Why do some states diversify their supreme courts sooner than others? Using original data on the first black and female state supreme court justices, I contend that political and institutional pressures influence when states diversify their high courts. The results suggest that selection systems, institutions affecting turnover, and the appointment of political minorities to the United States Supreme Court are associated with states seating their first black and female justices. The findings have implications for our understanding of the political and institutional circumstances that promote judicial diversity.

This research, utilizing qualitative methodology with grounded theory, develops a model that illuminates a process by which judicial stereotyping associated with genetic essentialist biases toward mental disorders may affect judges' views regarding the sentencing and punishment of offenders with mental disorder diagnoses presented or understood to be genetically influenced. Data, collected through interviews with a sample of 59 Pennsylvania State Court judges, suggest that judges exhibit stereotyping behavior by linking the relationships between three particular genetic essentialist biases (immutability, informativeness, uniformity) and three types of stigmatization (pessimism, dangerousness, family stigma) associated with each bias. When judges exhibited this stereotyping behavior without the effects of intervening conditions, they then expressed how knowledge of the genetic influences of an offender's mental disorder would negatively influence views on punishment, specifically related to more restrictive sentences and support for deterrence and incapacitation. Three intervening conditions associated with judges' personal characteristics (personal experiences involving genetics, strength of determinism vs. free will beliefs, having no personal experiences with mental disorders) influenced whether judges' sentencing views were negatively influenced by such knowledge on genetics. Implications related to therapeutic jurisprudence are discussed.

Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.

Economism is seen as having a number of disadvantages compared with legalism as the preferred model for regulating hazardous industrial practices such as pollution. Economism forces public policy to react retrospectively to hazards when efforts could be made to prevent the hazard before it occurs. Economism engenders a moral relativism which weakens the moral force of law; it makes detection and deterrence more difficult than under legalism. The regulatory approaches of economism may involve reduced cost burdens on business but lesser predictability of those costs. Economism does not relieve business of the burdens of government inspections; it simply replaces technical inspectors with tax investigators because taxes on hazards can easily be evaded. Legalism, unlike economism, is not wedded to the assumption that business enterprises always behave rationally. In practical terms it is impossible to calculate economically optimal levels of taxes on social harm. Even if it were possible, the costs of making such calculations would be prohibitive. It is concluded that economistic strategies have quite limited, though important, roles in business regulation.

This article explores the connections between the interpretive and comparative dimensions of ideology by analyzing ethnographic data from an American town. The town is undergoing a rapid process of urbanization, and townspeople are absorbed in the analysis of the changes around them and their town's prospects as a community. The article compares interview data and courtroom observations in which local understandings are shown to be constituted in pervasive cultural distinctions: past and future, insiders and outsiders, harmony and conflict, gender, and various forms of family life shape local views of change and conflict. The conclusion relates an analysis of the symbolic terms in which these distinctions are expressed to general issues of the nature of ideologies and their truth claims.

What affects perceptions of hostile treatment by police, characterized by feelings such as humiliation and intimidation? Is it what the police do to the citizen, or is it about how they do it? The important effects of procedural justice are well documented in the policing literature. Yet, it is not clear how high-policing tactics, coupled with procedural justice, affect one's sense of hostile treatment: is it the case that what the police do does not matter as long as they follow the principles of procedural justice, or do some invasive or unpleasant tactics produce negative emotions regardless of the amount of procedural justice displayed by the officer? In the present study we examine this question in the context of security checks at Ben-Gurion Airport, Israel. Using a survey of 1,970 passengers, we find that the behavioral elements of procedural justice are an important antidote, mitigating the negative effects of four “extra” screening measures on the perceived hostility of the checks. At the same time, two security measures retain an independent and significant effect. We discuss the implications of our findings and hypothesize about the characteristics of policing practices that are less sensitive to procedural justice.

This article reports field research on Papua New Guinea's land courts, which decide property disputes in customary law. Customary law did not contemplate exchange of real property outside the kin group. Changing conditions have created an irresistible pressure for markets in land, which require extending law to encompass exchange with outsiders. The freehold solution is to give absolute, unitary ownership over land to individuals and end the kin group's role in resource allocation. Alternatively, the kin group can be reconstituted as a cooperative with ownership rights. If imposed by legislative fiat, either of these solutions will disrupt the customary economy by displacing its incentive system. A better solution allows custom to evolve and modernize itself through the common law process.

