. I would imagine that in this room we have both types of audiences. My argument, being a paradigmatic one, will no doubt be unequally convincing for the different audiences present here today; as such, it will contribute to confirming the different audiences in their differences.

Do immigration lawyers matter, and if so, how? Drawing on a rich source of audio recording data, this study addresses these questions in the context of U.S. immigration bond hearings—a critical stage in the removal process for noncitizens who have been apprehended by U.S. immigration officials. First, my regression analysis using a matched sample of legally represented and unrepresented detainees shows that represented detainees have significantly higher odds of being granted bond. Second, I explore whether legal representation affects judicial efficiency and find no evidence of such a relationship. Third, I examine procedural and substantive differences between represented and unrepresented hearings. My analysis shows no differences in the judges' procedural behaviors, but significant differences in the detainees' level and type of courtroom advocacy. Represented detainees are more likely to submit documents, to present affirmative arguments for release, and to offer legally relevant arguments. Surprisingly, however, I find no evidence that these activities explain the positive effect of legal representation on hearing outcomes. These findings underscore the need to investigate not only what lawyers do in the courtroom, but also less quantifiable factors such as the quality of their advocacy, the nature of their relationship to other courtroom actors, and the potential signaling function of their presence in the courtroom.

Since Marc Galanter (1974) formulated the hypothesis that parties with greater resources, usually “repeat players,” fare better in courts and are better able to influence legal change than “one shotters,” numerous scholars have provided empirical insights into the extent to which stronger parties enjoy advantages in litigation. Studies of U.S. trial courts provide evidence that “haves” do tend to come out ahead (Galanter 1974; Owen 1971; Wanner 1975). Governments generally have been more successful in litigation than businesses and other organizations, which in turn have been more successful than individual litigants. Greater resources allow the “haves” to hire the best lawyers and incur the expenses for extensive discovery, expert witnesses, appeals to higher courts, and other activities. As repeat players, they can structure their interactions with the courts by carefully selecting cases to pursue, engaging in forum shopping, settling cases when the prospects appear low for success at trial or on appeal, implementing comprehensive litigation strategies, and developing favorable legal precedents.

Data from two 1979 potential juror surveys concerning three criminal cases in Yolo County, California, form the basis for an analysis of opinions indicative of prejudgment in those cases. Strong bivariate relationships are demonstrated between knowledge about a specific case, general attitudes on crime, gender, and education level, on the one hand, and two measures of propensity to prejudge a defendant's guilt, on the other. Further, multivariate discriminant function analysis is used to show that these four independent variables taken together are able to produce significant increases in the ability to make predictions of prejudging opinions on the part of the respondents and that knowledge about a specific case is by far the most important variable in determining such predictions.

Jürgen Habermas has from the start had the goal of developing a normative democratic theory based on rational consensus. From The Structural Transformation of the Public Sphere (1989a; first published in 1961) to The Theory of Communicative Action (1984, 1987), Habermas has sought to elaborate the underpinnings for such a critical theory of democracy, one that is oriented to the participation of reasoning citizens. In many respects, Habermas's recent Faktizität und Geltung, while cast as a philosophy of law, bears the fruit of that labor by offering his long-awaited “radical” democratic theory. Habermas calls his theory of democracy “deliberative politics,” clearly aligning himself with those contemporary political theorists who emphasize public deliberation and participation. However, many faithful readers of Habermas may find his approach to legal and political legitimacy in Faktizität und Geltung somewhat surprising. Rather than defending participatory democracy directly, he instead embeds these radical democratic principles in a complex account of the political and legal institutions of constitutional democracies.

Post-World War II theories of modernization, including theories of law and development, have proved inadequate either to explain development and underdevelopment or to make a substantial contribution to our understanding of the role of law in underdeveloped countries. To what extent do contemporary ideas of underdevelopment and dependency in the social sciences provide the foundation for a theoretical renewal in the comparative sociology of law? To answer this question, the paper first examines the origins of these ideas and discusses the methods, presuppositions, and concepts of the principal theoretical writings on underdevelopment and dependency. It then considers two important issues raised by these writings and addressed by a number of recent studies: the relation between the state and classes, and the relationship of peasants to capitalism. This review concludes that theories of underdevelopment and dependency contribute to the reorientation of social research on law by forcing a reappraisal of previous ideologies and proposing new frameworks of analysis. But it also argues that such a reorientation must ultimately transcend those concepts by participating in the elaboration of Marxist theories of law.

Researchers and policymakers have long been concerned about the extent to which such sociocultural factors as ethnicity and gender determine access to organizational rewards and constraints within legal systems. Scholars have also wondered whether less formal processes, such as those found in alternative dispute resolution, are especially susceptible to bias. To test these arguments, we studied the impact of disputants' ethnicity and gender on monetary outcomes in 312 adjudicated and 154 mediated small claims civil cases in Bernalillo County (Albuquerque), New Mexico, in 1990–91. Multivariate analysis including case characteristics showed that much of the effect of disputants' ethnicity and gender on outcomes—especially in courtroom hearings—was accounted for by the kinds of cases in which women and minorities were involved. Controlling for case characteristics eliminated ethnic and gender differences in adjudication, but some ethnic differences remained in mediated case outcomes. Specifically, cases including at least one Anglo mediator resulted in higher monetary outcomes for Anglo claimants, and minority female claimants received lower monetary outcomes in mediated cases in which both mediators were women.

Questions of how and why organizations respond to legal rights are analyzed in several sociolegal research traditions, including studies of legal mobilization, regulation, and neo-institutionalist accounts of the diffusion of organizational structures. Using original qualitative and quantitative data, this article examines the responses of ten organizations to wheelchair access rights that are found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. We find that concepts from each of the research traditions are useful in understanding the sources of variance in response among the organizations in our sample. We focus on four key variables: legal mobilization, commitment, professionalization, and routinization. We contend that these variables offer a relatively parsimonious language for studying organizational responses to the law and for aggregating insights from competing approaches in the literature, both of which are essential to advancing our understanding of the conditions under which law changes society.

