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Law and Society (Sociology)

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  1. Introduction
  2.  
  3. Law and society studies address the mutual relationship between law and society with its different actors, institutions, and processes. Law is created and put into practice through societal processes. Simultaneously law effects and affects social change. Beyond a causal relationship, law is further understood to constitute social institutions such as the polity, family, property, corporation, crime, even the individual. The study of law and other specializations in the social sciences are thus closely interwoven. Law and society studies represent a multi- and interdisciplinary field. This bibliography therefore contains references to both sociological and nonsociological literature, while its location in a sociology bibliography suggests that we privilege sociological titles. Doing so is also justified as, organizationally, law and society studies grew out of sociology, especially in the United States. Additional sociological references can be found in the Oxford Bibliographies article Sociology of Law by Mathieu Deflem. The field of law and society studies to which scholars from many disciplines such as anthropology, cultural studies, history, jurisprudence, linguistics, philosophy, sociology, and political science contribute is large. A bibliography of some 150 titles thus has to be highly selective. The authors’ specializations affected which areas to include, despite their effort to be broad; and even in these areas many powerful works had to be left out. Institutionally much work is done in the context of the Law and Society Association (LSA) and presented at its annual meetings every few years in cooperation with related associations outside the United States. Yet, much work that is pertinent to law and society studies is conducted outside the LSA, for example in criminological contexts, where criminal law and justice and their relationship with diverse societal institutions are investigated, and in the Sociology of Law section of the American Sociological Association that seeks explicitly to apply a sociological perspective on law and that consciously cultivates links with other sections dealing with issues such as gender, politics, the economy, organizations, culture, globalization, or the family. Finally, while some of the work presented here is cumulative, many old and modern classics continue to provide guidance, formulate basic questions, and constitute reference points and identities. They are very much included in this bibliography.
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  5. Journals and Collections
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  7. More journals are devoted to interdisciplinary law and society research than can be listed here. They include many journals in the realm of criminology and criminal justice that include frequent contributions in line with the discipline’s agenda. Here we list those most central to law and society studies. Annual Review of Law and Social Science is the central review series for the subdiscipline, and Law & Society Review is the leading journal in the field. Among the other most prominent journals are Law & Social Inquiry, Journal of Empirical Legal Studies, and Journal of Law & Society. The Journal of Legal Studies is also a highly regarded interdisciplinary journal.
  8.  
  9. Annual Review of Law and Social Science. 2005–.
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  11. The Annual Review of Law and Social Science publishes one volume each year with review essays on specific themes from law and society studies, authored by recognized authorities in the field. The essays provide an overview of publications on each topic, while typically focusing on specific aspects and raising prospects for future research.
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  14. Journal of Empirical Legal Studies. 2004–.
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  16. The Journal of Empirical Legal Studies is a relatively new journal, founded in 2004 by the Society for Empirical Legal Studies, with an international advisory board. The journal is devoted to empirically oriented articles in law and law-related fields from a variety of legal environments.
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  18.  
  19. Journal of Law & Society. 1974–.
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  21. The Journal of Law & Society is the leading British sociolegal studies journal. Interdisciplinary and international in nature, scholarship published in the journal addresses issues from a variety of legal cultures and includes theoretical contributions of cross-cultural interest.
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  23.  
  24. Journal of Legal Studies. 1972–.
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  26. The Journal of Legal Studies, founded in 1972, publishes interdisciplinary academic research into law and legal institutions. Emphasis is on social science approaches. Economics, political science, and psychology are most prominently reflected.
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  28.  
  29. Law & Social Inquiry. 1976–.
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  31. Law & Social Inquiry is the journal of the American Bar Foundation, a nonprofit national research institute. Promotes theoretical and empirical research on law and legal institutions. Founded in 1976 as the American Bar Foundation Journal, the journal publishes original studies on sociolegal topics including legal institutions, the legal profession, and legal history. It was renamed Law & Social Inquiry in 1988.
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  34. Law & Society Review. 1966–.
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  36. Law & Society Review, founded in 1966, publishes work about the relationship between society, law, and the legal process. The journal publishes work from a broad array of fields reflecting the disciplinary diversity of its associated membership organization, the Law and Society Association.
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  38.  
  39. Historical Traditions and Contemporary Updates
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  41. Law and society studies, like other social science–based fields, are rooted in classical sociological thought. Marxian, Durkheimian, and Weberian traditions fair prominently. The classical writing in this field has been updated and revised by more contemporary scholarship. One of the most remarkable reworking of the classics, albeit focused on penal law and control and expanding into other theoretical traditions, is Garland 1990. But also textbooks such as Sutton 2001 and Deflem 2008 typically build major sections around the classics. While these traditions originate in sociology, the legal realism school, recently updated by the empirical legal studies movement, contributes to law and society studies from its roots in jurisprudence.
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  43. Deflem, Mathieu. 2008. Sociology of law: Visions of a scholarly tradition. Cambridge, UK: Cambridge Univ. Press.
  44. DOI: 10.1017/CBO9780511815546Save Citation »Export Citation »E-mail Citation »
  45. Introductory text on the sociology of law. Chapters on Weber and Durkheim are followed by a discussion of other traditions, including sociological jurisprudence, law’s relationship to different sectors of society, and special problems.
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  47.  
  48. Garland, David. 1990. Punishment and modern society: A study in social theory. Chicago: Univ. of Chicago Press.
  49. DOI: 10.7208/chicago/9780226922508.001.0001Save Citation »Export Citation »E-mail Citation »
  50. Reviews and updates major sociological traditions and their application to penal law and its enforcement. Five chapters on Marxian, Durkheimian, and Weberian themes are supplemented by chapters on scholars such as Michel Foucault and Norbert Elias. Provides inspiring discussions on benefits and shortfalls of these traditions and suggests revisions.
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  53. Sutton, John. 2001. Law/society: Origins, interactions, and change. Thousand Oaks, CA: Pine Forge.
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  55. Introductory book into law and society studies. Part 1 focuses on the Durkheimian, Marxian, and Weberian traditions. Part 2 (on legal action and its impact) and Part 3 (on the legal profession) pick up on central themes from these classics-inspired discussions.
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  57.  
  58. Marx
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  60. Marx did not write specific treaties on the relationship between law and society. Yet, ideas relevant to this relationship are distributed all over his work, from his early paper on wood theft law in Marx 1842 through Marx 2000 and Marx and Engels 2000 to Marx 1990. Throughout, law appears as part of the superstructure that is reflective of the economic base and of class inequalities of changing societies. Marx emphasizes the role of the law in protecting private property and securing economic conditions favorable to the ruling class.
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  62. Marx, Karl. 1842. Debatten ueber das Holzdiebstahlsgesetz—von einem Rheinländer (Debates on the law on thefts of wood). Rheinische Zeitung 298 (25 October 1842).
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  64. Continued in issue numbers 300, 303, 305, and 307 (27 and 30 October; 1 and 3 November 1842). Argues against a provision before parliament to extend the prohibition on thefts of wood. The proposal included prohibition of an activity previously unregulated and recognized as a customary right, that of collecting fallen wood from private lands. The articles include the early workings of the argument that law is essentially, or increasingly, an instrument of the ruling class.
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  66.  
  67. Marx, Karl. 1990. Capital, Volume 1: A critique of political economy. Translated by Ben Fowkes. New York: Penguin Classics.
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  69. Originally published in 1867. Expands and extends the base-superstructure argument, expanding upon the way in which productive value of labor is extracted and accumulated by capitalist owners of the means of production from the laborers who sell their labor power. Elements of the superstructure, including legal rules, are controlled by the ruling class. In particular, laws about property are erected to serve the owners of the means of production.
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  71.  
  72. Marx, Karl. 2000. Manifesto of the Communist Party. Translated by Samuel Moore. In Marxists Internet Archive.
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  74. Originally published in 1848. Historical analysis of the struggle between classes, positing that the exploitation inherent in the capitalist arrangement of production is unsustainable and will result in its own undoing.
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  76.  
  77. Marx, Karl, and Friedrich Engels. 2000. The German ideology. Translated by Clemens Dutt, W. Lough, C. P. Magill, and R. Pascal. In Marxists Internet Archive.
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  79. Written in late 1846 and early 1847, this work was first published in full in 1932. Argues that person’s sense of self and meaning is derived from the ability to be productive and creative. Therefore, it is the economic experience or productive activity (base) that gives rise to ideology or meaning systems (superstructure). Increasing division of labor is accompanied by more concentrated ownership in the hands of ruling classes, who have the power to control the ideology.
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  81.  
  82. Conflict Tradition
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  84. Neo-Marxist thinkers have famously picked up on these ideas. They provide us with a strong neo-Marxist law and society studies literature. Modifying Marx, some contributors acknowledge the constitutive force of law. In addition to the discussions in Garland 1990 and Sutton 2001 (both cited under Historical Traditions and Contemporary Updates) the following classics and collections are central. Hay, et al. 1975 and Pashukanis 1978 recognized the role of law as ideology. Thompson 1975 adds that law may also bind the ruling classes. Rusche and Kirchheimer 2003 applies Marxian thought to issues of criminal punishment and its institutions. Beirne and Quinney 1982 offers a collection of Marxist thought on law. Chambliss and Seidman 1982 provides an introductory text from a more broadly conflict theoretical perspective. See also Balbus 1977 in the section Economy.
  85.  
  86. Beirne, Piers, and Richard Quinney, eds. 1982. Marxism and law. New York: Wiley.
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  88. Collection of essays presenting Marxian analysis of law and the legal system. Contributions from scholars in law and social sciences from a number of countries cover social theory, class conflict, the role of the state, and law and ideology.
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  90.  
  91. Chambliss, William, and Robert Seidman. 1982. Law, order, and power. Reading, MA: Addison-Wesley.
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  93. Analyzes law creation and application in diverse social areas. Uses conflict perspective, highlighting inherent contradictions among various group interests. Seeks to expose differences between the way the law ought to work and how it actually works. Uses dialectic process to explain reproduction as well as change in the social world.
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  95.  
  96. Hay, Douglas, Peter Linebaugh, John Rule, E. P. Thompson, and Cal Winslow. 1975. Albion’s fatal tree: Crime and society in eighteenth century England. New York: Pantheon.
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  98. Essays on the historic change during industrialization and the new rational ideology that accompanied it. Traces the shift in the attribution of rights in land from use-rights to property rights, and most notably analyzes how law as ideology helps facilitate the consent of the governed.
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  100.  
  101. Pashukanis, Evgeny B. 1978. Law and Marxism: A general theory. London: Ink Links.
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  103. Argues that the economic form, and conflict over economic matters, gives rise to the legal form. The commodity exchange nature of the capitalist economic form masks inequality embedded in the commodity. Equality before the law masks unequal relations.
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  105.  
  106. Rusche, Georg, and Otto Kirchheimer. 2003. Punishment and social structure. Edited by Dario Melossi. New Brunswick, NJ: Transaction.
