This study compares the language in which South African and United States law represents the histories of indigenous peoples. South African political and legal language has linked denial of indigenous peoples' history with denial of rights to property. The language of the law in the United States recognizes prior history and prior possessory claims to land, although in the past this recognition did not stop the decimation of Native Americans. The contrast between the uses of history in the laws of two nations reveals how ideologies, language, and the law are intertwined in the determination of indigenous peoples' property rights.

Since both law and society and law and economics apply social science concepts and methods to the problems of the legal system, one might think that the two disciplines are natural allies. Indeed, with the largely empirical focus of law and society and the strong emphasis on theory in law and economics, the benefits from collaboration between the two would seem to be particularly great. Perhaps surprisingly, though, they have often been at odds with one another, with both groups willing to concede only grudgingly that the other has made useful contributions to the study of legal and public policy issues. The hostility is reflected in the fact that, at recent law and society meetings, very few devotees of law and economics have been in attendance, either as speakers or as members of the audience. What then can explain this chill?

This paper examines procedural justice in the context of citizen experiences with the police and courts. It is based on interviews of 652 citizens with recent personal experiences involving those authorities. I will consider two issues: first, whether the justice of the procedures involved influences citizen satisfaction with outcomes and evaluations of legal authorities; and second, how citizens define “fair process” in such settings. The results replicate those of past studies, which found that procedural justice has a major influence on both satisfaction and evaluation. They further suggest that such procedural justice judgments are complex and multifaceted. Seven issues make independent contributions to citizen judgments about whether the legal authorities acted fairly: (1) the degree to which those authorities were motivated to be fair; (2) judgments of their honesty; (3) the degree to which the authorities followed ethical principles of conduct; (4) the extent to which opportunities for representation were provided; (5) the quality of the decisions made; (6) the opportunities for error correction; and (7) whether the authorities behaved in a biased fashion. I found that the meaning of procedural justice varied according to the nature of the situation, not the characteristics of the people involved.

In this paper we argue that differences in the conceptualization of individual actors in networks provide the most parsimonious explanation for differences that occur between American and Japanese views of sanctions and between actors in different role relationships within each society. Our empirical tests drew on respondents' hypothetical punishment choices and punishment rationales in surveys of Detroit, Michigan, and Yokohama and Kanazawa, Japan. As predicted, American views of punishments for everyday misdeeds were more likely to favor isolation or retribution and American rationales for imprisonment were significantly more retributive than in Japan. Within each culture, offenses between intimates were least likely to evoke isolative or retributive punishments whereas offenses between strangers were most likely to do so. We conclude by considering alternatives to our structuralist explanation of these findings and by suggesting some implications of legal culture for dispute resolution in the United States versus Japan.

Recent research on the determinants of litigant satisfaction has consistently found that abstract evaluations of the justness of case outcomes and of the fairness of the case disposition process contribute significantly to outcome satisfaction, independent of the favorability of the outcome itself. Most such findings have been produced either in laboratory settings using college student subjects or in survey research involving litigation in which the stakes are relatively small. As a consequence, skepticism has been expressed about whether procedural and distributive justice make a difference in serious civil or criminal cases. Reanalyzing data gathered in a previous panel study of defendants charged with felonies in three cities, we argue that the evidence suggests important effects for procedural and distributive fairness, even among a sample of litigants who share few attributes with college student populations and who are involved in litigation in which the stakes are high. The implications of these findings for case disposition processes such as plea bargaining and alternative dispute resolution techniques are discussed.

This article explores the connections between the interpretive and comparative dimensions of ideology by analyzing ethnographic data from an American town. The town is undergoing a rapid process of urbanization, and townspeople are absorbed in the analysis of the changes around them and their town's prospects as a community. The article compares interview data and courtroom observations in which local understandings are shown to be constituted in pervasive cultural distinctions: past and future, insiders and outsiders, harmony and conflict, gender, and various forms of family life shape local views of change and conflict. The conclusion relates an analysis of the symbolic terms in which these distinctions are expressed to general issues of the nature of ideologies and their truth claims.

