Nearly all of us will agree that “one case does not make a sample.” Nonetheless, there is a tendency to disregard this advice when it comes to studying the historical origins of laws concerning crime and delinquency. This is understandable since it is generally acknowledged that the micro- and macro-level processes surrounding the origins of many such laws are so complex that they can only be examined case by case (e.g., Hall, 1952; Chambliss, 1964). But such an approach creates problems: although any single case study is clearly inadequate to support generalizations, strong theoretical inferences frequently are drawn, often violating the constraints adopted with more conventional data. This essay reviews a number of North American case studies in an attempt to clarify the theoretical and methodological limitations, prospects, and findings of the literature on criminal lawmaking.

I introduce this review by contrasting the two principal theoretical perspectives that guide such studies. I then discuss problems of evidence related to these rival theories, using an analysis of the origins of theft laws as my example. Following this, I review a large number of empirical studies concerned with the origin of laws that I have grouped into three categories: (i) delinquency and probation; (ii) alcohol and drug abuse; and (iii) prostitution and sexual psychopathy. Finally, I examine the implications of these and other legislative studies for future work in this important area of research.

The transformation of law in the Yukon attendant upon the arrival of the North West Mounted Police and their successful attempt to eliminate the authority of the miners' meeting in the district is reviewed. In this instance, it appears that the symbolic as distinct from the instrumental functions of law led to the acceptance of a fundamental change in the character of local legal institutions.

This study attempted to construct and test a discretionary justice model of disciplinary response to inmate rule breaking in a medium-security prison for adult male felons (N = 182). We found, first, that while black and white inmates were equally likely to engage in rule-breaking activity, blacks were more likely to be officially reported for rule infractions. Second, a prior record of official disciplinary action, itself shown to be a product of discriminatory response, influenced subsequent sanctioning decisions, thus amplifying the racial bias. Third, analyses of separate models for black and white inmates revealed the importance of prior record to be differentially imputed on the basis of race. The study concludes with a discussion of the nature and impact of stereotypic expectations and labeling processes in the reaction of guards to inmate behavior.

The jury has been widely credited with contributing to the best elements of the American judicial system. Utilizing computerized case histories of 29,000 felony defendants in an urban trial court, this article examines an important aspect of the jury process—judicial sentencing following jury trials. The data show that the sentencing cost of pursuing constitutionally guaranteed jury trial rights is high: jury defendants are punished with substantially greater harshness than are plea and bench convictees in essentially similar criminal cases. Regardless of sentencing philosophy, virtually every judge who sentenced jury, bench, and plea defendants sentenced jury defendants far more harshly and sent them to jail more frequently. Stiffer penalties for jury defendants appears to be the operational, though unstated, judicial policy, exercised out of the apparent administrative interest in reducing the number of lengthy jury trials.

This study of bail reform in a large urban court employs an interrupted time-series research design spanning a six-year period, and examines case data for over 38,000 defendants. Two reforms—creation of a pretrial release agency and adoption of deposit bail—are evaluated to determine whether they had statistically significant impacts on the likelihood of pretrial release, the probability of financial losses for defendants, and the avoidance of bondsmen in the pretrial process. Weighted regression analysis was used to compensate for the possibility of autocorrelation in the time-series data. The reforms proved a mixed success. Explanations for these findings emphasize the role of previous policy patterns and procedural rules in restraining the scope of bail reform and the political forces encouraging the use of bail for preventive detention.

In recent years there has been substantial concern over the issue of whether the judiciary is a representative institution. Most research on the matter suggests that judges are to some degree sensitive to public opinion, but confusion exists over the process through which the public affects the courts. This research is designed to reduce the level of confusion.

Taking advantage of the quasi-experimental research design afforded by the “circuit” system of court organization used by the Iowa trial courts, this research investigates the “sharing” model of representation. In order to insure against spurious results, controls are introduced for three types of influences on sentencing decisions: defendant and case attributes, judge attributes and role orientations, and local system practices. Analysis of a path model consisting of measures of sentencing behavior, seriousness of crime in the local jurisdiction, and perceptions of crime seriousness reveals that one-sixth of the variance in sentences can be explained. However, substantial variation across judges in responsiveness to local norms is also discovered.

