This paper, using mostly data drawn from a study of the criminal work of the Superior Court of Alameda County, California, from 1880 on, explores the history of plea bargaining. Plea bargaining, it turns out, was used in Alameda County from at least 1880, though it was by no means as common in the late 19th century as it is today. There is also ample evidence of “implicit plea bargaining,” that is, pleading guilty in expectation of a lighter sentence. The data from this study suggest that plea bargaining cannot be explained simply as a reaction to crowded court conditions. It is connected with structural and social changes in criminal justice, in particular, the rise of professional police and prosecutors.

Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face-off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so-called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.

The police have taken a suspect into custody and booked him. After the arrest, what next? At first glance, this rather simple question seems to imply an equally simple answer - the arrestee will be formally charged with a crime. Inattention to post-arrest proceedings has reinforced the assumption that judicial proceedings follow an arrest. But being booked in the police station is not the same as being charged in court. Despite the swelling of interest in the police and their use of the arrest power, there has been relatively little interest in or concern with what happens to the suspect after the arrest.

Russian firms are drowning in debt. Managers are increasingly turning to the courts for help. Drawing on a database of 100 non-payments cases decided by three courts in 2000, the article explores the parameters of this litigation and the motivations for filing lawsuits. The analysis shows that the docket is dominated by small-scale disputes between trading partners with short shared histories, suggesting that those who have long-term, trust-based relationships avoid the courts. Along with fear of disrupting ongoing relationships, the disinclination to use the courts is also motivated by a reluctance to open up transactions to state scrutiny. By contrast, the petty disputes that are brought to court tend to be simple and, therefore, managers are willing to risk exposure to the state. Indeed, in a world in which firms manipulate their financial records to create the impression of no income in order to avoid taxes (often putting bogus debts on the books), some of these managers bring cases even when there is little chance of recovering the debt because the decision provides convincing evidence to the tax authorities that the debt is bona fide.

The strongest critics of plea bargaining argue that the practice should be abolished because it coerces defendants to give up their right to trial and because it results in irrational sentences for criminal defendants. Neither charge is applicable to a system of plea negotiations that meets four basic criteria: (1) the defendant always has the alternative of a jury trial at which both verdict and sentence are determined solely on the merits; (2) the defendant is represented throughout negotiations by competent counsel; (3) both defense and prosecution have equal access to relevant evidence; and (4) both possess sufficient resources to take a case to trial. The most fruitful direction of reform is to seek to achieve these conditions rather than attempt to eliminate plea bargaining.

Since its introduction, Black's (1976) theory of law has generated controversy (e.g., Eder, 1977; Stinchcombe, 1977), but few empirical evaluations. The most recent test (Gottfredson and Hindelang, 1979a) identified a number of empirical inadequacies and posited an alternative model to correct them. This paper assesses both Black's and Gottfredson-Hindelang's models of law, choosing as the arena of evaluation criminal law and its behavior. Analysis of data from a sample of criminal defendants identifies empirical inadequacies in both theories and raises questions about their validity, predictive power, and generality. The paper concludes with a discussion of the implications of these findings for the substance and underlying assumptions of both theories of law.

This article focuses on the emergence of sociolegal studies over the past twenty-five years through an analysis of the development of the Law and Society Association. The paper takes the view that this scholarly field is best understood from a broad-based, multidisciplinary perspective that includes, but does not privilege, legal scholarship. Also, the article argues that sociolegal studies has been pluralistic, self-reflective, and dynamic since its inception and that current critiques must be examined in light of this past. Three areas of contemporary concern—the centrality of law; the impact of policy, politics, and reform motives; and the nature of science—are assessed in terms of sociolegal studies specifically and social science inquiry more generally. Opportunities for growth and change are considered.

