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.

In a previous essay I sought to make a distinction, not an original one, between two processes of dispute settlement: adjudication, and negotiations (Gulliver, 1969: 17). This was not intended as an absolute distinction, for clearly there are certain features common to both. But I was emphasizing what seems to be a key factor: the existence or absence of a third-party adjudicator. Whilst recognizing that this distinction is not acceptable to some scholars in the sociology of law, and that some would not wish to give such importance to that key factor and to other associated processual characteristics, it is nevertheless worthwhile to examine further the processes of negotiation. There are at least two reasons for this. First, anthropologists have given rather little attention to the description and analysis of negotiations in the variety of societies and cultures which is their concern. Secondly, processes of negotiations occur in all societies, including of course our own Western ones, and I believe that there are common patterns to them, cross-culturally, which merit attention.

The concept of “reflexive law” contains two mutually contradictory elements: a doctrine of legal restraint and the notion that restraint can be achieved by procedural rather than substantive regulation. This critique argues that new procedures have historically not replaced substantive regulation but instead have repeatedly introduced more substantive and more formal regulations. Teubner's thesis that “reflexive law” manifests an “evolutionary tendency” is refuted, just as is the claim that his thesis could be inferred from sociological theories such as those of Luhmann or Habermas. As is so often the case in legal theory, “evolutionism” is used as a mask for the legitimation of presumably “progressive” legal ideas.

Accounts of mass atrocities habitually focus on one kind of violence and its archetypal victim, inviting uncritical, ungendered misconceptions: for example, rape only impacts women; genocide is only about dead, battle-aged men. We approach collective violence as multiple, intersecting forms of victimization, targeted and experienced through differential social identities, and translated throughout communities. Through mixed-method analyses of Darfuri refugees' testimonies, we show (a) gendered causes and collective effects of selective killing, sexual violence, and anti-livelihood crimes, (b) how they cause displacement, (c) that they can be genocidal and empirically distinct from nongenocidal forms, (d) how the process of genocidal social destruction can work, and (e) how it does work in Darfur. Darfuris are victimized through gender roles, yielding a gendered meaning-making process that communicates socially destructive messages through crimes that selectively target other genders. The collective result is displacement and destruction of Darfuris' ways of life: genocide.

Through an ethnography of a terrorism trial that followed bomb-blasts in Delhi in 2008, this article seeks to understand the centrality of files and documentary practices to the production of legal truth. By following key documents regarding the case against one man I call Fahad, I argue that the truth produced in a trial crucially depends a chain of seemingly insignificant certificatory practices-the signatures, countersignatures, stamps, and seals that appear on documents. What emerges in the account I provide is that juridical truth is less a matter of finding ‘what really happened,’ and more about the competition between narratives that depend on the certificatory correctness of humble sheets of paper.

The Supreme Court's decision in Plessy v. Ferguson (1896) is infamous for its doctrine of “separate but equal,” which gave constitutional legitimacy to Jim Crow segregation laws. What is less-known about the case is that the appellant Homer Plessy was, by all appearances, a white man. In the language of the Court, his “one-eighth African blood” was “not discernible in him.” This article analyzes Plessy as a story of racial “passing.” The existence of growing interracial populations in the nineteenth century created difficulties for legislation designed to enforce the separation of the races. Courts were increasingly called upon to determine the racial identity of particular individuals. Seen as a judicial response to racial ambiguity, Plessy demonstrates the law's role not only in the treatment of racial groups, but also in the construction and maintenance of racial categories.

Prior research illustrates how race-class subjugated communities are over-policed and under-protected, producing high rates of victimization by other community members and the police. Yet few studies explore how gender and race structure dual frustration, despite a long line of Black feminist scholarship on the interpersonal, gender-based, and state violence Black and other women of color face. Drawing on interviews with 53 women in Minneapolis from 2017 to 2019, we examine how gendered racial vulnerability to both crime and criminalization shape dual frustration toward the law. Findings illustrate that police fail to protect women of color from neighborhood and gender-based violence, while simultaneously targeting them and their families. Despite their spatial proximity to women of color, white women remained largely shielded from the dual frustration of crime and criminalization. Attention to the gendered racial dimensions of dual frustration offers an intersectional framework for understanding women's vulnerability to violence and cultural orientations toward the law.