Can professional groups, such as lawyers, be incorporated within class analyses? Results from a Toronto survey indicate that lawyers can be usefully located within class categories operationalized in terms of power relations. The class structure of legal practice in Toronto is dominated by older, Anglo-Saxon Protestant males with degrees from Canada's elite law schools, who are practicing corporate and commercial law for predominantly corporate clients. Notwithstanding evidence of recently and substantially improved mobility prospects, we found an absence of Jewish lawyers from the capitalist class and a tendency for women to remain in a legal working class. We also discovered the emergence of a new working class in the legal profession that, perhaps unexpectedly, includes young associates in the corporate and commercial departments of large firms. The exploitation of this “professional proletariat” is as clear as are their relatively high salaries and promising prospects of sharing in the power relations that facilitate their domination and limited autonomy. We argue with qualitative data that it is the combination of high salaries, good mobility prospects, and a highly competitive environment that allows this group to be exploited with very little chance of rebellion. More generally, this kind of class analysis opens new possibilities in the comparative and historical study of lawyers and other professional groups.

This paper explores the judgmental process involved in the determination of liability in accident cases. The law of negligence, unlike other branches of the civil law and the criminal law, lacks a body of substantive rules by which a jury may determine the legality of conduct. The acts of one person which may result in property loss or physical injury to another are extremely varied. This variety makes it all but impossible to specify, in advance, what kind of behavior constitutes adequate caution or due care in given situations. Hence, the law has devised a general procedure by which to reach a judgment on this matter for any particular case. It directs the members of the jury to consider what precautions a person should take while engaged in some potentially hazardous endeavor in order to minimize the risk of possible harm to others, and offers a model of behavior “... the supposed conduct, under similar circumstances, of a hypothetical person, the reasonable man of ordinary prudence who represents a community ideal of reasonable behavior.”

This is an essay about public memory and about the ways in which the law selects and shapes our recollections of the past to fit the purposes of those who dominate the present.

I. THE PERSON

Leon Petrażycki (1861-1931), a legal theorist and sociologist, came from the Polish gentry of the Witebsk area, a territory historically Polish, but then—and now—a part of Russia. After preliminary studies as a medical student, he turned to the study of law at the universities in Kiev, St. Petersburg, Heidelberg, Berlin, Paris, and London. He received a master's degree in Roman Law from the University of Kiev and a doctorate in Law from the University of St. Petersburg. In 1897 Petrażycki became a professor at the University of St. Petersburg; he was quickly promoted to the rank of full professor and subsequently appointed Dean of the Faculty of Law—the first, in Russia, to be democratically elected to that position. He became a Member of the Russian Parliament (DUMA) and later spent some time in prison as a result of his political activities. During his twenty years in St. Petersburg, Petrażycki published several books on such subjects as political economy, private international law, civil law, psychology, and matters dealing with the relation between law, morals, and the state. Many of these books (written in Russian) were controversial and stimulated much discussion and response in Russia. A brief bibliography is contained in Appendix A.

Today, the TASER is a ubiquitous less-than-lethal force technology lauded for its ability to curb police officers' use of excessive and lethal force. Although less injurious than other weapons, concerns exist that the TASER can still be misused by police officers. This article uses ethnographic observations and unstructured interviews across three urban police departments to describe how the TASER affects officers' understanding and use of force in beneficial and unintended ways. I find that officers understand and use the TASER as a device that can enhance safety for themselves and suspects, including in cases where the TASER is used in lieu of lethal force that officers believe would have been justified. Despite these benefits, understanding of the TASER as a safety-enhancing technology also influences the use of excessive force via TASER by young, inexperienced officers, ultimately contributing to the very problem TASERs were intended to ameliorate.

The considerable literature on Eskimo law is replete with contradictory descriptions of matters such as the functions of leadership, the imposition of sanctions, the involvement of the community as a whole in juridical matters, and the presence or absence of specific methods of conflict resolution. Rather than accuse certain ethnographers of error, I would judge that all the well-known accounts are substantially accurate.

In 1993, the Cuban government significantly expanded the scope of legal self-employment on the island. The change has not been uncontroversial, and cuentapropistas have frequently been held up, both in Cuba and in the United States, as the symbol of Cuba's transition to a free-market economy. In framing cuentapropistas as the vanguards of capitalism, observers have adopted a concept of “transition” which is both rigidly ideological and teleological. This article argues that by employing a sociolegal approach toward cuentapropismo—examining close-up not only the Cuban government's regulation of self-employment, but also how the operation of law is mediated through cuentapropistas' own self-perceptions—we can develop a richer and more complex understanding of transitional periods. Rather than conceptualizing “transition” as a straight line from communism to capitalism, a sociolegal analysis draws attention to the complex relationship between law, identity, and work in the renegotiation of citizenship, and the constitutive role that evolving conceptions of citizenship may have for the shape and character of a transitional period.