How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge-specific reputation of an attorney.

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.

Punitive sterilization has once again returned to the lexicon of American legislative debate. While there is no denying that the America of the social Darwinians and the extreme hereditarians of the late 19th and early 20th century has vanished from our midst, the residue still remains. The early eugenics literature was often punitive in tone, aimed at “purging” the nation of its so-called criminal, degenerate, and other “cacogenic” classes, not by physical extermination but rather through the use of surgical castration or sterilization. Notwithstanding the fact that the early hereditarians were concerned with the alleged inheritance of criminality and social degeneracy, the main thrust of the eugenic sterilizations laws which were passed (beginning with Indiana in 1907) was the reduction and eventual elimination of insanity and feeblemindedness. These laws were clearly gauged to prevent America from being deluged or “inundated” by those socially undesirable classes or categories of persons that the state legislators of that period believed to be the most serious threat to the stability, even the survival, of the nation as they conceived it. The eugenic character of these early laws was often compromised by the inclusion of habitual criminals, rapists, sexual perverts, social degenerates, and other groups where the intent of the legislation was clearly punitive.

This article focuses on the role of social capital in lawyers' careers by examining the career outcomes of Jewish lawyers. Although research on the legal profession has emphasized social capital as an inherently positive resource, this article conceptualizes social capital as multivalent, with the potential for both positive and negative effects. Drawing on five forms of social capital and examining four separate outcomes (type of practice setting, prestige of field of practice, satisfaction, and income), the analyses demonstrate that particular forms of social capital are indeed related to diverging outcomes. This study finds positive effects for the social capital that derives from reciprocity exchanges, but it also finds that the social capital built through dense social ties can lead to less successful professional settings. The conclusion explores the possibilities this raises for understanding the interplay between religion, capital, and legal careers.

The promise of civil rights is the promise of inclusion; yet the vast disparity in incarceration rates between blacks, Latinos, and whites stands as an ugly reminder of the nation's long history of race-based exclusionary practices. In this article, I argue that an important aspect of understanding race and the law in the twenty-first century is an appreciation of the American federal system that structures legal authority, political mobilization, and policy solutions and serves as an important and overlooked obstacle to more complete and sustained racial equality in crime and punishment in the United States. In contrast to the conventional wisdom about the role of the national government in protecting the rights of minorities and other disadvantaged groups, I suggest that crime and justice are arenas where the nationalization of issues has left the most important constituents behind. In fact, local crime politics provides a space where there is regular and ongoing articulation of the inclusionary goals of the civil rights agenda and sustained efforts to move forward in realizing that agenda through meaningful community involvement in promoting public safety, economic development, and social justice. This article explores these themes and offers a discussion of the linkages between federalism, racial inequality and crime, victimization and punishment.

Our analysis addresses whether the legal profession can be classified as experiencing successful feminization. Drawing on the work of Reskin and Roos (1990) and Wright and Jacobs (1994), we suggest that relatively successful feminization occurs where (1) occupational growth is rapid, (2) graduate and specialized degrees are important, and (3) wages are increasing. We develop an argument for the legal profession as a case of successful feminization with data taken from the U.S. census 1970-1990 and from a cohort of lawyers surveyed in 1984 and 1990 as part of the National Survey of Lawyers' Career Satisfaction (Hirsch 1992). Our results suggest that the legal profession was on the road to achieving successful gender integration and feminization during the 1980s. Overall improvements in the economic standing of female attorneys compared with males is occurring among women at or below the median in the earnings distribution and among elite lawyers at the top of the earnings distribution. There is also evidence of a persistent “glass ceiling” in the earnings distribution for women. Analyses of change in evaluations of legal work settings suggest that changes in earnings that favor women's successful entry into law are occurring in a context of growing dissatisfaction with legal work settings. We discuss the implications of our findings for further analyses of the gender integration of male-dominated occupations.

As late as the eighteenth century, ordinary jury trial at common law was a judge-dominated, lawyer-free procedure conducted so rapidly that plea bargaining was unnecessary. Thereafter, the rise of adversary procedure and the law of evidence injected vast complexity into jury trial and made it unworkable as a routine dispositive procedure. A variety of factors, some quite fortuitous, inclined nineteenthcentury common law procedure to channel the mounting caseload into nontrial plea bargaining procedure rather than to refine its trial procedure as contemporary Continental legal systems were doing.

This paper examines the relationship between social structures and community justice. It rejects both those arguments that see community justice as independent experiments for the development of an alternative system of justice and those that see such experiments as functioning solely in the interests of dominant legal and social structures. Based on a study of the collective justice systems of a variety of small-scale cooperatives, the paper develops a theory in which community justice is shown to be ambiguously related to the larger system in which it is set and to the groups and individuals who make up that system. This ambiguity, it is argued, is capable of transforming the wider structure, and the theory allows us to glimpse a potential for broad-based socio-legal change.

Much of the British empire was acquired by purchase rather than conquest, but indigenous peoples usually acquired little wealth despite extensive land sales. Explanations of where the money went tend to blame either the imprudence of indigenous sellers or the duplicity of British buyers. This article suggests that a focus solely on the conduct of the individuals operating within the land market rests on a poor theoretical understanding of the relationship between law and markets, an understanding that blinds historians to the allocative effects of markets' constitutive rules. Using New Zealand as an example, the article shows how the British modified the structure of the land market over the 19th century, sometimes intentionally and sometimes inadvertently, to transfer wealth from the Maori to themselves.