Whether federalism is more than a legal fiction is a question that generates considerable controversy among scholars in law and the social sciences. Historians of nineteenth-century American federalism have differed about the workings of the federal system in the era characterized as “dual federalism.” This article provides an analysis of these controversies and offers a theoretical position on the problem of real power under federalism. The historical literature, it is argued, provides legal scholars and social scientists with abundant data on the reach, diversity, and effects of governmental action in the different historical epochs of American federalism. The relationship of federalism in the United States to political freedom, governmental performance and efficiency, and the formation of public policy all receive attention.

Political and legal globalization brings into question how to best conceptualize legitimacy and authority in the context of a plurality of potential audiences with distinct standards for evaluating legitimacy. This article proposes legitimacy chains, or the articulation of justifications linked through competitive processes of social evaluation across distinct social fields, as a concept for theorizing supranational authority. The concept is developed through an analysis of World Trade Organization (WTO) disputes over zeroing, a method for calculating import dumping. The article focuses on how the legitimacy work of various interlocutors enabled compliance despite contested legal validity claims, ultimately enhancing the authority of the WTO as final arbiter of legitimate trade practices.

Hundreds of county jails detain immigrants facing removal proceedings, a civil process. In exchange, local jails receive per diem payments from Immigration and Customs Enforcement. Immigration detention thus presents a striking case of commodification of penal institutions for civil confinement purposes. Yet we know very little about the counties participating in this arrangement and the predictors of their participation over time. Our study offers the first systematic analysis of immigration detention in county jails using new and comprehensive panel data on jails across the United States. First, we find that the number of counties confining immigrant detainees steadily increased between 1983 and 2013, with the largest growth concentrated in small- to medium-sized, rural, and Republican counties located in the South. Second, our regression analyses point to a number of significant predictors of county participation in immigration detention: (a) worsening labor market conditions, combined with growing excess bed space for the criminal inmate population; (b) an increasing Latino population up to a certain threshold level; and (c) increasing Republican Party strength. These findings have important implications for current debates raging across the United States about the proper role of local communities in detaining immigrants.

In his recent book, Charles E. Silberman underscores the role of the law as an educating institution. “Since means shape ends, the kinds of legal procedures the society develops shape the goals and values and indeed the whole character and ethos of the society” (Silberman, 1970: 42). He convincingly argues that the attempts in recent years to provide legal services to the poor have necessitated radical changes in the conception of the lawyer's role. “For one thing, he becomes an educator in a much more specific way, since the first (and perhaps most important) part of his job may be to educate the poor to what their rights are” (Silberman, 1970:43). Yet it is not only the poor who have difficulty when it comes to understanding the laws of society, and many people have been confronted with situations in which they have, after the fact, discovered that what they have done was illegal. The My Lai trials may be simply an extreme case in point. In the defense of Lt. Calley, the lawyers in the case were expected to argue that the defendant did not know the difference between a legal and illegal order and such an argument was used successfully in the similar Diener case. Yet the old adage has it that “ignorance of the law is no excuse.” In many lesser situations citizens are unsure as to what their legal responsibilities are or what others legally have the right to do or not do.

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top-rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.

In the years since the U.S. Supreme Court handed down Brown v. Board of Education (1954), most discussions of the case have focused on whether it was effective in promoting lasting equality of opportunity in the public schools. Although this profoundly important question dominates retrospectives on Brown, another unresolved controversy relates to whether the ruling has altered in any fundamental way the role of social science evidence in constitutional litigation. More than 50 years later, substantial disagreement persists about whether this kind of research has played or should play any important role in the jurisprudence of race. Today, social scientists face increasing doubts about their neutrality and objectivity, struggle to be heard in a marketplace of ideas increasingly flooded with information of questionable quality, and encounter growing resistance to the notion that expertise provides a proper foundation for legal decisionmaking. For those who still believe that social science has a role to play in advancing racial justice, the strategy used in Brown can no longer be taken for granted. The time is ripe to reassess what counts as knowledge so that social science is not increasingly marginalized in courts of law.

Contemporary crisis in the idea and practice of corporate governance prompts a consideration of future resolution based on historical imperatives. We review periods of analogous crisis in corporate governance in the mid-1800s, 1930s, and 1960s to evaluate the catalyst, process, and outcome of paradigmatic change. Framing our analysis are the rulings made by the Court of Chancery of Delaware during those times of change. The Chancery Court's historical role as the legitimator of governance norms grounds our consideration of its recent opinions. Recent case law, we conclude, signifies the advent of a multifiduciary model of governance. Measurement of shareholders' reaction to dilution of their fiduciary status corroborates the state of crisis and underscores the normative code of the emergent multifiduciary governance model. We close by discussing the implications of the multifiduciary model for shareholders, executives, and society.