How do differences in the implementation of regulation impact market behavior? I propose a theoretical framework to understand this impact as part of the process of embedding market participants through the institutionalization of legal consciousness within a field of action. I use this framework to understand the impact of the difference in the implementation of securities regulation in Ghana and Fiji. In Fiji, where the regulatory agency is more present and process-oriented, brokers operate with a greater orientation toward formal rules. In Ghana, where the regulatory agency is distant and auditing, brokers rely on explicit enforcement of floor-based norms. Conceiving of legal consciousness as an emergent feature of a field of social action advances the understanding of how legality is institutionalized, since the emergent structure shapes the orientations, behavior, and relations of actors within the field.

California's “three strikes and you're out” law is the most notorious example of the wave of mandatory sentencing policies that many states enacted beginning in the late 1970s. While advocates and critics predicted the law would have profound effects on aggregate punishment trends and individual case outcomes, Feeley and Kamin's analysis of previous sentencing reforms suggested the law's impact would be mainly symbolic because local officials would ignore, subvert, or nullify its major provisions. While aggregate analyses have tended to confirm this argument, so far there has been no systematic test of the law's effect on individual cases. This analysis uses multilevel models applied to case-level data from 12 urban California counties to test hypotheses about shifts in average punitiveness, the relative influence of legal and extralegal factors on sentencing, and the uncertainty of sentencing outcomes. Results mostly support Feeley and Kamin's symbolic interpretation, but also reveal important substantive impacts: since Three Strikes, sentences have become harsher, particularly in politically conservative counties, and black felons receive longer prison sentences.

No-fault divorce legislation fundamentally changed the formal legal requirements for divorce from grounds based on moral concerns to those showing that the marriage has broken down without attributing blame. The old laws, which required that the plaintiff be blameless and prove malfeasance by the spouse, would have greatly restricted the number of divorces if they had not been widely subverted through collusion and perjury. The no-fault legislation gives an opportunity to test whether the attempts to legislate morality had any impact on divorce rates. Many reformers and researchers have claimed that the fault provisions were so thoroughly subverted that their removal did not lead to more divorces. The present study explores the impact of no-fault laws in thirty-eight states by applying a time-series-cross-sectional design. When grouped into one variable the laws did increase divorces, but when individual laws are analyzed, only a minority, primarily in eastern states, evidence significant impacts. Finally, I argue that it is probably beyond the limits of feasible social science research to determine why some laws had impacts but others did not.

The business improvement district (BID) is a popular economic development and urban revitalization model in which local property and business owners must pay an assessment tax that funds supplementary services, including private security. BIDs constitute a controversial form of urban revitalization to some because they privatize economic development and public safety efforts in public space. This study examines whether BIDs provide tangible benefits beyond their immediate boundaries to local residents in the form of reduced violence among adolescents. The empirical analysis advances an existing literature dominated by evaluation studies by introducing a theoretically driven dataset with rich information on individual and neighborhood level variables. The analysis compares violent victimization among youths living in BID neighborhoods with those in similarly situated non-BID neighborhoods. We find no effect of BIDs on violence. However, we do find that youth violence is strongly correlated with neighborhood collective efficacy and family-related attributes of social control. In conclusion, we argue that BIDs may be an agent of crime reduction, but this benefit is likely concentrated only in their immediate boundaries and does not extend to youths living in surrounding neighborhoods.

Courts are supposed in common law countries to operate by adversary adjudication. Until a few years ago I, for one, thought that they did. Apart from radio, TV, and the movies, which reinforce this symbol with all their might, my only exposure to courts was as a juror in a case of the alleged theft of one used automobile battery. We deliberated long and found the defendant (who was surely guilty of something!) to be not guilty. I took for granted that my experience was an example of typical practice. It never occurred to me to reflect upon the size of the taxpayers' bill if there were to be a trial of this sort for every crime of this magnitude. Nor did I suspect that I could be witnessing an exception rather than the rule, the exception being a jury trial, since my only contact with a court was in the capacity of juror.

This paper focuses on the narrow question whether prosecutorial or judicial negotiation of a reduced charge or sentence for a criminal defendant in exchange for a guilty plea renders the plea “involuntary.” I begin by clarifying the conditions under which choices in general are considered voluntary or coerced. In Part II, I measure the practice of plea bargaining against this general theory of voluntary choice. I argue that a negotiated guilty plea is not intrinsically involuntary but that many of the conditions commonly a part of plea bargaining may render it so. The negotiated plea can be defended from the charge of coercion only if these conditions can be, and are, eliminated. I also show that overt “threats” of prosecutorial or judicial reprisal are not the only way of coercing a guilty plea. Under certain conditions, apparent “offers” of leniency can be coercive as well.