One striking feature of American courts is the widespread practice of plea bargaining. Paradoxically, the practice rewards precisely those who appear guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American republic. Amid social conflict wrought by industrialization, immigration, and urbanization during the Age of Jackson, politicians acutely realized the potential for revolution in Europe. Local political institutions being spare and fragmentary, the courts stepped forward as agents of the state to promote social order necessary for healthy market functioning, personal security, and economic growth. Plea bargaining arose during the 1830s and 1840s as part of a process of political stabilization and an effort to legitimate institutions of self-rule—accomplishments that were vital to Whig efforts to reconsolidate the political power of Boston's social and economic elite. To this end, the tradition of episodic leniency from British common law was recrafted into a new cultural form—plea bargaining—that drew conflicts into courts while maintaining elite discretion over sentencing policy.

Empirical research demonstrates that jurors have difficulty understanding and following traditional instructions about the law. The social science literature recommends several procedural reforms, including giving important instructions at the start of the trial and providing jurors with written instructions. This article examines changes in the law following the publication of this social science research, comparing courts, legislatures and rule-making commissions. Analysis reveals that although all three institutions are dominated by lawyers, they have acted differently. Commissions have made substantial changes in the law consistent with the recommendations of social scientists, legislatures have made few changes, and courts have changed case law in the opposite direction, suggesting support for a theory of institutional context.

This paper examines the role of the audience in the process that transformed executions from public spectacles to hidden rituals, and makes visible the ambiguities and uncertainties that accompanied the transportation of capital punishment from its monarchical origins to a modern democratic setting. From this vantage point, the evolving responses to concerns associated with the execution audience share many characteristics with efforts to control other problematic audiences. And yet, the particular forms that audience manipulation in the context of executions took cannot be fully understood without considering the occasion that brought the audience into being. Viewed as a mirror held up to the execution, the audience, whether conceptualized as a rowdy crowd or a solemn group of witnesses, emerges as a constitutive element of the execution and, in this sense, carries the potential to grant, or deny, legitimacy to the event and, by extension, capital punishment itself.

Informal methods for dealing with conflict within both Japanese and Amish society have been interpreted as being the natural result of, and an important source of support for, traditional cultures. On closer examination we find similar patterns of intentional manipulation of informalist ideology as elements of strategy in the midst of conflict. In both cases, we find informalist ideology being selectively invoked to provide legitimacy to one or more partisan sides in ways which disguise such maneuvers from the majority of their constituent populations. Successful promotion of this ideology sustains the notion, both at the popular level and heretofore among scholars of dispute processing, that nonlaw methods for dealing with conflict have some special ingredient which makes them functionally superior to legalistic methods. If the Japanese and the Amish are in any way representative of a more general case, it apparently takes hard work to preserve anti-legal methods of dispute management.

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.

This article examines gender and property in Guadalajara, Mexico, in the light of debates that oppose formal title to the social embeddedness of rights in customary law and assert that titling is bad for women. The article focuses on urban homes, private property, and civil law but finds that qualities regarded as characterizing customary property relations also shape popular understandings of property in urban Mexico. Discussion groups and social surveys in four low-income neighborhoods addressed two aspects of family law and property: whose name should appear on titles, and who should inherit the home. The results show that women, as wives, sisters, and daughters, have a secondary relationship to property. They also suggest that the opposition of individual title to socially embedded rights is a false dichotomy and that generalizing arguments about formalization and especially the negative gender implications of titling risks replicating the universalizing tendencies of Western property models.

The confirmation votes on the fourteen most controversial Supreme Court nominees of the twentieth century were analyzed. The data supported the conclusion that Senate opposition to Supreme Court nominees is due primarily to a predicted dissatisfaction with the policy-relevant voting of the nominee after confirmation. The policy position of senators supporting confirmation was found to be significantly different from the policy position of senators opposing confirmation even after controls were introduced for the political party and ethical standards position of senators.