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  108. New edition of the 1939 original, provides a history of criminal punishment from the Middle Ages to the middle of the 20th century. Establishes links between systems of production and modes of punishment. Law is interpreted as part of the superstructure. Melossi’s editorial introduction links the text to context and contemporary literature.
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  110.  
  111. Thompson, E. P. 1975. Whigs and hunters: The origin of the Black Act. New York: Pantheon.
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  113. Account of the Black Act. Exemplary of the Warwick group’s “flattening” of the Marxian base-superstructure concept, wherein the economy is an integrated part of an overall system of interdependent social relations. The rule of law can also be a counterbalance to unequal power relations in defense of the ordinary citizen.
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  115.  
  116. Durkheim
  117.  
  118. Like Marx, Durkheim’s classic sociological work laid basic foundation stones for law and society studies. Durkheim, too, did not write a specific volume to address issues of law and society. Instead, relevant passages are distributed across his oeuvre. They reach from arguments in Durkheim 1984 that associate different types of law with types of social organization to Durkheim 1966, which alerts us to latent functions of law, further to his essay on penal forms. They finally arrive at quite different arguments in Durkheim 1968, with its examination of symbols and rituals, albeit in less explicit reference to the law. Only lately have law and society studies thus picked up on the potential of Durkheim 1968, reformulating its arguments into powerful new theoretical frames for this study. One example is Smith 2008 with his work on punishment and culture. Classical empirical and theoretical examinations in Spitzer 1975, Cartwright and Schwartz 1973, and Erikson 1966 are listed. Garland 1990 (cited under Historical Traditions and Contemporary Updates) should also be consulted.
  119.  
  120. Cartwright, B. C., and R. D. Schwartz. 1973. The invocation of legal norms: An empirical investigation of Durkheim and Weber. American Sociological Review 38:340–354.
  121. DOI: 10.2307/2094357Save Citation »Export Citation »E-mail Citation »
  122. Analyzes data from court industrial tribunals and surveys of industrial managers in India to contrast Durkheim’s and Weber’s analyses of law. Higher structural strain from division of labor, characterized as Durkheimian, and greater court experience and lawyer presence, characterized as Weberian, both contribute to the invocation of legal norms.
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  124.  
  125. Durkheim, Émile. 1966. The rules of sociological method. Translated by Sarah A. Solovay. New York: Free Press.
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  127. Originally published in 1897. This work seeks to establish sociology as a science of the social and lays out the methodology for examining social phenomena. Explains an approach by which evidence of social structures can be observed. These are social facts, which are external to a person and which constrain behavior. Language and law are examples of social facts.
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  129.  
  130. Durkheim, Émile. 1968. The elementary forms of religious life. Translated by Joseph W. Swain. New York: Free Press.
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  132. Originally published in 1912. Less directly concerned with law, but related to the treatment of law because it focuses on the role of symbols and rituals, and is concerned with the social forces, collective experiences, and collective ideologies that tie people together and set boundaries on social behavior.
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  134.  
  135. Durkheim, Émile. 1984. The division of labor in society. Translated by W. D. Halls. New York: Free Press.
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  137. Originally published in 1893. Describes changes in the way that individuals in society are tied together. Early societies experience mechanical social solidarity, in which individuals cohere around common experiences. Societies undergoing division of labor are increasingly tied together in a form of organic solidarity in which their cohesion is based in mutual interdependence and exchange. Legal structure and penal system forms alter with differences in the basis of solidarity.
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  139.  
  140. Erikson, Kai T. 1966. Wayward Puritans: A study in the sociology of deviance. New York: Wiley.
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  142. Study of deviance in 17th-century Massachusetts, examining a Durkheimian-inspired hypothesis that deviance delineates normative boundaries of society. Explores implications for the volume of deviance a society will tolerate and how societies actually handle deviants.
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  144.  
  145. Smith, Philip. 2008. Punishment and culture. Chicago: Univ. of Chicago Press.
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  147. Reworks late Durkheimian arguments, challenging instrumentalist thought in its functionalist and critical traditions in the manner of Foucault. Building on The Elementary Forms of Religious Life, focus shifts toward irrationality, emotion, evil, pollution, meaning, and ritual. Illustrative case studies on public executions, the prison, the Panopticon, the guillotine, and the electric chair.
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  149.  
  150. Spitzer, Steven. 1975. Punishment and social organization: A study of Durkheim’s theory of penal evolution. Law & Society Review 9:613–637.
  151. DOI: 10.2307/3053341Save Citation »Export Citation »E-mail Citation »
  152. Evaluation of Durkheim’s theory of penal evolution. Challenges Durkheim as less complex societies often use mediation techniques rather than repression to settle disputes. Refutes further hypotheses related to Durkheim’s evolutionary portrayal of forms of punishment.
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  154.  
  155. Weber
  156.  
  157. Unlike other classical sociologists, Max Weber did develop a coherent text on the relationship between law and society, his “Economy and Law (Sociology of Law),” embedded in Weber 1978 and Weber 2010. Many scholars have since drawn inspiration from this work, sought to clarify arguments, and correct statements in light of newer historical and anthropological insights. References show work toward exegesis and critique, for example Trubek 1972 and Kronman 1983; need for adaptation (Ewing 1987); play on his themes (Nonet and Selznick 1978); and attempts at application to current policy issues (Savelsberg 1992).
  158.  
  159. Ewing, Sally. 1987. Formal justice and the spirit of capitalism: Max Weber’s Sociology of Law. Law & Society Review 21.3: 487–512.
  160. DOI: 10.2307/3053379Save Citation »Export Citation »E-mail Citation »
  161. Argues that Weber conceptualized formal justice and guaranteed legal rights, rather than formal legal thought, as contributing to the rise of capitalism. Critical of Kronman and others, argues that Weber foresaw the predictability brought about by formal rules, but also foretold the inevitable tension between substantive justice and formal rationality.
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  163.  
  164. Kronman, Anthony. 1983. Max Weber. Stanford, CA: Stanford Univ. Press.
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  166. Orients Weber’s theory of modernity around his treatment of law. A thorough review and interpretation of Weber that demonstrates consistency of Weber’s thought across various works and concepts, particularly in defining formal and substantive rationality.
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  168.  
  169. Nonet, Philippe, and Philip Selznick. 1978. Law and society in transition: Toward responsive law. New York: Octagon.
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  171. Develops an ideal typical model of the development of law and simultaneous shifts in organizational forms from repressive law to autonomous law to responsive law. Distinguishes the types of law along analytic dimensions, including ends of law, legitimacy, rules, reasoning, discretion, and coercion.
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  173.  
  174. Savelsberg, Joachim J. 1992. Law that does not fit society: Sentencing guidelines as a neo-classical response to the dilemmas of substantivized law. American Journal of Sociology 97.5: 1346–1381.
  175. DOI: 10.1086/229904Save Citation »Export Citation »E-mail Citation »
  176. Argues that sentencing guidelines seek to reestablish formal rationality in reaction to decades of orientation toward substantive rationales. Structural and cultural conditions challenge reformalization at the levels of society, organizations, and professions. Document utility of Weberian concepts and arguments for contemporary legal policy concerns.
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  178.  
  179. Trubek, David M. 1972. Max Weber on law and the rise of capitalism. Wisconsin Law Review 3:720–753.
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  181. Conceptually dissects Weber’s Sociology of Law, tracing emergence of legalism in Europe and lack thereof elsewhere. Explores potential and limits of Weber’s work. Addresses the “England problem.” Argues that Weber’s categories, tied to specific historical circumstances, are of limited value in analyzing contemporary economic developments.
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  183.  
  184. Weber, Max. 1978. Economy and society: An outline of interpretive sociology. Edited by Guenther Roth. 2 vols. Berkeley: Univ. of California Press.
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  186. Addresses law’s rationalization (building of logical and coherent systems of rules) and formalization (separation of legal reasoning from practical, political, economic, or ethical rationales) as part of Western rationalization. Weber is especially concerned with the relationship of this process to economic processes and forms.
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  188.  
  189. Weber, Max. 2010. Wirtschaft und Gesellschaft: Die Wirtschaft und die gesellschaftlichen Ordnungen und Maechte––Teilband 3: Recht. Vols. 22–23, Max Weber Gesamtausgabe. Edited by Werner Gephart and Siegfried Hermes. Tübingen, Germany: Mohr.
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  191. For readers of German, the most updated edition of Weber’s Sociology of Law, annotated and introduced by Werner Gephart and Siegfried Hermes.
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  193.  
  194. From Legal Realism to Empirical Legal Studies
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  196. Legal realists argued that the law is not a separate autonomous entity or system but, rather, is grounded in real human experience. In many ways, the idea that the law as it appears “on the books” is not necessarily the way the law works “in action” marks the beginning of law and society scholarship. Classic texts are in Holmes 2010 and Pound 1910. More recently, some scholars within the law and society studies tradition have called for a renewed dedication to rigorous empirical standards for research related to law and the legal system. The Journal of Empirical Legal Studies (cited under Journals and Collections) was founded out of this movement. Articles by Kritzer 2008 and Eisenberg, et al. 2006 illustrate a range of empirical data and methods employed by articles accepted to the journal.
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  198. Eisenberg, Theodore, Paula L. Hannaford-Agor, Michael Heise, et al. 2006. Juries, judges, and punitive damages: Empirical analyses using the Civil Justice Survey of state courts 1992, 1996, and 2001 data. Journal of Empirical Legal Studies 2:263–295.
  199. DOI: 10.1111/j.1740-1461.2006.00070.xSave Citation »Export Citation »E-mail Citation »
  200. Analyzes jury awards of punitive damages from thousands of trials (1992–2001) from large counties. Finds that juries and judges award punitive and compensatory damages in similar ratios. Jury trials result in greater punitive damages for financial injury cases, judge trials in greater punitive damages for bodily injury cases.
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  202.  
  203. Holmes, Oliver W. 2010. The common law. Clark, NJ: Lawbook Exchange.
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  205. Originally published in 1881. Argues that legal rules cannot be deductively derived but are created out of experiential human knowledge. Advocates using the common law system and expanding the role of the jury to introduce a “prudent man” standard of liability; and also incorporation of more science-based policy evidence in legal decision-making.
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  207.  
  208. Kritzer, Herbert M. 2008. Daubert in the law office: Routinizing procedural change. Journal of Empirical Legal Studies 5:109–142.
  209. DOI: 10.1111/j.1740-1461.2007.00120.xSave Citation »Export Citation »E-mail Citation »
  210. Examines changes in court challenges based on a new standard for evaluating the admission of scientific and other expert testimony in trials. Draws on observation and interview data and finds that the routinized use of the Daubert challenge does not address the types of controversial science the standard was designed to evaluate.
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  212.  
  213. Pound, Roscoe. 1910. Law in books and law in action. American Law Review 44:12–36.
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  215. Emphasizes the gap between formal law on the books and the law in action, or law in fact. Argues against legislation that takes the law out of the courts by creating administrative agencies to administer policies.
