The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out-group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out-group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in-group/out-group status.

Despite considerable research directed toward understanding the factors that affect punishment decision-making leading to imprisonment, few studies have examined the influences of punishment decisions within prisons. Punishment decisions made within prisons can affect an individual's liberty during their imprisonment and/or the timing of their release from prison if the punishment results in the loss of sentencing credits or influences parole decision-making. Moreover, if punishment disparities result from these decisions, then some offender groups may endure a greater loss of liberty relative to others. In this study, we examine the factors that influence prison officials’ decisions to remove sentencing credits in response to prison rule violations. Analysis of collected data from a Midwestern state prison system reveal that prison officials are primarily influenced by the seriousness and type of the rule violation, along with an inmate's violation history. Other relevant factors include those proximately connected to an inmate's risk of subsequent misbehavior such as gang membership and those that are linked to practical consequences and constraints associated with the organizational environment and particular inmates such as the proportion of their sentence an inmate has served and whether an inmate has mental health problems.

Proposals for the decriminalization of heroin are examined and then analyzed in terms of the ideology of tolerance which informs anti-psychiatry, labeling sociology, and the concept of the victimless crime. Marcuse's discussion of repressive tolerance is brought to bear on this issue in order to suggest that tolerance for deviance may have consequences not immediately expected by those who advance reformist proposals regarding narcotics policy.

This article joins the debate about the popular pervasiveness of antitort and antilitigation attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered by reality-based television judge shows. Given the persistent debate about tort reform and scholars' recognition of the role played in this debate by simplified narratives about the legal system, we analyze whether reality-based TV judge shows as a genre contribute to the creation and dissemination antitort and antilitigation sentiment. Earlier studies led us to hypothesize that TV judge shows would largely support the antitort and antilitigation narratives. After coding over 55 hours of such shows, however, we conclude that they do not adopt this narrative. Rather, these shows present a view of the civil law system that largely treats plaintiffs' claims as legitimate and showcases the majority of defendants as wrongdoers. In spite of this, we argue that the particular dramatic qualities of TV judge shows limit their potential to serve as a strong counternarrative to antitort and antilitigation stories.

Health care rights for transgender and/or nonbinary people have dramatically expanded in recent years, including in insurance coverage for the treatments and procedures they need. Yet, trans people themselves still identify health insurance problems as a top priority for research and policy change because of significant difficulties gaining and using coverage. Wrangling over coverage determinations happens through multiple types of interactions, bureaucratic, interpersonal, and medical. When these interactions become difficult, it is because key terms such as medical necessity are both powerful and indeterminate. This study examines how trans people and health care intermediaries navigate the health insurance process and contest the meaning of medical necessity in coverage determinations. These disputes constitute the ground-level reality for instantiating health care rights to gender affirming care. Relying on analysis of contract language and 32 interviews with people who sought gender-affirming care and allied professionals, we find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for trans people who attempt to access care. Our study highlights how the contested life of insurance policy terminology produces a reality for rights but also details the mechanisms through which insurance-mediated care is a socially contested and negotiated process

The boundary between homo- and heterosexuality once stood solidly in our cultural imagination, marked off by a set of assumed differences that were purportedly made manifest in real, material ways. Gays and lesbians, so the story went, were verifiably different from straight people, but gradually, the perceived boundary between the two sexualities has eroded. It has been 30 years since the American Psychological Association cured us of our homosexuality with the stroke of a pen. Despite the enthusiastic application of scientific and statistical technologies, the efforts of researchers such as Dean Hamer, Peter Copeland, and Simon LeVay (just to name a few), have failed to show conclusively that our ears, fingers, brains, or genes actually reveal anything concrete about our choices of sexual partners. Lawrence v. Texas (2003) has knocked down Bowers v. Hardwick (1986) as well as the remaining sodomy laws, expanded the right of privacy to include same-sex sex, and in the wake of Goodridge v. Dept. of Public Health (2003) Massachusetts has begun allowing same-sex couples to marry. In contrast to many European nations, gay and lesbian parents in the United States are winning legal victories with increasing frequency, gaining greater access to adoption and child custody despite jurisdictional variation. For that diminishing segment of the population that still desperately wants a clear marker of its sexual superiority the news is not good. Fortunately for them, heterosexuals still have one clearly identifiable social sanctuary where they can remind themselves that they have something that non-heterosexuals do not: marriage. With a minimum of effort and expense, one man and one woman can enter into a relationship with the state that brings about numerous legal benefits, obligations, and privileges. Despite some advances, marriage thus stands as one of the last clearly exclusive, forcefully bounded, brightly illuminated enclaves where gays and lesbians may not tread; it remains for heterosexuals only (or at least, for those who want to appear that way).