Further investigation of these data was undertaken to determine the factors that account for variation in the strength of environmental linkages. The analysis suggests that judges with greater contact with their constituencies, who have experienced electoral defeat, and who assume a “delegate” role orientation, are far more influenced by environmental factors.

The article concludes with some observations on how the process of recruitment and early career patterns affect representation.

The conventional model of the practice of law views lawyers as those who apply legal rules in the service of client interests, checked only by the constraints of the adversary system. A study of the impact of consumer protection laws on the practice of Wisconsin lawyers shows this to be an oversimplification. Lawyers for individuals tend to know little of the precise contours of consumer protection law. They most often serve as mediators between buyer and seller, relying on general norms of fairness and good faith. Lawyers for businesses are more likely to make use of the law, but they are seldom called on to deal with particular disputes. Lawyers' own values and interests are reflected in the way in which they represent clients. As a result, reform laws which create individual rights are likely to have only symbolic effect unless incentives are devised to make their vindication in the long-range interest of members of the bar. Moreover, an understanding of the many roles played by lawyers also requires a more expanded picture of practice. The picture of the lawyer as litigator in the adversary system may itself serve largely symbolic functions.

This article is a survey of the literature on appeal, emphasizing its significance for political regimes rather than for individual litigants.

This research tests the simulated impact of Supreme Court decisions which allow for smaller than twelve-member juries. It identifies variation in judicial output that results from competing operating structures of jury decision making. The research employed a quasi-experimental design to address important problems of simulation, such as structural and functional verisimilitude. The sample consisted of 110 juries composed of nearly 1000 jurors. The findings indicate that a jury's size affects its behavior. Larger juries hang more often than smaller ones do. The degree to which this avoids the committing of a Type I or Type II judicial error remains to be seen; nevertheless, the Court was wrong in assuming that there are no differences in the behavior of twelve- and six-member juries.

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.

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.

Post-World War II theories of modernization, including theories of law and development, have proved inadequate either to explain development and underdevelopment or to make a substantial contribution to our understanding of the role of law in underdeveloped countries. To what extent do contemporary ideas of underdevelopment and dependency in the social sciences provide the foundation for a theoretical renewal in the comparative sociology of law? To answer this question, the paper first examines the origins of these ideas and discusses the methods, presuppositions, and concepts of the principal theoretical writings on underdevelopment and dependency. It then considers two important issues raised by these writings and addressed by a number of recent studies: the relation between the state and classes, and the relationship of peasants to capitalism. This review concludes that theories of underdevelopment and dependency contribute to the reorientation of social research on law by forcing a reappraisal of previous ideologies and proposing new frameworks of analysis. But it also argues that such a reorientation must ultimately transcend those concepts by participating in the elaboration of Marxist theories of law.

The essays in this volume offer a wealth of suggestions for new directions in sociolegal research, not only about the particular subjects they themselves address but also, by analogy, about many others. Here I want to approach the task of theoretical reorientation in a different way. While these essays were in progress I had occasion to attempt a critical overview of recent American scholarship in order to identify the questions posed and assess their strengths and weaknesses. This was in no sense a systematic research effort but merely a reflection upon my experience as editor of this Review from 1976 to 1978, based upon the approximately 500 manuscripts submitted, the nearly 200 books sent for review, the proposals offered for this project, and the papers presented at the second national meeting of the Law and Society Association in Minneapolis in 1978. I would modify these views somewhat in light of work disseminated in other ways or produced during the subsequent two years, but I would not greatly alter them. I offer them here in the hope of stimulating debate on the level of metatheory, for I sense that our field is running so smoothly along familiar tracks that the questions and answers have begun to sound a comfortable, but rather boring, “clackety-clack.”