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  217.  
  218. Newer Theoretical Traditions
  219.  
  220. The following list does not claim completeness, but it points at some central lines of newer theoretical thought about issues of law and society studies.
  221.  
  222. Neoinstitutionalism
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  224. Early institutionalism (Selznick 1949; Selznick, et al. 1969) provided a normative account of social structure, and laid the groundwork for making new connections between the power of the law to influence normative practices in organizational life and the power of routinized everyday practices to influence the way law is formally interpreted. Subsequent work has examined the proliferation of institutionalized organizational adaptations to the law, and has developed a body of theory and research around the intersections among the formal legal system, its administrative agencies, and broader organizational life. For a recent theoretical update see Suchman and Edelman 1996 and for an application and exploration at the global level see Boyle 2005.
  225.  
  226. Boyle, Elizabeth Heger. 2005. Female genital cutting: Cultural conflict in the global community. Baltimore: Johns Hopkins Univ. Press.
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  228. Theoretical-empirical examination of perception of and responses to female genital cutting at international, national, and individual levels. Adaptation of international norms by national governments may be ceremonial and lead to change in practices only under specific conditions.
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  230.  
  231. Selznick, Philip. 1949. TVA and the grass roots. Berkeley: Univ. of California Press.
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  233. Study of the Tennessee Valley Authority describes how pragmatic efforts of the agency to respond to local opposition result in the creation of a normative structure that becomes self-reinforcing. The activity extended to broader institutional forces and shifted the original set of organizational purposes and foci.
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  235.  
  236. Selznick, Philip, Philippe Nonet, and Howard M. Vollmer. 1969. Law, society, and industrial justice. New York: Russell Sage.
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  238. Finds that organizational practices are influenced by public and formal law, but that informal normative practices evolve within organizations in response to daily internal conflicts. Norms developing within the workplace, in turn, significantly influence formal labor relations law.
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  240.  
  241. Suchman, Mark C., and Lauren B. Edelman. 1996. Legal rational myths: The new institutionalism and the law & society tradition. Law & Social Inquiry 21:903–941.
  242. DOI: 10.1111/j.1747-4469.1996.tb00100.xSave Citation »Export Citation »E-mail Citation »
  243. Reviews the seminal institutional theory by Powell and DiMaggio, targeting key theoretical insights from both institutional theory and law and society work. Suggests that these traditions can mutually benefit from adopting insights one from the other.
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  245.  
  246. Systems Theory
  247.  
  248. Newly framed system theoretical approach, focusing on the function of the legal system in reducing societal complexity according to specific legal criteria, grew mostly out of German sociology, especially Niklas Luhmann (Luhmann 1985, Luhmann 2004). Prominent among Luhmann’s younger successors is Gunther Teubner (Teubner 1993).
  249.  
  250. Luhmann, Niklas. 1985. A sociological theory of law. Translated by Elizabeth King-Utz and Martin Albrow. London: Routledge.
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  252. Originally published in 1972. Book by leading German post–World War II theorist develops a system theoretical understanding of law. Traces development from archaic to positive law. Focus is on functional specification of law and the emergence of conditional programming in positive law. Culminates in chapter on contributions of positive law to social change.
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  254.  
  255. Luhmann, Niklas. 2004. Law as a social system. Translated by Klaus A. Ziegert. Edited by Fatima Kastner, Richard Nobles, David Schiff, and Rosamund Ziegert. Oxford: Oxford Univ. Press.
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  257. Brings to English-language readers an application to law of Luhmann’s systems theory. In these texts Luhmann further develops his thoughts, offering insights into the relationships between law and other aspects of contemporary society, including politics, the economy, the media, education, and religion.
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  259.  
  260. Teubner, Gunther. 1993. Law as an autopoietic system. Oxford: Blackwell.
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  262. Building on Luhmann, develops a notion of law as an autopoietic system that establishes autonomy through self-reproduction of a communication network. The legal system’s relationship to society understood as interference with other autonomous communication networks. Seeks to recognize the autonomy of law without missing relationship of law to society.
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  264.  
  265. Critical Theory and Critical Legal Studies
  266.  
  267. Critical theory conceives of law as a product of social relations exercised by elites, thereby reflecting, constituting, and reinforcing elite interests. Rarely, however, is law portrayed as a direct instrument of elite control. Rather, social systems and structures created through social interactions are disproportionately influenced by those already possessing greater power. Works in this tradition seek to reveal the power relations embedded in the law and its execution. Critical legal studies, emerging in the late 1970s, seek to critique and delegitimize liberal legal doctrine and question the distinction between formal law and informal social processes. Feminist and critical race theory (Delgado 1995) contribute to this body of work and overlap with critical legal studies (Cardozo Law Review). Often employing techniques of deconstruction to highlight contradictions and inconsistencies in liberal narratives of political and legal systems, this work appears more often in law journals than in law and society studies journals (Tushnet 1984). The work of some authors tends toward pure critique and philosophical argument, often sitting uneasily in the sociological field for its less empirical approach to legal concepts. In the critical theory tradition Unger 1976 provides an historical comparative account of the development of a rational legal system. Habermas 1996 links Frankfurt School ideas with American pragmatism. Foucault 1977 depicts the link between science and law as a crucial disciplining mechanism in modern society. Valverde 2003 critically builds on Foucault. Santos 2002 proposes a new postmodern legal paradigm to overcome the emancipatory failings of the modernist legal framework.
  268.  
  269. Delgado, Richard, ed. 1995. Critical race theory: The cutting edge. Philadelphia: Temple Univ. Press.
  270. Save Citation »Export Citation »E-mail Citation »
  271. Collection of essays tracing development of critical race theory. Includes founding theorists (Delgado, Bell, and Freeman) and texts on race and feminist legal theory (Harris) and on deconstruction (Williams). Covers legal topics intersecting with race and power issues, including nationalism, gay/lesbian issues, legal institutions, pedagogy, feminism, and critical white studies.
  272. Find this resource:
  273.  
  274. Foucault, Michel. 1977. Discipline and punish: The birth of the prison. New York: Pantheon.
  275. Save Citation »Export Citation »E-mail Citation »
  276. Written as a genealogy of the “scientifico-legal complex,” explores increasingly rationalized society in terms of extended power relations. Explains discipline as a complex and culturally pervasive system of power exerted through categorization, definition, and organization. Decenters the idea of power, locating it in each encounter involving submission or resistance.
  277. Find this resource:
  278.  
  279. Habermas, Jürgen. 1996. Between facts and norms. Cambridge, MA: MIT Press.
  280. Save Citation »Export Citation »E-mail Citation »
  281. Addresses problems of modern states: from endangered social solidarity to loss of direction in politics. Rule of law cannot be maintained without radical democracy. Communicative action uses the rationality potential of language for social integration; modern law fills gaps in social orders whose integrative capacities have been overtaxed.
  282. Find this resource:
  283.  
  284. Santos, Boaventura de Sousa. 2002. Toward a new legal common sense: Law, globalization, and emancipation. 2d ed. London: Butterworths.
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  286. Argues that the current legal paradigm is one of modernity in crisis, and analyzes tensions between the regulatory and emancipatory promises of law. Finds that the emancipatory promises of modernity are not achievable under the increasingly regulatory tendencies of the modernist legal paradigm. Nation-state constructs no longer make sense in the increasingly and simultaneously localized and globalized world, and emancipatory struggles are not leading to new solutions. Lays out a new paradigm that seeks to overcome the tensions and that transcends nation-state boundaries in a new globalized society.
  287. Find this resource:
  288.  
  289. Special Issue: CLS2001 Symposium: Critical Legal Studies (Début de Siècle): A Symposium on Duncan Kennedy’s A Critique of Adjudication. 2001. Cardozo Law Review 22:3–4.
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  291. Special issue of the Cardozo Law Review devoted to work from a symposium on Duncan Kennedy’s book Critique of Adjudication. Kennedy’s afterword in this issue organizes legal critique into four genealogies of critique based on broader critical philosophical traditions: organicism, antinomianism, structuralism, and semiotics.
  292. Find this resource:
  293.  
  294. Tushnet, Mark. 1984. An essay on rights. Texas Law Review 62:1363–1403.
  295. Save Citation »Export Citation »E-mail Citation »
  296. Argues that rights are unstable and indeterminate. Concept of rights can be reifying. Use of rights rhetoric can be politically useless and even harmful. Rights rhetoric is only meaningful when placed within a social and legal context. Deconstruction reveals priorities and interests advanced by political or legal policy arguments.
  297. Find this resource:
  298.  
  299. Unger, Roberto Mangabeira. 1976. Law in modern society: Toward a criticism of social theory. New York: Free Press.
  300. Save Citation »Export Citation »E-mail Citation »
  301. Broad historical and comparative reevaluation of metaphysical underpinnings of law. Describes the development of rational legal system. Autonomous rational legal system of modern Western society arose as a compromise among powerful groups, thus lacks a legitimating consensus. Together with Knowledge and Politics, reexamines central questions in social theory.
  302. Find this resource:
  303.  
  304. Valverde, Marianna. 2003. Law’s dream of a common knowledge. Princeton, NJ: Princeton Univ. Press.
  305. Save Citation »Export Citation »E-mail Citation »
  306. Argues that legal regulation occurs through myriad interpretations, decisions, and actions of low-level administrators and average citizens. Decisions influence whether action will be defined in ways that places it within the regulatory or legal framework; these small decisions determine whether or not law is invoked in any given situation.
  307. Find this resource:
  308.  
  309. Feminist Legal Theory
  310.  
  311. While implicitly calling attention to gender discriminatory actions and outcomes, feminist legal theory tends to concentrate on underlying definitions of fundamental rights, principles, or seemingly neutral rationale that contribute to taken-for-granted ideas about difference between men and women. Employing critical legal studies techniques of critique and deconstruction, MacKinnon has been on the forefront of bringing feminist theory to legal studies for decades (e.g., MacKinnon 2005). Olsen 1984 uses a fundamental tension among conflicting rights, pervasive in the law, between freedom and safety to critique the very idea of using the notion of rights to address problems of sexual violence or gender inequalities. Munro 2007 critiques current theory and argues for a modest reevaluation of liberalist ideals. Hunter and Cowen 2007 provides an edited volume covering a number of important issues related to unequal substantive positions of formal-legally equal subjects in evaluating notions of choice and consent.
  312.  
  313. Hunter, Rosemary, and Sharon Cowan, eds. 2007. Choice and consent: Feminist engagements with law and subjectivity. Oxford: Routledge.
  314. Save Citation »Export Citation »E-mail Citation »
  315. Collection of feminist essays reviewing a set of theoretical problems confronted by feminist legal scholars. Organized around themes of inequality, the bifurcated nature of the female legal subject, and issues of consent and choice in legal doctrine and practice.
  316. Find this resource:
  317.  
