Allan Horwitz and I are in full agreement about the value of studying the extralegal sources of statutory law (such as vagrancy legislation) or of governmental social control (whether or not it is identified as law). A good deal of my own work has concerned just this (Greenberg, 1977; 1980; forthcoming; Humphries and Greenberg, 1981; forthcoming; Loftin et al., 1981).

In this article I review court records from the early period of settlement in Puritan Massachusetts (1629–50). The study avoids the great controversies of the day, focusing instead on the patterns that appear in the adjudication of a great number of cases over time. In the first part of the study, a quantitative analysis is performed on a data set comprising crimes (the independent variable) and punishments, evaluated according to an ordinally ranked scale of severity. In the second part, I review the records in detail and suggest conclusions concerning the purposes of punishment and the organizing concepts that are shown to have governed the adjudication of cases in the early Massachusetts courts. The study finds that over a period of decades and a large number of cases (N=793), the actions perceived to be necessary for the restoration of communal order dictated the severity of punishment imposed. I argue that this pattern demonstrates impressive fidelity to the doctrinal principles that served as the public legitimating principles for these courts. These findings, in turn, encourage us to question accounts that purport to show that these principles were merely veils for religious, economic, or social aggrandizement, particularly when such accounts are based on interpretations of individual cases or events.

How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group's ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices' own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group's conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer's preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer.

Repeat players and plaintiffs seem to have an advantage in the negotiation phase and in the trial phase of civil disputes. We suggest that their advantage may turn to a disadvantage after the court's judgment, when the award has to be collected. We contacted attorneys for all cases in three trial courts in The Netherlands in which the plaintiff's claim had been granted in whole or in part in a final decision three years earlier (N=970). We asked them to what extent the defendant complied with the judgment. The results show that plaintiffs have difficulty in collecting their awards. On average, only a little more than half the award is collected after three years. Repeat players continue to prevail if they are plaintiffs, but are worse off than one-shotters if they are defendants.

This comment argues that to understand the role of trial courts in maintaining a particular order of differences in society, attention must be directed beyond official legal arenas and official rules to the actions of ordinary citizens and of “marginal” legal officials who make law and shape the court through practices that are excluded from official accounts. This move provides an account of the meaning of courts, of cases, and of law that is relational, and that attends to the agency of everyday people in producing and resisting forms of domination.

In early modern Europe, popular hostility toward criminals could be expressed through the use of the pillory (a device in which offenders were restrained and publicly displayed). Modern electronic communications have facilitated the emergence of contemporary versions of the pillory. One such example is prodeathpenalty.com, a Web site created by supporters of capital punishment that permits members to post comments about particular executions. Most such comments are markedly hostile toward the convicted offender. But is the hostility random or patterned? A new theory by Donald Black predicts that hostility will increase with changes in social space, or the movement of social time. Testing Black's theory, we find that the number of online comments hostile to the killer and supportive of the execution increases with the degree to which the murder was a movement of relational, vertical, and cultural time. Moving beyond the electronic pillory, we argue that Black's theory has much to offer to law and society scholars.

Skeptics of Supreme Court power have pointed to abortion policy as an example of surprising limits on the justices' power to change society. I argue, however, that the Court's ruling in Roe v. Wade played a critical role in transforming how Americans think and talk about abortion. I develop an account of the development of the social conception of abortion from a critical reading of twentieth century American journalism and then test some predictions of that account through the use of quantitative content analyses. I conclude by discussing some implications for the study of judicial politics and public constitutionalism.

Mitigating evidence in capital trials provides reasons for a life, rather than death, sentence. Research suggests that mitigation challenges jurors. We contribute to this area by analyzing federal verdict forms in capital cases, which allow jurors to write in their own mitigating factors, providing a direct, rare window onto their mitigation considerations. We use 205 forms from 171 juries to examine the frequency and content of these “write-ins,” using a sentencing theory typically applied to judges, Focal Concerns Theory. We find that four of every 10 juries prompted to offer their own mitigation do so, producing 149 unique write-ins, the majority of which introduces mitigation topics that differ from those listed on the verdict form. Surprisingly, jurors are less likely to offer write-in mitigators in cases involving White defendants than others, even after controlling for support for other mitigating factors and for aggravating factors, which also predict write-ins. Jurors' write-ins reflect a traditional sentencing concern for blameworthiness, and consistent with Focal Concerns Theory, attention to the practical consequences of punishment. Jurors also offered concerns we term “procedural fairness.” Results indicate that juries' views are patterned in ways that are similar, but not identical, to judges' sentencing concerns.

Prior to January 1974, jury selection procedures violating basic standards of randomness had resulted in juries in Erie County, New York, which were overwhelmingly male. This paper describes the biased selection procedures, their discovery by volunteers engaged in a project to ensure a fair trial for prison inmates under indictment for events occurring in the Attica uprising, and the consequences of both improved procedures and an amended law for sexual equality in jury selection.

Two linkages between law and society are explored. First, the existence of a “woman's exemption” had led the jury commissioner and staff to make systematic prejudgments about women's behavior which then resulted in their underrepresentation on juries. Second, lawyers and social scientists worked together, using procedures and concepts from both disciplines to achieve a goal of mutual interest: improvement of the methods of jury selection, so that jury composition would more closely resemble the composition of the community. Possibilities and problems of social scientists working with lawyers are described briefly.

The scale of the quantitative changes in the legal profession of the United States described by Curran seems to be not unusual in the Western industrialized world. Many countries have similarly experienced large increases in the absolute number of lawyers, the ratio of lawyers to population, and the proportions of comparatively young and inexperienced lawyers and women lawyers. Nevertheless, the United States remains unusual in its high proportion of lawyers in private practice.