In 1965 the Minnesota legislature created the office of State Public Defender and authorized the establishment of defender systems in the ten judicial districts which comprise the state judicial system. District systems were to be established upon decision of the district judges for each given district. The period from 1966 through 1967 saw the expansion of the system from two original districts to six additional judicial districts. This study describes and explains the effects of the introduction of this indigent defense system upon the criminal law process in the state of Minnesota. What follows essentially focuses on a problem of institutionalization, i.e., the transformation of an idea or concept into a working institution and its subsequent manifest or latent consequences. (On this problem, see Warriner [1962] and Eisenstadt [1957].) The primary task of this study is the determination of the changes effected by the introduction of the system upon the variables by which the criminal law process is statistically monitored. The replacement of the appointive counsel system by the public defender system assumes a change in the operative goals of the defense system. The statistics which monitor the criminal law process are analyzed for changes which indicate a modification in those operative goals. Particular emphasis is placed on the discovery of trends in the process variables which indicate goals pointing to a maximization of due process values. We also undertake a comparative analysis which emphasizes differentiation congruent with increasing experience under the public defender system. Finally, the study analyzes reaction to the system on the part of personnel involved in the adversary process affecting indigent accused.

This comment responds to Frank Munger's Law and Society Association Presidential Address on scholars as activists. It argues that scholarly research can both constitute and fuel activism. Activist scholarship is, however, not confined to scholars in any one part of the political spectrum. Deeply held values can motivate exceptional work but also raise the danger that political commitments will unduly influence purportedly “objective” findings. Value-infused research should be true to research values even if inspired by political ones.

The ways in which grievance procedures are used and perceived by incarcerated people raise important questions about the operation of procedural justice and legal consciousness and mobilization scholarship in settings where rights are especially vulnerable. This paper analyzes perceptions and usage of the grievance procedure for incarcerated people using survey data from people (N = 508) in three prisons in Ireland. We find that incarcerated people's views of the grievance procedures are generally negative, though some use it, especially those serving long sentences and those in segregation, with education level not significant in terms of usage. Additionally, having confidence in staff is associated with satisfaction with the procedure, as is the perception that one's rights are respected, showing important connections between perceptions of complaints and aspects of legal consciousness. We suggest a need for further situated analyses of procedural justice and legal consciousness, as well as practical requirements for complaints systems to elicit confidence among incarcerated people.

Although always an integral part of sociology, the study of social control has waxed and waned. Originally, the concept was defined broadly as any structure, process, relationship, or act that contributes to the social order; indeed, the concepts of social order and control were indistinguishable. A consensus is now emerging that distinguishes social control from the social order it is meant to explain and that distinguishes among social control processes. One basic distinction is between processes of internal control or socialization and processes of external control. Recently, the study of social control is equated more with the latter than the former.

What is it that sets legal systems apart from other kinds of systems of social control? Traditionally, legal philosophers have tried to answer the question in terms of some uniquely essential quality which distinguishes law from everything else. It now seems clear that the concept of law is best understood, not in terms of any single feature to be taken as the essence of law, but as a whole set of family resemblances between the various things we call legal systems (Hart, 1961: 1–17, 234). What I propose to do here is to deal with one particular facet of the concept which, I think, has not been given sufficient attention by the currently dominant positivist school of legal philosophy.

Much of the judicial process literature assumes that appellate courts routinely publish all decisions they make. In fact, even with the proliferation of case law in the United States, since the 1970s many appeals court decisions have not been published. In England, however, selective publication of appellate decisions has always been an integral part of how courts interact with the broader legal and political system. This article explores some theoretical implications of selective reporting of appellate decisions within common law systems that rely on the published appellate ruling as a primary mechanism of communication between courts and the broader legal and political environments. The focus is on how appellate decisions are selected for publication, especially in the English Court of Appeal. The author proposes an empirical model that conceptualizes reporting as a communications process. He hypothesizes that the basis of selection can be viewed in the context of a cue theory that dichotomizes the communication of passive and dynamic cues between senders in the Court of Appeal and receivers within the community of law reporters.