  318. MacKinnon, Catharine A. 2005. Women’s lives, men’s laws. Cambridge, MA: Belknap.
  319. Save Citation »Export Citation »E-mail Citation »
  320. Collection of essays of more than two decades examines gender bias in law. Issues addressed include sex discrimination, sexual abuse, and prostitution. Also addresses changes in relevant areas of law.
  321. Find this resource:
  322.  
  323. Munro, Vanessa E. 2007. Law and politics at the perimeter: Re-evaluating key debates in feminist theory. Oxford: Hart.
  324. Save Citation »Export Citation »E-mail Citation »
  325. Review of prominent feminist legal theory and critique, arguing for a cautious reevaluation of liberalist ideals. Argues for the utility of Foucault’s work for its techniques of naming, condemning, and seeking ways to overcome domination. In reevaluating liberalism, particular attention is afforded the notion of respect.
  326. Find this resource:
  327.  
  328. Olsen, Frances. 1984. Statutory rape: A feminist critique of rights analysis. Texas Law Review 63:387–432.
  329. Save Citation »Export Citation »E-mail Citation »
  330. Identifies and tackles inadequacy of rights to overcome problems of sexual violence and exploitation in law. Addresses debates over the two types of rights and explores the Michael M. Supreme Court case (Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 [1981]) involving statutory rape to address the counterproductive employment of rights debate in addressing sexual violence and exploitation.
  331. Find this resource:
  332.  
  333. Economic Theory of Law
  334.  
  335. Economic theory of law blends analytic and normative arguments applying economic cost-benefit reasoning to legal processes and decisions. Classic in this tradition is Posner 2011, first published in 1972 and now in its eighth edition. A good overview is Mercuro 1989. Economic theory of law contrasts with most sociological accounts of law in society for its approach to legal reasoning from the perspective of maximizing economic efficiency. Sociological approaches critique economic theory for its neglect of the role economic power plays in influencing foundational legal rules and outcomes. For an attempt to link the law and economics approach with law and society perspectives see Donahue 1988.
  336.  
  337. Donahue, John J. 1988. Law and economics: The road not taken. Law & Society Review 22:902–926.
  338. Save Citation »Export Citation »E-mail Citation »
  339. Written from a law and economics perspective, addresses a law and society audience; argues that differences in politics, methodology, and approach have precluded the realization of mutually beneficial research between “law and economics” and “law and society” scholars. Highlighting “nonideological” tools from law and economics analysis.
  340. Find this resource:
  341.  
  342. Mercuro, N., ed. 1989. Law and economics. Boston: Kluwer Academic.
  343. DOI: 10.1007/978-94-009-1079-9Save Citation »Export Citation »E-mail Citation »
  344. Reviews application of economic principles to legal reasoning and practice; describes how to apply economic analysis to legal decision making. Approaches include the Chicago school (Posner and colleagues), public choice theory, institutional law and economics, new institutional economics, and the New Haven school.
  345. Find this resource:
  346.  
  347. Posner, Richard. 2011. The economic analysis of law. New York: Aspen.
  348. Save Citation »Export Citation »E-mail Citation »
  349. Analysis of relationship between the economy and law positing that economic logic should inform legal analysis and legislation. Suggests that judges and legislators should organize social life to maximize social wealth. An influential textbook, now in its eighth edition.
  350. Find this resource:
  351.  
  352. Donald Black’s New Behavioral Sociology of Law
  353.  
  354. Donald Black and his students occupy a particular niche within law and society studies. Black proposes a radically structural theory of law, spelling out quantities and qualities of law as functions of structural conditions such as vertical and horizontal distance between legal actors. Always elegantly formulated, his is the most radical departure from a normative understanding of law. The approach has been critiqued because it disregards interpretive dimensions and historical specifics of law. His “universal laws” are most clearly articulated in Black 2010 and skillfully applied in Black 1989 and Black 1993 and in the work of Mark Cooney (Cooney 2009), one of Black’s students.
  355.  
  356. Black, Donald. 1989. Sociological justice. New York and Oxford: Oxford Univ. Press.
  357. Save Citation »Export Citation »E-mail Citation »
  358. Builds on his The Behavior of Law to argue that the social structure of the case determines its outcome. Culminates in applied suggestions that work toward more just legal systems by correcting the social structure of the case through the foundations of legal cooperative associations, legal minimalism, and desocialization of law.
  359. Find this resource:
  360.  
  361. Black, Donald. 1993. The social structure of right and wrong. San Diego, CA: Academic Press.
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  363. Essays, chapters, and articles in which Black applies his structural theory of law. Explores issues such as vengeance, discipline, negotiation and toleration; partisan and nonpartisan forms of conflict management. Includes a chapter titled “Crime as Social Control” on offender’s interpretation of crime as self-help, in prestate and in modern societies.
  364. Find this resource:
  365.  
  366. Black, Donald. 2010. The behavior of law. Special ed. Bingley, UK: Emerald.
  367. Save Citation »Export Citation »E-mail Citation »
  368. Originally published in 1976. A modern classic, this book seeks to establish a series of scientific laws, explaining the behavior of law, the size and shape it will take, through a number of factors: stratification, morphology, culture, organization, social control, and anarchy. The theory strictly rejects concerns with meaning and interpretation.
  369. Find this resource:
  370.  
  371. Cooney, Mark. 2009. Is killing wrong? A study in pure sociology. Charlottesville: Univ. of Virginia Press.
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  373. Masterfully apples Black’s theory to the topic of killing. Explores different dimensions of social life (vertical, organizational, radial, normative, cultural, relational) that determine if killings are defined as social “wrongs” or even as crimes. Draws on rich array of empirical materials for many different societies and historic eras.
  374. Find this resource:
  375.  
  376. Legal Institutions and Processes
  377.  
  378. Some of the early work in law and society studies concentrated on the internal workings of the formal legal system, analyzing the fairness or consistency of judicial decision making or the activities of police, prosecutors, defense attorneys, and juries. These analyses continue today, but within the sociological tradition, as Friedman 1975 suggests, they are increasingly focused on how elements of the formal legal system both influence, and are influenced by, other aspects of society. Cited here are influential early works or sociologically informed pieces that provide a sampling of the range of research concentrating on formal legal institutions.
  379.  
  380. Friedman, Lawrence. 1975. The legal system: A social science perspective. New York: Russell Sage.
  381. Save Citation »Export Citation »E-mail Citation »
  382. Argues for society-centered view of the legal system. Rather than study internal operations of law, research should emphasize how law influences society and how society influences the law. Legal culture converts interests to demands, and through the process of this conversion, power and influence press upon the legal system.
  383. Find this resource:
  384.  
  385. Courts
  386.  
  387. A rich literature on courts is here selectively illustrated by references to Rosenberg 1991, examining the limits of courts in the pursuit of social reform; Feeley 1983 examining the embeddedness of courts in complex and loosely coupled systems; and Jacob, et al. 1996 providing a comparative analysis of courts in five countries along a set of analytic dimensions. Other aspects of courts are explored in literatures on specific processes such as sentencing (see Sentencing).
  388.  
  389. Feeley, Malcolm. 1983. Court reform on trial: Why simple solutions fail. New York: Basic Books.
  390. Save Citation »Export Citation »E-mail Citation »
  391. Describes the criminal justice system as fragmented, loosely coupled, and tension ridden. Simple solutions consequently fail due to unintended and counterproductive consequences of reform effort. Core chapters document these points for the cases of bail reform, pretrial diversion, sentencing reform, and speedy trial rules.
  392. Find this resource:
  393.  
  394. Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders. 1996. Courts, law & politics in comparative perspective. New Haven, CT: Yale Univ. Press.
  395. Save Citation »Export Citation »E-mail Citation »
  396. Compares intersection between politics and legal practice in five countries: the United States, England, France, Germany, and Japan. The focus is on policymaking, social control, and legitimation. Each author analyzes a country of his or her expertise along a set of common analytic dimensions.
  397. Find this resource:
  398.  
  399. Rosenberg, Gerald N. 1991. The hollow hope: Can courts bring about social change? Chicago: Univ. of Chicago Press.
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  401. Challenges the idea that courts substantially affect social justice reform, especially when constrained by delayed processing and lack of implementation powers. Action that seems to result from reformative court decisions would have taken similar form with or without the sea-changing court decision. Reviews civil rights, abortion, and environmental litigation cases.
  402. Find this resource:
  403.  
  404. Sentencing
  405.  
  406. The literature on sentencing as a consequential decision in criminal courts has focused on the potential for disparities and discrimination, especially along racial, ethnic, and class lines. Recent decades have seen a focus on sentencing decisions under conditions of sentencing guidelines, with a particular interest in the effect of guidelines on sentencing disparities. One tradition, advanced during funding programs under the Carter administration and in reaction to the Watergate scandal of the Nixon era, focuses on the sentencing of white-collar offenders. Wheeler, et al. 1982 diagnoses a surprising correlation between status and harshness of sentences among white-collar offenders. Hagan and Parker 1985 shows that particular classes of white-collar offenders are processed through legal channels other than criminal law, filtering out the most powerful perpetrators (see also Mann 1985, cited under Policing, Prosecution, Defense, and Juries). Ulmer and Kramer 1996 is an example of a rich series of studies by these authors that examine the effect of court communities on sentencing under conditions of sentencing guidelines. Other studies find a strong role of official criteria for the outcome of sentencing decisions under guidelines, but also effects of organizational context and concerns with court efficiency on sentencing outcomes (Dixon 1995; Engen and Steen 2000) and remnants of disparities that are at least partly attributed to the tension between structured sentencing decisions and prosecutorial discretion (Steffensmeier and Demuth 2000).
  407.  
  408. Dixon, Jo. 1995. The organizational context of sentencing. American Journal of Sociology 100.5: 1157–1198.
  409. DOI: 10.1086/230635Save Citation »Export Citation »E-mail Citation »
  410. Examines sentencing outcomes in seventy-three Minnesota counties to test three theoretical approaches to sentencing. Finds that legal variables influence outcomes irrespective of organizational context, but that plea effects are influenced by the level of court bureaucracy. Also finds that sentencing guidelines help alleviate differences in sentencing attributable to race.
  411. Find this resource:
  412.  
  413. Engen, Rodney, and Sarah Steen. 2000. The power to punish: Discretion and sentencing reform in the war on drugs. American Journal of Sociology 105.5: 1357–1395.
  414. DOI: 10.1086/210433Save Citation »Export Citation »E-mail Citation »
  415. Analyzes court responses to reforms under sentencing guidelines in Washington State from 1986 to 1995. Finds that courts are concerned with maintaining a model of organizational efficiency and adapt accordingly.
  416. Find this resource:
  417.  
  418. Hagan, John, and Patricia Parker. 1985. White-collar crime and punishment: The class structure and legal sanctioning of securities violations. American Sociological Review 50:302–316.