This article reviews arguments about limitations on judicial competence or capacity, focusing on the need to go beyond such arguments to understand courts and their problems. Theoretical limitations on the competence and capacity of courts are compared with the record of judicial performance. The study examines performance in three areas in which courts are most likely to be thought ineffective: (1) cases involving unrepresented defendants, such as debtors or tenants; (2) disputes among persons with intimate or ongoing relationships; (3) extended impact cases. It is shown that courts adapt to changing circumstances and perform quite well, even with these difficult types of cases. Reforms are still needed, but rather than focusing narrowly on the courts, they should be directed at a wider range of social goals, such as strengthening family and community institutions which have been diminished by increasing urbanization and industrialization.

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments and increased the extent of nontribal law enforcement in selected parts of Indian country. Where enacted, the law fundamentally altered the preexisting legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socioeconomic outcomes. The law's controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law's endogenous nature. We examine the law's impact on crime and on economic development in U.S. counties with significant American-Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law's politico-historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law's adverse impact is robust and noteworthy in magnitude.

The political ideologies, identifications, affiliations, participation, contribution to campaign funds, government employment, seeking and holding office, and other aspects of the political behavior of incumbents of various occupations, professions and strata have been investigated. There are also some discussions of the political power of professions, almost exclusively concerned with the legal and medical groups. But the study of professional associations as political pressure groups and their impact on the formulation and administration of the law has been relatively neglected. Professions are prominent among the many pressure groups actively pressing claims upon and through government, attempting to have a part in shaping any public policy that affects their interest. There is ample suggestion in the literature that major portions of their efforts are directed toward the state licensure and practice laws.

Recent sociolegal scholarship has explored the role of emotions in lawmaking and policymaking on security and crime issues. This article extends this approach to the relationship between law enforcement and affect by addressing the role of policing and security agencies in the (re)production of long-term emotions, which bind a collective and fuel ethnonational division. An ethnography of the distinct emotional climate within the Arab districts of Lod, an Israeli city, shows that this climate is structured by two emotions: rampant distrust toward friends and neighbors, and intense fear of the Israeli authorities. This emotional climate is the product of the subterranean ties of Lod Palestinians with the Israeli security agencies as well as their experiences of the blurred line between state security and crime control enforcement. I embed the initial creation and relative stability of this emotional climate in the broader relationship between the Israeli state and its Palestinian citizens from 1948 to the present. The article concludes with a discussion of how the law enforcement's affective production has consequences for the salience and scope of citizenship and by arguing for a greater focus on the link between law enforcement, collective emotions, and processes of inclusion and exclusion.

I explore the work of secretaries and lawyers at one of the most innovative providers of personal legal services in the last 20 years—franchise law firms. I show how the organization of work and the nature of the legal work at two firms has led to the transformation of lawyers into salespeople for mass-produced legal services. While clients may benefit from the convenience of franchise law firms, the attorneys employed by these firms are frustrated by limitations placed on their professional judgments and skills.

Models of the jury selection process in a Federal District Court are developed from court records, legal standards, and other information and then compared to determine sources of bias. The jury selection plan developed by the court has been operationally reformulated using 1970 census data to identify bias resulting from even a fair application of the plan. This normative model is also used to test for biases in the procedures and the results of the 1970 plan implementation in Eastern Massachusetts based on voter registration lists. Findings support the hypothesis that the juror selection process effectively discriminates against the poor, the young, racial minorities, women, and persons with low and high educational attainment. Sources of bias are found in the use of outdated voter registration lists, unreturned jury qualification questionnaires, and the excuse process. Recommendations are given for ways to reduce the extent of this bias.

Our article provides an in-depth analysis of the framing processes and outcomes associated with a petition submitted by Inuit communities in the arctic on the human rights violations caused by climate change before the Inter-American Commission of Human Rights in 2005. Drawing on semi-structured interviews conducted in two different Inuit communities in Canada that have ties to the petition and with lawyers and activists in the transnational climate justice movement, we process-trace the role that the petition has played in promoting discursive and collective action frames related to the recognition of the “right to be cold.” We argue that the Inuit petition articulated a novel “climate rights” frame through an innovative combination of legal argumentation, scientific research, and the oral testimony of Inuit communities concerning the ways in which climate impacts were affecting their human rights and traditional practices. Our findings reveal that the resonance of this frame has varied significantly among different actors, influencing the ideas and strategies of climate activists and lawyers around the world, but having limited resonance among policymakers in the United States or Canada or among Inuit communities themselves. Our research thus speaks to the complex challenges and ethical responsibilities that must be addressed in initiatives that seek to draw on international human rights law to influence policy decisions and empower Indigenous communities in the context of climate change.