Social facts about a profession are usually treated by sociologists as dependent variables—phenomena to be explained (e.g., Carlin, 1962, 1966; Becker, et al., 1961). I propose to analyze the features of the legal profession in a society which uses such services mostly in the pursuit of litigation. While the facts about the Indian legal profession are no doubt interesting in themselves, my purpose is to examine what can be learned about the process of litigation from a study of the profession. The relationship between lawyers' careers and work styles on the one hand and the demands for law work on the other has been presented in general terms by Rueschemeyer (1973: Ch. 1). The data I shall discuss deals with this relationship in more detail, and can, I submit, yield important support for a critique of the various analyses of litigation which assume that its function is dispute settlement.

Based on an ethnographic study of courtroom interactions in the bilingual (Chinese/English) common law system in Hong Kong, this article investigates how language plays a constitutive role in shaping the ways people use, argue, and think about law. While the use of English in Hong Kong prescribes by default the supposedly universal speech act of statement-making, the presence of Cantonese allows local speech acts to be brought into the courtrooms. Two local speech acts, “catching fleas in words” and “speaking bitterness,” are discussed. The findings of this study suggest that by studying the local practices and beliefs in postcolonial settings, researchers can gain insights into the complex ways in which Anglo American–style legal institutions are reconstituted.

While procedural justice has been regarded as a distinct and essential factor shaping litigants' views on civil justice, few studies have focused on China, a country with a unique legal tradition and frequent legal reforms. Drawing on surveys and interviews with litigants in a basic-level court in Southern China, this study examines attitudes toward the civil justice system. Echoing several existing studies from China, our mixed methods analysis confirms that their views are dominated by outcomes—litigants with favorable outcomes are more likely to be satisfied, while those with unfavorable outcomes are more likely to be dissatisfied. Their unfamiliarity with the operation of the system constitutes a major reason for the dominance of substantive outcomes in their evaluations of the system. Many cannot distinguish between process and outcomes, nor do they feel control over the process. Moreover, they are dissatisfied with the process because it fails to meet their often-erroneous expectations. Our results do not necessarily challenge the importance of procedural justice, but they do suggest that China may be different. Litigants' perceptions of justice and fairness are situated and shaped by specific contexts.

The simple logic of plea bargaining is so compelling that it is now often taken for granted, with the result that its value as an explanation is diminished. Differences among a host of distinct practices may be obscured or ignored when they are lumped together under this single term. This comment examines the practice of pleading guilty to petty offenses in lower courts and questions some of the long-standing assumptions about the dynamics of that process. It shows that though plea bargaining of the classical type rarely occurs, the term itself and certain aspects of bargaining continue to serve important symbolic functions.

Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to U.S. border control problems. More than a decade after the official launch of the border control paradigm of “prevention through deterrence,” predicated on the assumption that ramping up walls, barriers, policing, and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also proved ineffective but have persisted alongside the policy of diversion. The article is based on research in a region where the reality of diversion and death instead of deterrence was lived but where people still pursue projects of barrier-building and death mitigation that they know to be ineffective. The article analyzes how fantasy fuels action despite knowledge and occludes a traumatic element around which the symbolic order of border law is structured: the foundation of “good life” with its bounty of rights, privileges, and opportunity on the exclusion of basic life denuded of the entitlements that make the good life sweet. The article also examines how fetishes are used to cope with unrealized hopes and to diffuse the impact of the traumatic knowledge that good life is undergirded by the exclusion and even death of basic life.

Extensive sociolegal scholarship has addressed the utility of law as a mechanism through which marginalized groups may promote social change. Within this debate, scholars employing the legal mobilization approach have thus far highlighted law's indirect impact, beyond the formal arenas of law, via effects on the “legal consciousness” of reformers and would-be reformers. This article contributes to this debate, and the legal mobilization framework in particular, by theoretically identifying and empirically documenting ways through which the constitutive power of law may be effectively used by challengers to more directly pursue changes in institutionalized practices themselves. The article examines the strategic use of law by a set of American Indian tribal leaders in the state of Washington who, over a 13-year period, consciously meshed or “cohered” legal and extrajudicial efforts to gain recognition of their sovereign political status. Through a mode of agency known as “institutional entrepreneurship,” they utilized the multiplicity of law and exploited resources and opportunities inhering within the state itself, but outside the courts. In the context of ambiguous legal precedent and widespread local challenges to tribal rights, they mobilized latent discourses of federal Indian law that legitimated the sovereign governmental status of tribes. Importantly, they circulated tribal sovereignty discourses well beyond the field of law, but through the authoritative activity and voice of the state, and in doing so, generated a precedent-setting recognition of tribal sovereignty.