  419. DOI: 10.2307/2095541Save Citation »Export Citation »E-mail Citation »
  420. Finds relevance of recognizing class position as conceptualized in relational rather than gradational terms, based on empirical analysis of Canadian data. Focuses on criminal versus noncriminal statutes, finding that capital owners are more likely channeled through the latter.
  421. Find this resource:
  422.  
  423. Steffensmeier, Darrell, and Stephen Demuth. 2000. Ethnicity and sentencing outcomes in U.S. federal courts: Who is punished more harshly? American Sociological Review 65.5: 705–729.
  424. DOI: 10.2307/2657543Save Citation »Export Citation »E-mail Citation »
  425. Examines racial and ethnic differences in federal sentencing. Despite consistency in application of sentencing criteria under sentencing guidelines, significant effects of race/ethnicity remain; Hispanics face the most severe penalties. Interprets pattern as outcome of tension between the structuring of sentencing processes and the simultaneous permission of judicial and prosecutorial discretion.
  426. Find this resource:
  427.  
  428. Ulmer, Jeffery T., and John H. Kramer. 1996. Court communities under sentencing guidelines: Dilemmas of formal rationality and sentencing disparity. Criminology 34.3: 383–408.
  429. DOI: 10.1111/j.1745-9125.1996.tb01212.xSave Citation »Export Citation »E-mail Citation »
  430. Studies encounter between formal rational sentencing standards imposed by guidelines and substantive, extralegal criteria. Statistical and qualitative data show effects of extralegal factors on three county courts’ sentencing outcomes. Substantive rational sentencing criteria are intertwined with defendants’ exercise of their right to trial, their race and gender.
  431. Find this resource:
  432.  
  433. Wheeler, Stanton, David Weisburd, and Nancy Bode. 1982. Sentencing the white collar offender: Rhetoric and reality. American Sociological Review 47.5: 641–659.
  434. DOI: 10.2307/2095164Save Citation »Export Citation »E-mail Citation »
  435. Examines sentencing patterns against white-collar offenders in federal court. Identifies predictive power of seriousness of offense and character of defendant. Likelihood of incarceration increases with the defendants’ status. Attributes this effect to reactions to Watergate and chances of high-status white-collar cases to progress to the sentencing stage.
  436. Find this resource:
  437.  
  438. Policing, Prosecution, Defense, and Juries
  439.  
  440. Courts and judges do not work in isolation. They are part of a loosely coupled system in which other actors affect court dockets and are affected by the courts’ decisions. A classic study on policing in the rule of law context is Skolnick 1966. Kupchik 2006 is an influential study, examining prosecutorial behavior in the context of juvenile justice, and Mann 1985 examines defense work for cases of white-collar crime. A relatively early development was the study of juries. It evolved in the context of a Ford Foundation–funded project at the University of Chicago supporting interdisciplinary study of institutions, including the jury system. Much of this work has been carried out by psychologists. Early studies in this area concentrated on the evaluation of jury decisions with respect to the facts of a case, the activity of the attorneys, and so on. In the 1970s and 1980s, more rigorous study of jury behavior was undertaken through surveys, interviews, shadow juries, and jury simulations. Classic studies in Kalven and Zeisel 1971 are followed by a new generation of work on real juries as reviewed in Diamond and Rose 2005.
  441.  
  442. Diamond, Shari Seidman, and Mary R. Rose. 2005. Real juries. Annual Review of Law and Social Science 1.1: 255–284.
  443. DOI: 10.1146/annurev.lawsocsci.1.041604.120002Save Citation »Export Citation »E-mail Citation »
  444. Review article provides overview of research that examines real juries (as opposed to experimental settings). Lays out the paths that need to be taken next (in terms of scholarship and policy). Main sections address literatures on the selection of juries, jury verdicts, and processes of jury decision making.
  445. Find this resource:
  446.  
  447. Kalven, Harry, Jr., and Hans Zeisel, with the collaboration of Thomas Callahan and Philip Ennis. 1971. The American jury. Boston: Little, Brown.
  448. Save Citation »Export Citation »E-mail Citation »
  449. Originally published in 1966. Describes findings from a classic study that investigated how different juries and judges would decide identical cases. Analysis is based on an examination of 3,576 jury trials. The study culminates in a general theory of jury decision making.
  450. Find this resource:
  451.  
  452. Kupchik, Aaron. 2006. Judging juveniles: Prosecuting adolescents in adult and juvenile court. New York: New York Univ. Press.
  453. Save Citation »Export Citation »E-mail Citation »
  454. Compares empirically how adolescents are prosecuted in juvenile and adult courts. Analysis reveals contradictions between cultural understandings of juveniles and their offending with notions of criminal courts. Concludes that juvenile courts are the appropriate institutions to process juvenile offenders with their particular needs.
  455. Find this resource:
  456.  
  457. Mann, Kenneth. 1985. Defending white-collar crime: A portrait of attorneys at work. New Haven, CT: Yale Univ. Press.
  458. Save Citation »Export Citation »E-mail Citation »
  459. Empirical examination of defense practices in white-collar crime cases. Lawyers focus on controlling information about their clients, especially the flow of harmful information to government investigators, thus frequently avoiding formal charges. Documents selectivity of cases that reach later stages of the criminal justice process.
  460. Find this resource:
  461.  
  462. Skolnick, Jerome H. 1966. Justice without trial: Law enforcement in democratic society. New York: Wiley.
  463. Save Citation »Export Citation »E-mail Citation »
  464. Classical study of policing, demonstrates how value conflicts of democratic society pose challenges to police in responding to the rule of law. Police behavior is examined in areas such as traffic violations, prostitution, and narcotics. Focus on police officers’ “working personality,” attitudes toward criminal law, operational environment, and uses of discretion.
  465. Find this resource:
  466.  
  467. The Disputing Process and Dispute Resolution
  468.  
  469. The community of scholars represented in this section organizes work around the study of alternative forms of dispute resolution. Often these activities are possible only within the formal legal framework. Mnookin and Kornhauser 1979 is arguably the catalyst for work on alternative dispute resolution (ADR). ADR has been conceived and is often still studied as a critique of the formal system, but mixed perspectives have emerged about the extent to which the participation of traditional formal legal actors in ADR, such as lawyers and judges, is necessary or desirable. Felstiner, et al. 1981 describes the process by which informal complaints are transformed into formal legal disputes. This work is related to more recent developments in the study of legal consciousness (see Legal Consciousness). Macaulay 1963 demonstrates the preference among business people to settle disputes outside of courts. Merry 1979 examines the various processes by which complaints become legal disputes, but also attends to factors that render the legal system ineffective in resolving disputes.
  470.  
  471. Felstiner, William L. F., Richard L. Abel, and Austin Sarat. 1981. The emergence and transformation of disputes: Naming, blaming, claiming . . . Law & Society Review 15.3–4: 631–654.
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  473. Describes how interactions are transformed into disputes through identifying actions as injurious (naming), other parties as responsible (blaming), and demanding a reaction or creating a dispute (claiming). Reviews the roles of legal and justice system agents in slowing or encouraging the emergence and transformation of activities into disputes.
  474. Find this resource:
  475.  
  476. Macaulay, Stewart. 1963. Non-contractual relations in business: A preliminary study. American Sociological Review 28.1: 55–67.
  477. DOI: 10.2307/2090458Save Citation »Export Citation »E-mail Citation »
  478. Finds that entrepreneurs avoid courts when possible because business consists of ongoing interactions with others. Taking disputes to court would interfere with good business relationships. Consistent with Weber’s observations. Subsequent studies identified contingencies that could interfere with the preference for settling matters outside the legal system.
  479. Find this resource:
  480.  
  481. Merry, Sally Engle. 1979. Going to court: Strategies of dispute management in an American urban neighborhood. Law & Society Review 13.4: 891–925.
  482. DOI: 10.2307/3053149Save Citation »Export Citation »E-mail Citation »
  483. Analyzes disputing activity in an urban neighborhood; parties use law to solve interpersonal and criminal disputes. Rather than solve disputes, however, going to court is often the sanction. Inadequate solutions lead parties to return to disputes and settle them through violence, through avoidance, or by enduring continued harm.
  484. Find this resource:
  485.  
  486. Mnookin, Robert H., and L. Kornhauser. 1979. Bargaining in the shadow of the law: The case of divorce. Yale Law Journal 88:950–997.
  487. DOI: 10.2307/795824Save Citation »Export Citation »E-mail Citation »
  488. Argues that formal law creates framework within which legal claimants engage in “private ordering” of disputes. Identifies gaps in research about informal negotiations and about influence of formal decision rules (“court as audience”) on informal negotiation and outcomes. Catalyst for a larger research program on alternative dispute resolution.
  489. Find this resource:
  490.  
  491. The Legal Profession
  492.  
  493. A number of works in the law and society tradition examine the social processes surrounding the legal profession. These works include analyses of socialization into the profession; growth and change in law firm structure and practices; and, as always, power differentials among actors and groups in the field.
  494.  
  495. Professionalization, Careers, and Firms
  496.  
  497. Work in this area focuses on the changing structure of the law firm over time, the professionalization of lawyers, and the intersections between these phenomena. Galanter and Palay 1991, Nelson 1988, and Seron 1996 emphasize firm structure in their work, but do so to help explain and examine its influence on the profession more generally. Other works cited in this section focus on professionalization issues ranging from law school ranking and legal training (Espeland and Sauder 2007) to handling misconduct (Arnold and Hagan 1992) to lawyer influence on state policy (Halliday 1987). Two works by Abel, one monograph (Abel 1989) and one edited volume (Abel and Lewis 1989) tackle a broad overview of lawyer practices.
  498.  
  499. Abel, Richard L. 1989. American lawyers. New York: Oxford Univ. Press.
  500. Save Citation »Export Citation »E-mail Citation »
  501. Account of dramatic changes in the American legal profession over the past century. Discusses many aspects of the professionalization project, including efforts and changes in practices for producing and educating lawyers, controlling entry to the profession, creating demand for legal services, self-regulation, and differentiating legal statuses and roles.
  502. Find this resource:
  503.  
  504. Abel, Richard L., and Philip S. C. Lewis, eds. 1989. Lawyers in society: Comparative theories. Edited papers from a conference held in Bellagio, Italy, 16–21 July 1984. Berkeley: Univ. of California Press.
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  506. Third of three volumes, borne out of a working group for the study of legal professions in the International Sociological Association. The first two volumes comprise reports on seven common law and eleven civil law countries; the third volume contains eleven comparative and theoretical essays based on the national reports.
  507. Find this resource:
  508.  
  509. Arnold, Bruce L., and John Hagan. 1992. Careers of misconduct: The structure of prosecuted professional deviance among lawyers. American Sociological Review 57.6: 771–780.
  510. DOI: 10.2307/2096122Save Citation »Export Citation »E-mail Citation »
  511. Event history analysis of misconduct complaints against lawyers indicates that misconduct complaints against solo-practitioners are relatively likely to result in prosecution. Levels of experience, position within professional status hierarchy, and economic cycles influence the likelihood of moving claims through the profession’s self-regulating conduct review system.