One of the most significant recent developments in the study of crime and justice is the emergence of theoretical explanations for the dramatic changes in criminal justice policy over the past few decades. These theoretical accounts address not only highly visible developments, such as the meteoric rise in incarceration rates, but also less-conspicuous shifts in due process and civil liberties, and they do so by attributing more-repressive policies to the emergence of a political culture that has substantially redefined crime and justice. This article focuses on an important due process issue, the legal representation of indigent defendants in criminal courts. We describe the state of indigent defense policy, particularly structure and funding, across the states in 2002, and analyze variation on two dimensions where states may exercise discretion: the extent to which states assume responsibility for funding services (rather than relying on local governments), and the generosity with which these programs are funded overall. We test hypotheses that link funding for services with the ideology of state political leadership, public values about tolerance and race relations, and states' public welfare policy climates. We find little support for the prediction that a welfare climate shapes more progressive indigent defense policies. However, the results suggest that the racial threat hypothesis helps account for spending on indigent defense, and that Republican control of the statehouse results in the perpetuation of local responsibility for program funding. Normative literature on indigent defense suggests that the patterns we observe may have important consequences for the quality of indigent defense services across states. Further, the findings reported here suggest that the politics of the punitive turn, as it has played out across the states, may be responsible not only for shifts in crime control policy, but for due process policy as well.

The paper identifies five presumptions of dispute theorizing: universality, ideological functionalism, settlement by courts, qualitative identity of the parties, and comparability. It is argued that these presumptions derive from or are related to the methodology of dispute theorizing, which is idealist either in the form of abstracted empiricism or logical deduction. Reasons for the sudden upsurge in dispute theorizing are discussed. Concluding, the authors evaluate attempts by dispute theorists to break away from the presumptions identified, and indicate some empirically limited but theoretically useful possibilities for futher work.

Scholarly and media accounts have portrayed the Reagan administration as strongly committed to the selection of judges who are ideologically in tune with the president. Interviews with key congressional participants indicate that Reagan has received substantial home-state support for his ideological selection criteria. These findings lead to the prediction that Reagan judges on the lower federal courts will be substantially less supportive of criminal defendants than will Nixon or Carter appointees. Analysis of each appointment cohort's criminal justice decisions confirms this expectation for the district courts and courts of appeals. Indeed, the degree of polarization between the Reagan and Carter cohorts is unprecedented. However, this difference was due to the unexpectedly high support for criminal defendants exhibited by Carter appointees as well as the predicted low support provided by Reagan judges.

Immigration detention is formally not a punishment, but governments do use it to deter illegal residence. This study examines whether and how immigration detention affects detainees’ decision-making processes regarding departure, thereby possibly resulting in de facto “specific deterrence.” Semistructured face-to-face interviews were conducted in the Netherlands with 81 immigration detainees, and their case files were examined. Evidence is found for a limited, selective deterrence effect at the level of detainee's attitudes: most respondents considered immigration detention a painful and distressing experience, but only a minority—mostly labor migrants without family ties in the Netherlands—developed a preference to return to their country of citizenship in hopes of ending their exposure, including repeated exposure, to the detention. In line with defiance theory, we find that eventual deterrent effects mostly occurred among detainees who also attributed some measure of legitimacy to their detention. Among some detainees, the detention experience resulted in a preference to migrate to a neighboring European country.

This article analyzes the Philippine system of compulsory conciliation both in terms of its significance in the context of the political system as a whole and in terms of its operation at the village level. I argue that the mediation structures established by national law are part of a pattern in which the Philippine state is incorporating within it the various sectors of civil society, but that the cooptation of the customary method of dispute processing is not meeting resistance from the rural Filipino. This analysis supports the more general argument that systems of informal justice operate to enhance centralized political authority, yet it reveals the dialectical nature of such arrangements for dispute processing.