In this paper we present results from a study of small claims litigants' expectations about the civil justice system. Interviews with plaintiffs at the time they file their cases reveal that many people come to court with profound misunderstandings about the authority of civil courts as well as the procedural and evidentiary burdens that the civil justice system imposes. These findings, based on the empirical investigation of litigants' beliefs about and understandings of civil justice, complement experimental studies of procedural justice conducted over the past two decades. We find that litigants are at least as concerned with issues of process as they are with the substantive questions that make up their cases. Yet litigants' preconceptions of procedure are frequently at variance with what the law requires and what will happen in the legal process. Such differences suggest that litigants' expectations and understandings deserve attention in the study of their attitudes toward the legal process.

Largely as a result of the feminist movement, most states have passed some form of rape reform legislation. Most rape law research has attempted to ascertain whether the reformed laws have achieved specific instrumental goals. In contrast, this paper emphasizes rape law reform as a symbolic indicator of women's contemporary social status. We believe there is a need for a greater appreciation of the diversity of rape law reform across the country and of the coexistence of traditional and feminist elements in contemporary law. Through a comprehensive empirical assessment of state rape statutes, we identify the different dimensions of rape legislation and provide insight into the degree to which feminist conceptualizations of rape have achieved social legitimacy.

Preadjudicatory detention is used for about one-third of all juvenile offenders (Poulin et al., 1980). A protectionist purpose is often held to justify both the need for discretionary decision making in these cases and the absence of due process protections. In this study, we have included measures of juvenile offenders' socioemotional status with indicators of their legal status and social background in a log-linear analysis of detention decisions in New Jersey. The results suggest that protectionism is a major influence on these decisions and is in turn related to the impact of gender.

New York's Juvenile Offender (JO) Law of 1978 is a significant step away from separate systems of justice for adults and juveniles. The law requires that juveniles accused of violent offenses be tried in criminal court, and it provides penalties comparable to those for adults. This paper evaluates the impact of the JO Law on violent juvenile crime rates in New York City and in upstate New York. Analyzing arrest data through the use of an interrupted time series model, we conclude that the JO Law has not been effective in reducing juvenile crime.

We present a detailed case study of administrative responses to litigated reform efforts directed at the Texas Department of Corrections over a two-decade period. We found that administrators attempted to maintain their organizational boundaries by: (1) controlling information; (2) using political connections in the broader community; (3) launching a judicial counterattack; and (4) exercising administrative prerogatives. Defiance of demands from the broader legal community was related to: (1) the organizational culture of the Texas prison system, which developed and existed in isolation not only from the federal courts but also from oversight by state officials; (2) pronouncements by the prison system's leadership that created a moral climate in which court-ordered reform could be readily defined by prison staff as illegitimate; and (3) ineffective control structures within the system that failed to respond to violations of the law by prison staff. Keeping the limitations of a single case study in mind, we close with a set of observations for addressing court-ordered organizational reform in a comparative framework.

In his discussion of modern society, Habermas begins with Weber's thesis of a universal rationalization process within which the rationalization of law plays a central part. Thus his starting point is the classical thesis of the formal rationalization of law as advanced by Weber (1960; Schluchter, 1979). Habermas tries to show that Weber's theorizing is deficient because he underestimates the specific historical role of the materialization of law (1981, Vol. 1: 332). Additionally, such theorizing does not allow us an adequate grasp of some recent developments that proceduralize law (Teubner, 1983, 1984; Eder, 1986). From the perspective of Weber's theory of formal rationalization, the processes that materialize and proceduralize law appear to be aberrations from the normal path of modern legal development. Habermas suggests that, far from being deficient, these processes are necessary forms of law in the process of modernization. The appearance of deficiency proceeds from Weber's attempt to separate morality from law and to conceptualize a moral-free law, a corollary of Weber's plea for a value-free science. Habermas concludes that formal rationalization is an inadequate model of law operating in the modern welfare state. Thus a new model is in order.