  512. Find this resource:
  513.  
  514. Espeland, Wendy, and Michael Sauder. 2007. Rankings and reactivity: How public measures recreate social worlds. American Journal of Sociology 113.1: 1–40.
  515. DOI: 10.1086/517897Save Citation »Export Citation »E-mail Citation »
  516. Examines consequences of public measures of rankings for law schools. Explores mechanisms that produce reactivity, self-fulfilling prophecy and commensuration, and effects generated by reactivity. Reactivity to rankings encourages greater emphasis on LSAT scores, attention to student placement, and strategies to game the ranking system.
  517. Find this resource:
  518.  
  519. Galanter, Marc, and Thomas M. Palay. 1991. Tournament of lawyers: The transformation of the big law firm. Chicago: Univ. of Chicago Press.
  520. Save Citation »Export Citation »E-mail Citation »
  521. Proposes a theory of exponential growth among large law firms resulting from an entrenched “promotion to partnership” tournament model. Describes how promotional practices preserve loyalty among new associates while enabling an extension of human capital among partners. Rich and thorough description of the rise of large corporate-style law firms.
  522. Find this resource:
  523.  
  524. Halliday, Terence C. 1987. Beyond monopoly: Lawyers, state crisis, and professional empowerment. Chicago: Univ. of Chicago Press.
  525. Save Citation »Export Citation »E-mail Citation »
  526. Using survey data and archival information about Chicago Bar Association activities during three state crises, establishes a pattern of professional empowerment. Explains the conditions under which legal professions bring their expertise to the state.
  527. Find this resource:
  528.  
  529. Nelson, Robert L. 1988. Partners with power: The social transformation of the large law firm. Berkeley: Univ. of California Press.
  530. Save Citation »Export Citation »E-mail Citation »
  531. Describes rapid growth of large law firms in Chicago. Unlike relationships between small practices and their clients, relationships between large law firms and their corporate clients are ongoing and entrenched. As legal needs of corporations expand, lawyers take on partners in order to diversify their expert base to serve these clients.
  532. Find this resource:
  533.  
  534. Seron, Carroll. 1996. The business of practicing law: The work lives of solo and small-firm attorneys. Philadelphia: Temple Univ. Press.
  535. Save Citation »Export Citation »E-mail Citation »
  536. Identifies two styles of practice among solo and small firm lawyers. “Traditionalists” value autonomy, independence, and client-service, and rely upon community connections for business generation. “Entrepreneurs” are more business and market oriented, embracing new advertising strategies and technologies, giving them an advantage in the new economy
  537. Find this resource:
  538.  
  539. Race, Class, and Gender in the Legal Profession
  540.  
  541. Work in this area describes the relatively recent entrance of minorities, women, and lower-status individuals into the legal profession. Much of the work builds on previous publications detailing the status-differentiated social structure of law firms. Works in this area typically find that late entrants to the profession have been accommodated within the lower strata of the legal field, and that even when they occupy higher-status positions, females, blacks, and people from low-status backgrounds earn less and wield less power or influence. Cappell 1990 addresses the position of African American lawyers. Gender disparities are addressed in Dinovitzer, et al. 2009; Dixon and Seron 1995; and Hagan and Kay 1995. Heinz and Laumann 1982 is a classic broad structural overview and was updated in Heinz, et al. 2005; Ladinsky 1963 is an early example for law and society studies concerns with this issue.
  542.  
  543. Cappell, C. L. 1990. The status of black lawyers. Work and Occupations 17.1: 100–121.
  544. DOI: 10.1177/0730888490017001005Save Citation »Export Citation »E-mail Citation »
  545. Reviews changes in numbers and proportion of black lawyers and judges. Despite significant growth in early 1970s and 1990, percentage of blacks in the bar did not approach proportionality and blacks were less well represented in higher-status legal positions; best representation in urban areas with a strong black electorate.
  546. Find this resource:
  547.  
  548. Dinovitzer, Ronit, Nancy J. Reichman, and Joyce S. Sterling. 2009. The differential valuation of women’s work: A new look at the gender gap in lawyers’ incomes. Social Forces 88.2: 819–864.
  549. DOI: 10.1353/sof.0.0260Save Citation »Export Citation »E-mail Citation »
  550. Focusing on gendered pay differentials and differences in the valuation of women’s skills and compensation effects of differential selection into various career trajectories and types of legal specialization. Net of credentials, work profiles, opportunity paths, structures, and legal markets, men earn 5.2 percent more than women. Reviews other work.
  551. Find this resource:
  552.  
  553. Dixon, Jo, and Carroll Seron. 1995. Stratification in the legal profession: Sex, sector, and salary. Law & Society Review 29.3: 381–412.
  554. DOI: 10.2307/3053972Save Citation »Export Citation »E-mail Citation »
  555. Survey-based study of effects of training, family characteristics, and legal sector and specialization on gender salary differences. Men receive higher returns than women for educational credential and for academic performance, men receive a return on marriage that women do not, sector segmentation contributes to gendered salary differences.
  556. Find this resource:
  557.  
  558. Hagan, John, and Fiona Kay 1995. Gender in practice: A study of lawyers’ lives. New York: Oxford Univ. Press.
  559. Save Citation »Export Citation »E-mail Citation »
  560. Survey data indicate that differentiation in the organizational structure and hierarchy of legal practice coincided with women’s entry; women have thus been held disproportionately in lower-status positions within the legal profession. Differences in women’s outcomes are (only) partly attributable to choices women make about balancing work and family.
  561. Find this resource:
  562.  
  563. Heinz, John P., and Edward O. Laumann. 1982. Chicago lawyers: The social structure of the bar. New York: Russell Sage.
  564. Save Citation »Export Citation »E-mail Citation »
  565. Finds that practice in large versus small law firms constitutes two distinct occupations within the legal profession. Differentiation arises from differences in the client base of corporations or governments versus individuals, affecting prestige, income, associational networks, and autonomy of the distinct lawyering practices.
  566. Find this resource:
  567.  
  568. Heinz, John P., Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann. 2005. Urban lawyers: The new social structure of the bar. Chicago: Univ. of Chicago Press.
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  570. Updates and extends findings from Chicago Lawyers to account for changes in the structure of the bar and the increasing presence of women and minorities. Increasing overall size of the bar, increased set of corporate clientele, and the altered demographic profile of members of the legal professions have led to changes in the social structure, particularly contributing to an increasingly stratified professional organization.
  571. Find this resource:
  572.  
  573. Ladinsky, Jack. 1963. Careers of lawyers, law practice, and legal institutions. American Sociological Review 28.1: 47–54.
  574. DOI: 10.2307/2090457Save Citation »Export Citation »E-mail Citation »
  575. Early work on legal occupations and stratification within the lawyer population. Identifies contributors to stratification within the profession that have persisted in subsequent work. In particular, differences in the population between lower-status solo practitioners and higher-status firm lawyers are attributable to family background status and elite academic training.
  576. Find this resource:
  577.  
  578. Levels of Law
  579.  
  580. Law, broadly understood, is practiced at different levels of social organization. Anthropologists have built an impressive record of research on law in nonstate societies. Sociologists have studied the practice of law within formal organizations. The building of international legal norms and institutions has most recently attracted the attention of law and society studies scholars from diverse disciplines. The most common and familiar line of research is, of course, at the level of state law that most works in the majority of sections of this bibliography address, and that is thus not addressed in a separate section under this heading.
  581.  
  582. Nonstate
  583.  
  584. Many classical studies, primarily conducted by anthropologists, are entailed in the collections Nader and Todd 1978 and Bohannan 1977. Moore 1986 is an illustration of a more recent line of research. Much of the law investigated in these studies, while practiced in nonstate contexts, is nevertheless practiced in the context of colonial rule. State law is thus not completely absent, and nonstate practices are often conducted “in the shadow” of state courts.
  585.  
  586. Bohannan, Paul. 1977. Law & warfare: Studies in the anthropology of conflict. Austin: Univ. of Texas Press.
  587. Save Citation »Export Citation »E-mail Citation »
  588. Contains many classic studies from social and cultural anthropology by scholars such Robert Redfield, Leopold Pospisil, Max Gluckman, Laura Nader, Paul Bohannan, and E. Adamson-Hoebel. Cases from the Americas, Europe, Africa, and Asia are included. Studies examine different forms of conflict resolution, among which law is one alternative to war.
  589. Find this resource:
  590.  
  591. Moore, Sally Falk. 1986. Social facts & fabrications: “Customary” law on Kilimanjaro, 1880–1980. Cambridge, UK: Cambridge Univ. Press.
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  593. Examines how “customary” law has evolved. Reviews 19th-century conditions and analyzes economic and political transformations in the context of colonial rule. Examines legal history of a localized group in contemporary Tanzania. Law in the life of the people and law in the local courts differ and coexist.
  594. Find this resource:
  595.  
  596. Nader, Laura, and Harry F. Todd. eds. 1978. The disputing process: Law in ten societies. New York: Columbia Univ. Press.
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  598. Ethnographic accounts of village law arising out of Nader’s Berkeley Village Law Project. All accounts emphasize how disputes arise and are defined (or not) as salient. Provides a breadth of alternative approaches to settling disputes and fuel for considering the unique structure of the taken-for-granted aspects of Western legal systems.
  599. Find this resource:
  600.  
  601. Organizational
  602.  
  603. Work on the reach of law in the organizational environment grows out of institutionalism and has emphasized how organizational governance in modern society increasingly takes on a legal form; that is, internal organizational governance structures mimic the formal legal system (Dobbin and Sutton 1998; Sutton, et al. 1994). Internal organizational structures and policies erected to extend regulatory governance into the organizational setting feeds back into the formal legal system (Morrill 1995), thus making the law endogenous (Edelman and Suchman 1997). Additional work about other aspects of the intersection between organizations and the law is presented in a later section Organizations.
  604.  
  605. Dobbin, Frank, and John R. Sutton. 1998. The strength of a weak state: The rights revolution and the rise of human resources management divisions. American Journal of Sociology 104.2: 441–476.
  606. DOI: 10.1086/210044Save Citation »Export Citation »E-mail Citation »
  607. Finds that legal changes stemming from equal employment opportunity, occupational health and safety, and benefits regulation helped spawn departments within firms devoted to legal regulatory compliance with these laws. Once established, these offices became self-justifying in economic terms and ushered in the new human resources paradigm.
  608. Find this resource:
  609.  
  610. Edelman, Lauren B., and Mark C. Suchman. 1997. The legal environments of organizations. Annual Review of Sociology 23:479–515.
  611. DOI: 10.1146/annurev.soc.23.1.479Save Citation »Export Citation »E-mail Citation »
  612. Review of key perspectives within a body of work connecting organizational and socio-legal theory. Emphasizes a key theme in this body of work as the reciprocal relationship (endogeneity) between law and organizations. Heavily influenced by neoinstitutionalism, the review organizes the body of work into regulative, normative, and cognitive organizational environments.