Courts, unlike most other political institutions, depend almost exclusively on the actions of others to initiate proceedings which comprise their agendas of decision-making. Formal rules and custom proscribe the independent searching out of cases by American courts. These courts may, in a sense, invite litigation by the way they handle certain kinds of issues, but they must await the development of real “cases and controversies;” and, more importantly, they must await private choices which may or may not bring these cases and controversies to court. Recent years have brought some recognition of the importance of such private choice-making activity in setting the boundaries of the policy-making roles which the courts can play. As Donald Black (1973:126) argues, “[t]he day to day entry of cases into any legal system cannot be taken for granted. Cases of alleged illegality and disputes do not move automatically to legal agencies for disposition and settlement.”

In 1974, Marc Galanter published a paper entitled “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” in which he analyzed the limits of a legal system, such as that of the United States, to achieve redistributive outcomes. He traced the limits to features of the U.S. legal system's “basic architecture.” The specific features to which he referred were a series of structural dualisms or institutional contradictions that permitted symbolic claims to universalism, public authority, and equality to coexist with particularism, private power, and inequality.

Why do authoritarian rulers establish special courts? One view is that they do so to insulate the judiciary from politically oriented cases and allow it continued, albeit limited, independence. In this article I present a contrary case study of an authoritarian regime in Burma that used special courts not to insulate the judiciary but to defeat it. Through comparison to other Asian cases I suggest that the Burmese regime's composition and character better explain its strategy than does extant judicial authority or formal ideology. The regime consisted of war fighters for whom the courts were enemy territory. But absent popular support, the regime's leaders could not embark immediately on a radical project for legal change that might compromise their hold on power. Consequently, they used special courts and other strategies to defeat judicial independence incrementally, until they could displace the professional judiciary and bring the courts fully under executive control.

The movement for removal of criminal penalties for possession of marihuana in the United States provides an important case study of the causes and process of decriminalization. Between 1973 and 1978, 11 states reduced criminal penalties for possession of small amounts of the drug, but the reform movement was fragile, brief, and limited to a few states. This case study suggests that reform was driven in part by “moral dissonance” resulting from the arrest of high-status offenders. Although public opinion has always been deeply divided on decriminalization of marihuana possession, a narrow “policy window” was created in the 1970s by the expressed concern of political leaders about the effect of arrest on high-status youths and the support of law enforcement agencies interested in efficient use of limited resources. Even after the window for reform closed at the end of the 1970s with a shift in national leadership, deep moral ambivalence renders criminalization symbolic and police place a low priority on marihuana arrests.

Recent scholarship on penality describes profound changes in the ideology, discourses, and policies shaping criminal punishment in the late-twentieth-century United States. To assess the implications of these changes for those subject to criminal punishment, we examine the experiences of women in prison at two key points in the recent history of penality. We compare how imprisonment was practiced and responded to at the California Institution for Women in the early 1960s, when the rehabilitative model dominated official penal discourse, and in the mid-1990s, near the height of the “get tough” era. We find that the ways in which women related and responded to other prisoners, to staff, and to the prison regime, while in some ways specific to one or the other penal era, did not fundamentally change. Thus, penal regimes ostensibly informed by profoundly different rationalities nevertheless structured the daily lives of prisoners through a very similar set of deprivations, restrictions, and assumptions.

The pivotal case in the history of the plea of insanity occurred in London during the reign of George III. In the year 1800, James Hadfield discharged a horse pistol at the king as he entered the royal box at Drury Lane Theatre. Hadfield pleaded insanity to a charge of high treason and was acquitted. The verdict caused much judicial concern, for the law's power over him was at best unclear. Hadfield was taken to Newgate Prison while Parliament hastily passed the Criminal Lunatics Act of 1800, which enabled the government to detain Hadfield for the rest of his life. No longer was a defendant found not guilty on the grounds of insanity entitled to a general acquittal. Insanity became a special verdict linked with automatic confinement for an indefinite period of time. Three other provisions of the act called for the detention of mentally ill persons who were arrested for criminal offenses or found in circumstances that suggested criminal activity.