The impact of United States Supreme Court decisions on the administration of criminal justice by police and lower courts in this country has been the subject of extensive research. A number of empirical studies on the impact of Mapp v. Ohio (1961) (Kuh, 1962; Oaks, 1970), Miranda v. Arizona (1966) (Reiss and Black, 1967; Yale Law Review, 1967), Gideon v. Wainwright (1963) (Blumberg, 1966; Sudnow, 1965) and in re Gault (1967) (Duffee and Siegel, 1971) have indicated that Supreme Court decisions have a much smaller impact upon police and court practices than might be expected and that systemic requirements of criminal justice agencies frequently override and suppress the policy objectives of these decisions. The result is the routinization of due process in a way which prevents its requirements from substantially interfering with the operation of the systems involved and the perversion of these requirements to serve organizational ends rather than the ends of justice. These studies raise substantial questions as to the efficacy of attempting to alter the operations of the criminal justice system through constitutional rule-making by the courts.

When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.

Lawyers and anthropologists who are equally concerned with scientific and pragmatic questions have called for investigation of specific instances of legal change. Such men as Garland and Roth (1967), Healey (1964), Schiller (1965), Thompson (1968), and Twining (1964) have pointed out the need for concrete facts and figures for use in evaluating particular theories of and hypotheses about the process of legal change. In The Place of Customary Law in the National Legal Systems of East Africa, Professor Twining comments that “it would be of great value to have some intensive studies in depth of the introduction of the new courts system and the unified customary law” in Tanzania (1964: 51). He adds that “it is encouraging to hear that a private research project on similar lines is under way in Sukumaland” (1964: 59, fn. 42).

Suppose you want to write
Of a woman braiding
Another woman's hair-
Straight down, or with beads and shells
In three-strand plaits or corn-rowsYou
had better know the thickness
The length the pattern
Why she decides to braid her hair
How it is done to her
What country it happens in
What else happens in that country
You have to know these things
-Adrienne Rich, "North American Time"

Although Adrienne Rich tells us we “have to know these things,” we are often willingly blind to the rich stories of those with whom we are most intimate. You may braid someone's hair without knowing very much about her. You may even write about it, though the writing would rapidly become very dull. In this issue of Law & Society Review, the authors examine how legal regimes facilitate knowing (and ignoring) stories when making families. For people seeking to adopt a child in western national states, the law has sometimes made it easy not to know about who bore a child, why she is available for adoption, and why a family might have raised her one way rather than another—braiding her hair in cornrows or in plaits. Also, in intercountry adoption, children often arrive with no history available, a condition legal adoption allows and often facilitates. We need not know “what else happens in that country.” Recent scholarship notes the historical and cultural specificity of the practice of ignoring. Adoptees, mothers who have placed their children for adoption, and adoptive parents have all claimed a right to know their own or their child's history, sometimes for different reasons. Scholars have followed, explaining that creating an “as if” family, in which all of this knowledge is foreclosed, does not fit with the experience of families. Articles in this issue address three interlocking themes that question the practice of not knowing: the commodification of children and family in a market economy, contests over the framework of choice in the making of a family, and the identity of children.

This article uses a fine-grained anthropological and linguistic analysis to expose the routine negotiating practices and power games behind the conclusion of paragraph 115 on responsible agricultural investments during the Rio+20 Conference in June 2012. These negotiations are simultaneously a telling example for the quotidian stuff of international governance—an arena in which much larger forces are played out through small language-based tactics, and they are representative of an exceptional moment when global multilateral policy making in the frame of the United Nations was challenged by the legitimation of private authority and corporate self-regulation. Combining anthropological and linguistic methods, the article focused on language use, analyzing the ways in which people interact in a highly coded language, how they “perform,” by exploring, playing with, and twisting the grammatical structures of the spoken language. At issue is the large-scale appropriation of agricultural land all over the world by multinational corporations, investment funds, and foreign governments.

Unlike other federally assisted public welfare programs, the Aid to Dependent Children program has periodically been subjected to sharp political and journalistic attack. The themes of these attacks center around assertions that the program has encouraged illegitimacy and contributed to an increasing number of female-centered families. Bound up in such criticism is the suggestion that the parents of many, if not most, of the children receiving public assistance are unworthy of it by reason of their conduct or their notions of proper conduct. Also included in this anti-ADC ideology are the sloganlike propositions that many poor women have illegitimate children simply to become eligible for ADC payments and that they have additional children to obtain increased payments. A closely related assertion is sometimes made that the availability of ADC payments, or the way in which they are administered, causes many men to abandon their families or to live separately but nearby, and that the program in this way promotes and perpetuates matrifocal family patterns.

We investigate why the Supreme Court grants a smaller percentage of cases at the first conference of each term compared to other conferences. According to received wisdom, Supreme Court law clerks are overly cautious at the beginning of their tenure because they receive only a brief amount of training. Reputational concerns motivate clerks to provide fewer recommendations to grant review in cert. pool memos written over the summer months. Using a random sample of petitions from the Blackmun Archives, we code case characteristics, clerk recommendation, and the Court's decision on cert. Nearest neighbor matching suggests clerks are 36 percent less likely to recommend grants in their early cert. pool memos. Because of this temporal discrepancy, petitions arriving over the summer have a 16 percent worse chance of being granted by the Court. This seasonal variation in access to the Court's docket imposes a legally irrelevant burden on litigants who have little control over the timing of their appeal.