As I was preparing my remarks for today, I thought about other LSA Presidential Addresses that had resonated with me, from Felice Levine's (1990) description of Lily Tomlin's “Trudy,” and the “goose bumps” that she (Felice) got from sociolegal studies, to Frank Munger's (2001) appeal to law and society scholars to do engaged research.

I realized that two themes I care passionately about were implicit in several of those previous talks, and that's why I had found them so compelling. They are the importance of asking the big questions (those that give us goose bumps), and the urgent need for a commitment to engaged research. I will argue today that there are in fact close links between these two themes. And, I will suggest that making these links explicit may help us address some of the dilemmas attached to the role of the engaged intellectual.

Stuart Scheingold, Toska Olson, and Jana Pershing (1994) draw from interviews with 15 people, including 5 leaders of victim advocacy organizations and 7 members of the state legislature, to show how a punitive ethos played itself out in legislation to control sexual violence. The lesson learned from Washington State's Community Protection Act (CPA) of 1989 is that members of victim advocacy organizations and grassroots social movements may practice a conservative law-and-order politics toward crime and justice. Scheingold et al. place their study within the terms of a debate, which they say has two sides. On one side are “republican and some feminist criminologists,” who “are sympathetic to victim advocacy because they see victims as natural spokespersons for republican/feminist values and policies” (p. 730). The other side contains liberals of various types, “including civil libertarians, just desert theorists, and others not readily identifiable with any general theory” (p. 734), “who see victim advocacy and/or republican criminology as a threat to the integrity of the criminal process” (p. 730). The authors conclude that while the Washington State victim advocates were both active players and pawns of politicians, “the net effect of victim advocacy is … substantially problematic for republican/feminist values and for sound crime control policy as well” (p. 731).

Despite the widespread perception that lawyers exercise considerable influence over national policy making in the United States, their participation in the process has previously received little systematic empirical analysis. Based on a variety of evidence gathered in interviews with more than eight hundred Washington representatives, including data on their work, careers, contacts with government agencies, networks of acquaintance, and relationships with clients, we argue that lawyers are not as prevalent, active, or influential in national policy making as the popular image suggests. Rather, the findings indicate that lawyers occupy a relatively specialized niche in the system of interest representation, one that allows them to command substantial economic rewards and to maintain a measure of independence and autonomy in their work, but that limits their influence in policy formation.

Scholars have argued that economic efficiency requires a clear definition of the rights of ownership, contract, and transfer of land. Ambiguity in the definition or enforcement of any of these rights leads to an increase in transaction costs in the exchange and transfer of land as well as a residual uncertainty after any land contract. In Kenya, government efforts at establishing clearly defined property rights and adjudication mechanisms have been plagued by the existence of alternative processes for the adjudication of disputes. Customary dispute resolution has been praised as an inexpensive alternative to official judicial processes in a legally pluralistic environment. However, our research demonstrates that customary processes may also carry a monetary cost that puts them beyond the means of many citizens. This article compares the costs and processes of the formal and informal methods of property rights adjudication for women in the Kisii region of Kenya. The research results suggest that women have weak property rights overall, they have limited access to formal dispute resolution systems because of costs involved, and even the informal systems of conflict resolution are beyond the means of many citizens.

During plea negotiations, attorneys use stories to tell what happened when a defendant was charged with an offense. This paper is concerned with how attorneys tell stories, and includes a consideration of narrative structure and how components of this structure are used in plea negotiations. Components of narrative include: (1) a story entry device; (2) the story itself which may contain a backgrounding segment, action report, and reaction report; and (3) a defense segment in which an attorney denies or explains the defendant's behavior. Systematic employment of these components results in four patterns of negotiations: (1) routine processing, (2) assessing character; (3) disputing facts, and (4) arguing subjectivity. Narrative structure is part of the interaction order of negotiations and is a mechanism through which participants assemble features of a case and aspects of the courtroom setting. Narrators reflexively become part of the stories they tell, which provides a structural motivation for them to perform well during negotiations.