This article tests the usefulness of some aspects of functional theory in explaining the relationship between socioeconomic development and litigation trends in Belgium for 1835–1980. Some of the six hypotheses derived from functional theory are supported by the data; others are clearly contradicted. The analysis indicates that litigation is obviously not an automatic response to conflict caused by socioeconomic change. Socioeconomic development is only one factor causing litigation, and its explanatory power is limited. Research progress can only be made by studying various kinds of conflict and types of actors, all trying to reach their specific goals in a given social context.

This article examines the determinants of judicial behavior in the context of transition. It tests two assumptions: first, that the judges with experience from the pretransition criminal justice system behave differently from the judges with no such experience; second, that minorities are discriminated against due to their dominant position in society before the transition and stereotypical attitudes after the transition. Using evidence from trial-level courts in Estonia, we find no statistically significant effects between case outcomes, the experience of the judge, and the ethnicity of the suspect.

Across the globe, governments are implementing electronic vehicle registration programs capable of locating automobiles instantaneously. In order to understand the impact of such programs on contemporary governance, this article draws upon the extant literature on automobility, law and society and science and technology studies theory, and data collected from Mexico, where the government has been implementing the Public Registry of Vehicles (REPUVE). The central argument of the article rests on three concepts. First, the automobile has recurrently served as a disruptive technology in modern society, a technology whose adoption unsettles the social order by drawing users away from their usual modes of social interaction. In response, state authorities over the course of the twentieth century created a collection of legal rules, actors, and institutions designed to take hold of the wheel. By penetrating automobility with law, the state transformed the car into a legal enactment device, a technology whose operation pushes people to enact the law and, in so doing, constitutes the sociolegal order. In Mexico, a host of forces have conspired to weaken the state's hold on the wheel. The REPUVE promises to change this by “delegating” policing duties to radio-frequency identification stickers affixed to vehicles and scanners placed on roadways. Rather than enforcing the law through corruptible humans sanctioning irresponsible drivers, the REPUVE opens the possibility of doing so through a “surveillant assemblage” denying roadway access to suspicious vehicles. In the REPUVE then, the automobile passes from a legal enactment device, a technology whose operation pushes users to enact the law, to a legal prescription device, a technology whose operation requires them to do so. By demonstrating the role of vehicular regulation in the “mutual becoming” of society and technology, this study contributes to the growing research on the intersection of law and technology and provides a glimpse into the changing nature of legal power in the contemporary state.

Plaintiffs in civil cases and the prosecution in criminal actions generally have the “burden” of proving all factual issues material under the applicable substantive law. The effect of so placing this burden is twofold. First, it compels the plaintiff, or prosecution, to produce a quantum of evidence sufficient to persuade the judge that a reasonable jury could (not should), on the basis of that evidence, find that the burden has been “carried” and that the requisite facts have been proven. If the judge finds the evidence inadequate for that purpose, he will direct a verdict for the defendant. The second effect results from the revelation of this burden to the jury so that it may consider it in its deliberations. No matter how that burden is described to the jury, some disadvantage should accrue to the party bearing it. The Simon/Mahan study raises a number of interesting questions about the extent to which that disadvantage can be quantified and how juries will react to that quantification.

During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interest-group politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self-justification even as it leaves the ultimate validity of racial preferences open to question.

This article reconsiders the conventional wisdom that the Supreme Court definitively abandoned the freedmen to their former masters through the “state action” decisions of the 1870s and 1880s. Arguing that anachronisms distort our understanding of this critical period, I offer an historical institutional analysis of state action doctrine by recovering the legal categories, assumptions, and distinctions that constituted judicial discourse about the state action rule. Showing that federal power to protect blacks was more intact than scholars realize, I also add a perspective from the sociology of knowledge. By examining a series of modern developments that erased the contexts of the state action decisions, I show how institutional practices gave rise to the anachronisms that this article seeks to correct.