  613. Find this resource:
  614.  
  615. Morrill, Calvin. 1995. The executive way: Conflict management in corporations. Chicago: Univ. of Chicago Press.
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  617. Study of corporate conflict management based on interviews of more than two hundred corporate executives. Describes how the strength of the hierarchical structure and the types of issues around which conflict arises influence the style of conflict management.
  618. Find this resource:
  619.  
  620. Sutton, John R., Frank Dobbin, John W. Meyer, and W. Richard Scott. 1994. The legalization of the workplace. American Journal of Sociology 99.4: 944–971.
  621. DOI: 10.1086/230368Save Citation »Export Citation »E-mail Citation »
  622. Neoinstitutionalist analysis of more than three hundred organizations analyzing the adoption of disciplinary hearings and grievance procedures. These legal forms arose in response to government equal employment opportunity regulation. The human relations professions, however, constructed the meaning of compliance within their areas of control.
  623. Find this resource:
  624.  
  625. International
  626.  
  627. Works in this area examine the social processes and national legal environments shaping the emerging system of global governance. Works cover a range of substantive legal matters from commercial business regulation (Braithwaite and Drahos 2000; Dezalay and Garth 1996; Halliday and Carruthers 2009) to human rights and democracy (Fourcade and Savelsberg 2006; Hagan 2003; Rosen 2000). Together they constitute a rich collection of insights into the international norm development, rule setting, and regulatory activities, highlighting influential people, networks, governments, normative scripts, as well as symbolic and material resources.
  628.  
  629. Braithwaite, John, and Pater Drahos. 2000. Global business regulation. Cambridge, UK: Cambridge Univ. Press.
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  631. Provides a legal survey of the impact of globalization on regulatory arenas through case studies of more than thirteen global industries. Recommends transnational regulatory strategies directed at facilitating social democratic outcomes. Analyzes the way that normative underpinnings of global regulatory principles operate even in the absence of enforcement mechanisms.
  632. Find this resource:
  633.  
  634. Dezalay, Yves, and Bryant G. Garth. 1996. Dealing in virtue: International commercial arbitration and the construction of a transnational legal order. Chicago: Univ. of Chicago Press.
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  636. Analyzes and describes the role of law and lawyers in the emerging field of international commercial arbitration. Argues that players in the legal field, in competing for the business of arbitration activity, leverage symbolic resources to construct and maintain the legitimacy of international commercial arbitration as “private justice.”
  637. Find this resource:
  638.  
  639. Fourcade, Marion, and Joachim J. Savelsberg, eds. 2006. Forum: Law between the global and the local. Law & Social Inquiry 31.3: 513–616.
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  641. Contributions by Marion Fourcade and Joachim Savelsberg on theoretical issues; Bruce Carruthers and Terence Halliday on bankruptcy law; and John Hagan, Ron Levi, and Gabrielle Ferrales on the International Criminal Tribunal for the former Yugoslavia.
  642. Find this resource:
  643.  
  644. Hagan, John. 2003. Justice in the Balkans: Prosecuting war crimes in the Hague Tribunal. Chicago: Univ. of Chicago Press.
  645. DOI: 10.7208/chicago/9780226312309.001.0001Save Citation »Export Citation »E-mail Citation »
  646. In-depth analysis of the International Criminal Tribunal for the Former Yugoslavia. Examines parties involved, their motivations, and how they influenced the tribunal. Examines the distinct forms of capital brought to bear by subsequent chief prosecutors. Illustrates process through cases such as the Srebrenica investigation and the Focca rape trial.
  647. Find this resource:
  648.  
  649. Halliday, Terrence C., and Bruce G. Carruthers. 2009. Bankrupt: Global lawmaking and systemic financial crisis. Stanford, CA: Stanford Univ. Press.
  650. Save Citation »Export Citation »E-mail Citation »
  651. Study of how global corporate bankruptcy law developed from the 1990s to the 2008 financial crisis. Details how institutions, networks, and governments created new global and national norms through formal and informal practices. Cases from Indonesia, Korea, and China illustrate patterns of divergence, despite a global institutional goal of harmonization.
  652. Find this resource:
  653.  
  654. Rosen, Robert Eli, ed. 2000. Symposium on law, democracy, and society. Law and Social Inquiry 25.4.
  655. Save Citation »Export Citation »E-mail Citation »
  656. Includes articles about law’s legitimation processes and how they influence democracy and democratization, institutionalization of the rule of law, and the relationship between crime and democracy. Covers topics such as deference to legal authority in multicultural settings (Tyler) and democracy and governance through crime and crime control activity (Simon).
  657. Find this resource:
  658.  
  659. Law and Other Societal Realms and Themes
  660.  
  661. Law can only be understood in its interaction with other societal sectors. Law is often understood to constitute other institutions of social life. These links can be explored for virtually all sectors of social life. For the areas of law in its relationship to religion, politics, and the family we offer just one example for marriage law (Hull 2006). We then pick several areas to provide exemplary selections for the cases of organizations, culture and collective memory, the economy, markets, property rights, science and technology, social inequality, and human rights.
  662.  
  663. Hull, Kathleen. 2006. Same-sex marriage: The cultural politics of love and law. Cambridge, UK: Cambridge Univ. Press.
  664. DOI: 10.1017/CBO9780511616266Save Citation »Export Citation »E-mail Citation »
  665. Interview data, participant-observation of commitment rituals, and content analysis of public debates show how cultural and legal aspects of marriage intersect; law carries cultural power beyond the material benefits afforded by rights and protections; and couples actively seek such cultural legitimacy. Marital rituals as a type of political action.
  666. Find this resource:
  667.  
  668. Organizations
  669.  
  670. Work in this section is an extension of the Organizational Law observation (see Organizational) that organizations adopt legal structures within their own bureaucratic ones. Edelman and colleagues have developed a rich and extensive body of work in this area (e.g., Edelman, et al. 1992; Edelman, et al. 1999). The work here argues that the structure and form of law is mobilized as a resource for claiming professional jurisdiction over work activities or for conferring legitimacy on organizational management activity. In addition, work in this area has focused on how the law is continually interpreted by local actors (often professionals in managerial and administrative roles) as it is being implemented. In fact, the interpretive action that takes place within organizations (“law on the ground” or “law in action”) can feed back into the formal law “on the books,” even to the point of altering the original intent of law altogether (Dobbin 2009, Kelly 2003). Heimer and Staffen 1998 speaks to the competition of law with other institutional realms in organizational contexts for the case of hospitals. Kelly 2003 provides a more nuanced portrait of regulatory noncompliance.
  671.  
  672. Dobbin, Frank. 2009. Inventing equal opportunity. Princeton, NJ: Princeton Univ. Press.
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  674. Builds on larger body of work––his own and that of others––describing how many aspects of the formal legal interpretation of equal employment law have been determined by the growth and professional jurisdictional dominance of human resource or personnel professionals. This occurs through a process by which policies and practices erected by human resource professionals are, in turn, incorporated into formalized legal reasoning by judges and the courts.
  675. Find this resource:
  676.  
  677. Edelman, Lauren B., Steven E. Abraham, and Howard S. Erlanger. 1992. Professional construction of law: The inflated threat of wrongful discharge. Law & Society Review 26.1: 47–84.
  678. DOI: 10.2307/3053836Save Citation »Export Citation »E-mail Citation »
  679. Examines the role professional groups play in the diffusion of organizational strategies for responding to legal change. Argues that professional groups manage to construct the meaning of the law and organizational responses to it. Professional groups do so in ways that elevate their status or importance within the organization.
  680. Find this resource:
  681.  
  682. Edelman, Lauren B., Christopher Uggen, and Howard S. Erlanger. 1999. The endogeneity of legal regulation: Grievance procedures as rational myth. American Journal of Sociology 105.2: 406–454.
  683. DOI: 10.1086/210316Save Citation »Export Citation »E-mail Citation »
  684. Article builds on earlier work to analyze how constructions of law become formal law. Argues that organizational policies became both standard mechanisms by which organizations responded to legal change and, in turn, the procedure to which courts deferred in deciding whether organizations had taken sufficient measures to enact the law.
  685. Find this resource:
  686.  
  687. Heimer, Carol A., and Lisa R. Staffen. 1998. For the sake of the children: The social organization of responsibility in the hospital and in the home. Chicago: Univ. of Chicago Press.
  688. Save Citation »Export Citation »E-mail Citation »
  689. Reworks the institutional aspect of professional constructions of law, considering competing solutions in organizational regulatory environments. Institutionalized understandings of a child’s interest differ based upon whether a person approaches infant medical care decisions based on the perspective of the medical community, the law or state interest, or as a family member.
  690. Find this resource:
  691.  
  692. Kelly, Erin L. 2003. The strange history of employer-sponsored child care: Interested actors, uncertainty, and the transformation of law in organizational fields. American Journal of Sociology 109:606–649.
  693. DOI: 10.1086/379631Save Citation »Export Citation »E-mail Citation »
  694. Examines extent to which professional groups have the capacity to reinterpret legal meaning. Analyzes organizational strategies to comply with tax law intended to facilitate employer-hosted child care and finds that human resource professionals shifted the meaning of compliance dramatically, ultimately successfully implementing dependent-care expense accounts for employees.
  695. Find this resource:
  696.  
  697. Culture
  698.  
  699. The interaction of culture and law has been subject to substantial scholarly interest in law and society studies. A recent collection (with German, English, and French contributions) addresses the analysis of law as an example of research on culture (Gephart 2012). Examples of works examining the intersections between culture and law in other countries can be seen in Galanter 1989 (for India) and Rosen 1989 (for Morocco). Western or American culture is argued to contribute to unique forms of law. Friedman 1990 examines the role of freedom of choice in the West, and Kagan 2001 describes the features of an American legal form of “adversarial legalism.” For in-depth illustrations, see the subsections of law and Collective Memory and Language.
  700.  
  701. Friedman, Lawrence. 1990. The republic of choice: Law, authority, and culture. Cambridge, MA: Harvard Univ. Press.
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  703. Argues that law and culture are inextricably tied to one another and that the changing nature of individualism along with the freedom to make individual choices has been a fundamental change in Western freedom over the past few centuries. Suggests that the change has resulted in a unique type of contemporary Western legalism, in which the right to individual choice is the very thing the law is increasingly employed to protect.
  704. Find this resource:
  705.  
  706. Galanter, Marc. 1989. Law and society in modern India. Oxford: Oxford Univ. Press.
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  708. Collection of thirteen essays about the legal system in India written over the course of twenty-five years of study. Examines the process by which seemingly contradictory norms and practices of foreign law and local culture coexist and bend in India, highlighting interactions between everyday notions of legality and the operations of informal tribunals in enacting the law. Discusses the way law mediates traditional social practices and modernizing institutions, serving as a mechanism for social change.