The central theme of this paper concerns the difficult question of whether the use of force, and, generally, the coercive character of a political regime stimulates or inhibits the occurrence of political strife and violence. More specifically, two questions are raised: First, what is the relationship between the degree of regime coerciveness and the amount of violence experienced within political systems? Second, in what way does the consistency or inconsistency with which force is applied affect internal political stability and turmoil?

Ten years ago, in the first issue of this review, Carl A. Auerbach criticized some early statements of an emerging “Berkeley perspective” in the sociology of law (Auerbach, 1966). Selznick, Skolnick, Carlin, and I were chided for proposing in various terms that a central concern of the sociology of law should be to study the social foundations of the ideal of legality (Selznick, 1961; 1968; Skolnick, 1965; Carlin and Nonet, 1968).

This paper explores the use of different types of sentence bargaining tactics in ten federal district courts. We distinguish between proactive and reactive prosecutorial orientation, and hypothesize that proactive prosecution of upperworld crime is associated with more explicit sentence bargaining than is the reactive prosecution of underworld crime. We present evidence for and explanations of this relationship.

While many of the decisions of federal district court judges involve the routine application of settled legal rules, a significant minority of their decisions present the judges with the opportunity to engage in judicial policy making. A considerable body of literature suggests that when faced with policy-making opportunities, the policy preferences of the judges exert a significant impact on the nature of those decisions. The present study explores the question of whose preferences are manifested in the policy-relevant decisions of the district court judges. In particular, we seek to determine the relative impact of the preferences of the major elites involved in the selection of federal district judges: the appointing president, home state senators of the president's party, and home state elites outside the Senate who are consulted when a president makes an appointment from a state whose Senate delegation is in the hands of the opposition party.

The analysis is based on all published decisions of the district courts in civil liberties, economic and labor, and criminal procedure cases decided between 1961 and 1995. We find that contrary to the expectations derived from the existing literature on district judge appointments, the political preferences of the appointing presidents are most closely related to the policy relevant decisions of the judges.

This is a comparative study of legal mobilization that shows how various patterns of legal representation and layperson participation affect the scope and pace of mobilization. These patterns do not emerge from whole cloth during a particular legal mobilization but rather develop according to preexisting trends of representation and participation.

The author first discusses this analytic framework and then presents four case studies. Ultimately he presents a comparative analysis of these cases to generalize about the relationship between the patterns and the scope and pace of mobilization. He argues that patterns of legal representation and layperson participation are powerful determinants of the style and outcome of legal mobilization.

The social processes involved in the development of criminal laws have been studied by several scholars (Jeffery, 1957; Hall, 1952; Chambliss, 1964; Lindesmith, 1965; Sutherland, 1950; Becker, 1963). Generally, two major perspectives have guided these studies. One orientation has been the functionalist perspective (Pound, 1922, 1942; Durkheim, 1964) which stresses the emergence of moral consensus and the functional interdependence of the law with other institutions. Dicey (1920) suggests that public consensus is preceded by the origination of such ideas among elites, and is only later accepted by the mass of citizens. Such consensus, he claims, supplies the foundation for eventual legal change. An alternative view is the conflict . orientation (Quinney, 1970; Vold, 1958: 203-219; Engels, 1972; Laski, 1935) which views law as the instrument through which one interest group dominates another. In the development of workman's compensation laws, Friedman and Ladinsky (1967) trace the history of conflict and eventual accommodation between workers and factory owners.

Despite a rich literature in law and society embracing contracts as exchange relations, empirical work has yet to consider their emotional dimensions. I explore the previously unmapped case of surrogacy to address the interface of law and emotions in contracting. Using 115 semistructured interviews and content analyses of 30 surrogacy contracts, I explain why and how lawyers, with the help of matching agencies and counselors, tactically manage a variety of emotions in surrogates and intended parents before, during, and after the baby is born. I establish that a web of “feeling rules” concerning lifestyle, intimate contact, and future relationships are formalized in the contract, coupled with informal strategies like “triage,” to minimize attachment, conflicts, and risk amidst a highly unsettled and contested legal terrain. Feeling rules are shared and embraced by practitioners in an increasingly multijurisdictional field, thereby forging and legitimating new emotion cultures. Surrogacy offers a strategic site in which to investigate the legalization of emotion—a process that may be occurring throughout contemporary society in a variety of exchange relations.