War landscapes have a particular sociology; they are also formed through distinct legal technologies. By examining the genealogy of trees as totemic displacements in the occupied West Bank I demonstrate how the Israeli/Palestinian war is deflected onto the landscape and how this deflection erodes the boundary between law and war. Dealing with issues of colonization, nationalization, and the way that these implicate landscape as a “natural alibi,” the article examines the intricate making of politics into nature. Further, it explores the ironic nesting of colonial processes from Ottoman, to British, to Zionist, and finally to the new Jewish settler society that seeks to unsettle the old colonial landscapes of this place. Utilizing a detailed interpretation of a range of interviews and participatory observations, the article unpacks the mutually constitutive relationship between law, technologies of seeing, and landscape, illustrating how this relationship is played out by various actors in the occupied West Bank.

Media coverage of litigation may affect perceptions and thereby behavior of litigants, judges, juries, legislators and business decisionmakers. Their behavior influences various legal, social, political and economic outcomes. For product liability verdicts during 1983 to 1996 involving automobile manufacturers, we examine the amount of coverage in several dozen newspapers. We find almost no articles reporting on any of 259 verdicts for the defendant. Econometric analysis focuses on determinants of the amount of coverage of 92 verdicts for plaintiffs, 16 of which include punitive damages. Key determinants include the award amount, the nature of injuries, the vehicle's recall history, and especially the existence of a punitive component of damages regardless of its size.

An interesting irony of human rights is that the nation-states that are most susceptible to claims of human rights abuses may not be the most repressive nation-states. Pursuing this modern paradox, the purpose of this research is to determine the factors affecting the number of human rights claims brought by citizens in the international arena. We base our theory on an extension of theories of state strength and test it using a pooled time-series analysis of petitions filed with the European Commission on Human Rights between 1976 and 1993. We find that polity strength, measured through government openness to political minorities and participation in nongovernmental organizations, is positively linked to claims-making. In contrast, a state's tendency to act internationally, represented through participation in international governmental organizations, had a negative effect on the number of claims to the European Commission on Human Rights. Although levels of human rights abuse were positively associated with claims, other factors relating to political organization were equally or more important.

Italy's Supreme Court recently overturned a rape conviction on the grounds that the woman was wearing blue jeans at the time. The Court reasoned that blue jeans cannot be removed “without the active cooperation of the person who is wearing them,” and therefore sexual intercourse must have been consensual. The decision was met with outrage by media commentators, political leaders, and ordinary Italians in a range of civic organizations. I argue here that this case and others like it are conspicuously inconsistent with a constitutive perspective that sees law and everyday normative orders as mutually embedded, or at least reciprocally reinforcing, and that focuses on law's hegemonic potential. In this revisiting of the constitutive approach, I propose that the concept of legal hegemony be elaborated to include the counterintuitive possibility that law can sabotage the very ideologies it invokes. For when an authoritative source such as law is so out of step with the evolving normative order, the shocking discrepancy exposes not only the fallibility of law but also the foolishness of the outdated moral vision it is caught endorsing. Finally, I suggest that it may be during “unsettled cultural periods” (Swidler 1986) that such “de-constitutive” moments are most likely.

A description and analysis of the Columbus (Ohio) Municipal Court is presented in the context of comparison with Malcolm Feeley's recent study of the New Haven lower court. The findings suggest that the Columbus court is much more severe in the sanctions imposed upon convicted defendants. These differences are attributed, in part, to contrasting local political cultures whose influence upon courts is mediated by police department orientations, police-prosecutor relationships, and methods of judicial assignment.

Recent data on lawyer participation in pro bono have suggested that such work flows from the intrinsic value one derives from volunteering as well as from workplace characteristics of those who provide pro bono service. This finding would imply that pro bono emerges not merely from individual personality traits but that the workplace environment structures motives and incentives for pro bono work. Such a finding points to a need to disentangle the effects of diverse workplace settings on the construction of different vocabularies of motive for engaging in pro bono work. In this article I employ an institutional framework to examine the impact of the workplace environment on participation in pro bono work among lawyers. Survey data were collected from 474 lawyers who graduated from three law schools that have mandatory pro bono requirements. Results indicate that lawyers' meanings of pro bono as well as their motivations for doing such work and the benefits they attribute to such work vary across workplace settings. These results are discussed in relation to institutional theory.

The well-known gap between law on the books and law in action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio-historical analyses of punishment. Recent research, however, has challenged the significance of apparently large-scale penal change of this kind. This article clarifies the significance of penal technologies' rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment's templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment's legal templates in their constitutive power—their ability, over the long term, to shape cognitive-cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.