State-society differentiation and political centralization interact to influence the amount, focus, and effect of legal activity. Using case studies of anti-nuclear power litigation in the 1970s in the United States, West Germany, France, and Sweden, this article develops a general theory of political systems and legal activity. While the United States, West Germany, and France all had considerable amounts of antinuclear litigation, in France and Germany such litigation was directed almost exclusively at the state. In the United States, the targets of antinuclear litigation were much more diffuse. Centralized Sweden with its corporatist political system had significantly less antinuclear legal activity than the other three countries, which were roughly comparable. Germany was the only country in which the state took an active role in shaping the content of legal cases, and it was the only country where litigation became a critical factor in modifying national policy. Through these case studies, this article explores how contextual factors such as the political frames of nation-states, which exist apart from individual litigiousness and even apart from legal systems themselves may create particular cross-cultural variations in patterns of legal activity.

Ever since coming under colonial rule, Africans in South Africa have operated informal courts which the state courts have not recognized. Using fieldwork data, we contrast two such nonstate judicial structures in Cape Town. We describe the street committees, constituted by the older generation as a subsidiary form of local government coexisting uncomfortably alongside formal apartheid authorities. We then show the explosive consequences of the development from 1985 of youth-run people's courts, which attempted to redefine community values. We conclude with a discussion of our findings in the context of existing theoretical work on informal justice and draw some tentative conclusions on possible developments in a post-apartheid era.

Since the 1990s, the number of women in Chinese courts has been increasing steadily. Many women judges have risen to mid-level leadership positions, such as division chiefs and vice-chiefs, in the judicial bureaucracy. However, it remains difficult for women to be promoted to high-level leadership positions, such as vice-presidents and presidents. What explains the stratified patterns of career mobility for women in Chinese courts? In this article, we argue that two social processes are at work in shaping the structural patterns of gender inequality: dual-track promotion and reverse attrition. Dual-track promotion is dominated by a masculine and corrupt judicial culture on the political track that prevents women from obtaining high-level promotions, but still allows them to rise to mid-level leadership positions on the professional track based on their expertise and work performance. Reverse attrition enables women to take vacant mid-level positions left by men who exit the judiciary to pursue other careers. Taken together, the vertical and horizontal mobility of judges in their career development presents a processual logic to gender inequality and shapes women's structural positions in Chinese courts, a phenomenon that we term the “elastic ceiling.”

We often ask why the Japanese are nonlitigious and look into the unique culture that may explain it. It is more appropriate to ask why Japan has maintained a complex industrialized society without much reliance on law. For the nonlitigious society does not come about spontaneously. Instead, it was made possible only by careful management. I elaborate this process of management through the detailed analysis of automobile accident compensation disputes in Japan.

This essay introduces a conceptual and theoretical model for understanding how dispute resolution in the workplace contributes to gender differences in employment. We conceptualize workplace disputes as having three components: origins, processes, and outcomes. We synthesize theory and existing empirical findings in several disciplines to examine how these three components are patterned by gender roles, sex segregation in jobs, and institutionalized work structures. The essay illuminates workplace dispute resolution generally, demonstrates linkages to other aspects of gender inequality in employment, and provides a model for further research and policymaking.

What explains how and why the Supreme Court interprets precedent? We contend that Justices incorporate precedents into their opinions to maximize the extent to which the Court's legal policy reflects their own policy preferences and to increase the likelihood that their opinions will be efficacious. Thus, we expect the interpretation of precedent to be influenced by the Justices' policy preferences, the norm of stare decisis, and certain characteristics of precedents. To test this idea, we examined how, in all cases decided in the 1991 and 1995 terms, the Court's majority opinions chose to legally interpret the set of available Supreme Court precedents. While our results are not uniformly supportive of our hypotheses, they lend general support to our theoretical argument. First, we demonstrate that the Court is more likely to positively interpret (rather than not interpret) a precedent that is ideologically proximate to the Court, that is legally relevant, or that was previously positively interpreted by the Court. When considering negative treatment broadly construed, our data only demonstrate that the legal relevance of a precedent exerts any influence. However, when we restrict our analysis to “strong” negative interpretation of precedent, we uncover reasonable support for the influence of stare decisis in that both the legal relevance of precedent and prior negative interpretation of precedent affect strong negative treatment. Thus, one implication of this study is that, contrary to the attitudinal model's prediction, the Court's prior treatment of precedent does appear to influence the way Justices make decisions.