Through an analysis of the structure of the community mediation movement in the United States and an ethnography of the practices of mediators in local programs, this paper examines how community mediation is made, and how it is ideologically constituted. The ideology of community mediation is produced through an interplay among three ideological projects or visions of community mediation and organizational models, and by the selection and differential use of mediators to handle cases. We argue that ideologies are formed through the mobilization of symbolic resources by groups promoting different projects. Central to the production of mediation ideology is a struggle over the symbolic resources of community justice and consensual justice. Although various groups propose differing conceptions of community justice, they share a similar commitment to consensual justice, and this similarity is produced through reinterpretations of the same symbols. The ambiguities in community mediation are, it appears, being overtaken by consensus on the nature of the mediation process itself.

This study replicates and then extends Wilson and Boland's (1978) theory of the deterrent effect of policing on crime rates in American cities by linking it to recent thinking on control of urban disorder and incivilities (Sherman, 1986; Skogan and Maxfield, 1981). The theory posits that police departments with a legalistic style tend to generate policies of proactive patrol (e.g., high traffic citation rate and frequent stops of suspicious or disorderly persons), which in turn may decrease crime rates either (1) indirectly, by increasing the probability of arrest, or (2) directly, by decreasing the crime rate through a deterrent effect regarding perceived threat of social control. We test both these propositions in an examination of robbery rates in 171 American cities in 1980. Overall, the major results suggest that proactive policing has direct inverse effects on aggregate robbery rates, independent of known determinants of crime (e.g., poverty, inequality, region, and family disruption). Moreover, when we demographically disaggregate the robbery rate the direct inverse effect of aggressive policing on robbery is largest for adult offenders and black offenders. We examine the reasons for these findings and discuss their theoretical and policy implications.

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.

Drawing on C. Wright Mills' analysis of vocabularies of motive, this paper examines the ways lawyers and clients interpret and give meaning to the social behavior involved in the legal process of divorce. Based on observation of 115 law office conferences, the paper describes discussions between lawyers and clients concerning marriage failure, problems in the legal process, and planning strategy. It shows how lawyers and clients bring different agendas and views of the social world to these conversations. Those differences are considered part of the context for understanding the way professional authority is exercised and resisted. Clients reconstruct the past and explain their own behavior as well as the actions of their spouses. Lawyers avoid being drawn into that reconstruction. Their interpretive work explains the way the divorce process works and how it shapes the actions of divorcing spouses. The paper analyzes the predicaments created by these interpretations of reality and the consequences that flow from them.

The first difficulty in Eder is that the experience of academics working in the common law tradition renders us skeptical about the possibility that there could be something like an overall sociological theory of “the law.” What those in the Weberian tradition, including for these purposes Habermas, see as the law appears to us as quite a jumble of relatively discrete topics, such that the law of torts which looks different from the law of criminal procedure and, what is worse, the law of the sixth amendment's requirements with respect to counsel which looks different from the law of the sixth amendment's requirement with respect to confrontation of adverse witnesses. Nor does it seem to us that there are any readily available generalizations concerning long-term trends, as distinct from short-term variations attributable to differences among judges in their political preferences.

Previous studies of the cost of crime have focused on the out-of-pocket expenses incurred by victims. This approach significantly underestimates the cost of crime to victims by ignoring the pain, suffering, and fear caused by crime. Other studies have attempted to infer the cost of crime by estimating property value differences in high versus low crime areas. However, this approach does not permit one to determine the cost of individual crimes. The purpose of this paper is to estimate the cost of individual crimes by examining the pain, suffering, and fear endured by crime victims. Actual victim injury rates are combined with jury awards in personal injury accident cases to estimate monetary values for pain, suffering, and fear. I combine crime-related death rates with estimates of the value of life to arrive at monetary values for the risk of death. My estimate of the aggregate annual cost of crime to victims of FBI index crimes is $92.6 billion. These estimates are shown to have several direct policy applications.

The Petition Clause of the First Amendment protects any peaceful, legal attempt to promote or discourage governmental action at all governmental levels and all governmental branches. This paper describes our examination of SLAPP (strategic lawsuits against public participation) cases where citizens who contact the government are sued by the interests they oppose. We present the findings of a legal document analysis and summarize ongoing research to understand the social dynamic processes and extralegal outcomes of SLAPPs. The purposeful blend of qualitative and quantitative methods is highlighted as an appropriate approach for answering micro- and macrosociological questions involved in these cross-institutional disputes.