  709. Find this resource:
  710.  
  711. Gephart, Werner, ed. 2012. Rechtsanalyse als Kulturforschung. Frankfurt: Vittorio Klostermann.
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  713. Examines links between culture and law for a diversity of examples, including elective affinities between law and religion; law and globalization; conflicts and mutual penetration of distinct legal cultures; cultural representations of law in literature and film; and “culture” as a source of the legitimacy of law.
  714. Find this resource:
  715.  
  716. Kagan, Robert. 2001. Adversarial legalism: The American way of law. Cambridge, MA: Harvard Univ. Press.
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  718. Explains how “policymaking, policy implementation, and dispute resolution” are conducted through a uniquely American process called “adversarial legalism” and lawyer-dominated litigation. Examines several areas of law, including criminal, environmental regulation, and social insurance programs, comparing Western Europe, Canada, and Japan.
  719. Find this resource:
  720.  
  721. Rosen, Lawrence. 1989. The anthropology of justice: Law as culture in Islam. Cambridge, UK: Cambridge Univ. Press.
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  723. Analysis of the qadi court in Morocco, which handles family law and property cases. Situating the context of the Moroccan social environment that emphasizes social attachments, mutual indebtedness, and obligation. Examines the interplay of culture and law as each is enacted through testimony, assessment and communication of intent, and uses of judicial discretion.
  724. Find this resource:
  725.  
  726. Collective Memory
  727.  
  728. An area of law and culture studies that has recently gained prominence is scholarship on links between law and collective memory. Early examples are the collection Sarat and Kearns 1999 and Osiel 1997 who appeals for “liberal show trials” to cement the memory of atrocities. Douglas 2005 and Pendas 2006 apply the theme to Holocaust trials, while pointing at the limits of trials to do justice to history. A more recent collection on a diversity of cases and legal mechanisms is Karstedt 2009. Savelsberg and King 2011 offers a critical application of the theme to American memories.
  729.  
  730. Douglas, Laurence. 2005. The memory of judgment: Making law and history in the trials of the Holocaust. New Haven, CT: Yale Univ. Press.
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  732. Historical examination of law’s response to the crimes of the Holocaust including Nuremberg, Israeli trials of Eichmann and Demjanjuk, and the French trial of Klaus Barbie. Critically discusses trials as proceedings that sought to do justice both to the defendants and to the history and memory of the Holocaust.
  733. Find this resource:
  734.  
  735. Karstedt, Susanne, ed. 2009. Legal institutions and collective memory. Oxford: Hart.
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  737. Collection of chapters that speak to the effects of criminal trials and other transitional justice mechanisms on the formation of collective memory of repressive regimes and grave human rights violations. Contributors represent a diversity of national and disciplinary backgrounds.
  738. Find this resource:
  739.  
  740. Osiel, Mark J. 1997. Mass atrocities, collective memory, and the law. New Brunswick, NJ: Transaction.
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  742. Jurisprudential-theoretical analysis of relationship between trials and collective memory. Uses theater metaphors. Concludes that courts should employ the law to recast the courtroom drama in terms of a “theater of ideas,” so to engage large questions of collective memory and even national identity.
  743. Find this resource:
  744.  
  745. Pendas, Devin. 2006. The Frankfurt Auschwitz trial, 1963–65: Genocide, history, and the limits of the law. Cambridge, UK: Cambridge Univ. Press.
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  747. Focusing on trial’s representation and perception, analysis suggests that law’s institutional logic colored how history was told, focusing on concrete guilt of individual defendants and neglecting the organization of a criminal state, and focusing on types of crime for which evidence was easier to come by. Also examines further filtering by news media.
  748. Find this resource:
  749.  
  750. Sarat, Austin, and Thomas R. Kearns, eds. 1999. History, memory and the law. Ann Arbor: Univ. of Michigan Press.
  751. Save Citation »Export Citation »E-mail Citation »
  752. Collection of essays, examining law’s influence on perceptions of history, its uses of history, and the construction of collective memory by law. Contributors include Joan Dayan, Shoshana Felman, Dominic La Capra, Reva Siegel, Brook Thomas, and G. Edward White.
  753. Find this resource:
  754.  
  755. Savelsberg, Joachim J., and Ryan D. King 2011. American memories: Atrocities and the law. ASA Rose Monograph Series. New York: Russell Sage.
  756. Save Citation »Export Citation »E-mail Citation »
  757. Examines the processing of atrocities, human rights, and humanitarian crimes through legal proceedings. Emphasizes role of the United States as it promotes the processing of actors in command positions abroad while limiting criminal justice responses to low-level perpetrators at home. Problematic consequences for American memories and actions.
  758. Find this resource:
  759.  
  760. Language
  761.  
  762. Many works on language and law examine how the particular structure of discursive engagement in legal settings shape the epistemological possibilities of legal interpretation, the broader legal process, and thereby the democratic governance structure. The legal settings in this selection of works include the courtroom battle over a high-profile rape case in America (Matoesian 2001), the American law school classroom (Mertz 2007), coastal Kenyan Kadhi courts for marriage disputes (Hirsch 1998), and bilingual courts in Hong Kong (Ng 2009).
  763.  
  764. Hirsch, Susan. 1998. Pronouncing and persevering: Gender and the discourses of disputing in an African Islamic court. Chicago: Univ. of Chicago Press.
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  766. Empirical examination of Swahili women’s use of (Islamic) Kadhi courts to address marital disputes in Kenya. The work draws on court records, court observation, and participant observation in Kenyan Swahili communities. Describes the constraint and empowerment of women within intersecting religious, legal, local social, and cultural norms, and analyzes the use of language (the symbolic and discursive features of courtroom narratives) to transform gender roles and power dynamics through dispute discourse within the context of legal institutions.
  767. Find this resource:
  768.  
  769. Matoesian, Gregory. 2001. Law and the language of identity: Discourse in the William Kennedy Smith rape trial. New York: Oxford Univ. Press.
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  771. Examines the role of language in courtroom rhetorical battles, in particular the acquaintance rape trial of William Kennedy Smith. Argues that language employed in the courtroom setting is used to mobilize culture, in this case to mobilize available cultural conceptions of sex and gender, in constructing competing versions of the truth. Uses conversation analysis, enthnomethodology, and anthropological methods to dissect grammar, syntax, and use of repetition within the parameters of courtroom structure.
  772. Find this resource:
  773.  
  774. Mertz, Elizabeth. 2007. The language of law school: Learning to “think like a lawyer.” Oxford: Oxford Univ. Press.
  775. DOI: 10.1093/acprof:oso/9780195183108.001.0001Save Citation »Export Citation »E-mail Citation »
  776. Examines legal discourse as taught in the important first-year socialization courses in law school based on observation and interviews with participants, and detailed linguistic analysis of classroom transcripts from eight first-year, semester-long contracts courses in a variety of law schools. Despite differences in course structure and presentation style, particular methods of structuring arguments, ways of using and manipulating legal texts within the hierarchical court structure, and the view of law as a duel result in a common legal language that reworks cultural differences into common legal frameworks. The discursive limits of law can result in blind spots that may be important to democracy.
  777. Find this resource:
  778.  
  779. Ng, Kwai Hang. 2009. The common law in two voices: Language, law and the post-colonial predicament in Hong Kong. Stanford, CA: Stanford Univ. Press.
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  781. Examines the bilingual legal jurisdictions in the common law courts of Hong Kong. Analyzes the implications of the use of Cantonese in the lower courts and English in the higher courts. The two languages are used in ways that both reproduce traditional dominance structures as well as disrupt them.
  782. Find this resource:
  783.  
  784. Economy
  785.  
  786. Weber has made the most comprehensive effort to examine the relationships between the law and the economy. Much of the sociological work in this area takes Weber 1978 (cited under Weber) as a starting point. Some studies in this area also draw upon Marx’s attention to power relations embedded in property. Whereas the economic theory of law (see Economic Theory of Law) suggests that optimal legal decision-making rationales are founded in economic principles, law and economy scholarship analyzes the extent to which economic rationales are employed in legal decision making and to what effect. It also analyzes other ways in which the law and the economy intersect and mutually constitute one another. Contemporary work builds on Weber, at time linking him with Marx, including Balbus 1977, Evans 1995, contributions to Smelser and Swedberg 2005, and Stryker 2003.
  787.  
  788. Balbus, Isaac. 1977. Commodity form and legal form: An essay on the “relative autonomy” of the law. Law & Society Review 11.3: 571–588.
  789. DOI: 10.2307/3053132Save Citation »Export Citation »E-mail Citation »
  790. Essay outlining a Marxian theory of law meant to transcend instrumentalist and formalist approaches. Argues that the “abstract legal person” and that person’s “equality” before the law obfuscates inequality embedded in social relations. This structure is analogous to the commodity form, obscuring unequal use values and unequal relations of production.
  791. Find this resource:
  792.  
  793. Evans, Peter. 1995. Embedded autonomy: States and industrial transformation. Princeton, NJ: Princeton Univ. Press.
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  795. Analyzes how state structures affect growth of technological sectors in Brazil, India, and South Korea. State autonomy from elite interests through bureaucratic governance, that is, meritocratic recruitment and career rewards (autonomous state bureaucracy), lead to higher growth rates, but particularly so where social network ties to business exist (are embedded).
  796. Find this resource:
  797.  
  798. Smelser, Neil, and Richard Swedberg. 2005. Handbook of economic sociology. 2d ed. Princeton, NJ: Princeton Univ. Press.
  799. Save Citation »Export Citation »E-mail Citation »
  800. Volume on economic sociology includes frequently cited chapters, particularly those by Edelman and Stryker on law and the economy, by Dobbin on comparative economies, and by Nee on new institutionalism. Other sections, related to law and society studies, include chapters on international economic arrangements by Fligstein and on business groups by Granovetter.
  801. Find this resource:
  802.  
  803. Stryker, Robin. 2003. Mind the gap: Law, institutional analysis and socio-economics. Socio-Economic Review 1.3: 335–367.
  804. DOI: 10.1093/soceco/1.3.335Save Citation »Export Citation »E-mail Citation »
  805. Using an extended-case study of changes in US labor and employment law, argues that socioeconomic research must undertake serious analysis of the law in its own right and that legal and economic institutional fields are intersecting and mutually constitutive of one another. Proposes a rule-resource framework for understanding the relationship.
  806. Find this resource:
  807.  
  808. Markets and Antitrust
  809.  
  810. As Weber so thoroughly pointed out, legal rules create the conditions under which the market economy is made possible. Work within the law and economy scope addresses the myriad ways in which activities of the state and legal structures influence the way in which markets operate. Much of this work concentrates on state activity surrounding the definition, interpretation, or enforcement of antitrust and monopoly regulation. Excellent examples are Campbell and Lindberg 1990, Dobbin and Dowd 2000, and Fligstein 2001.
  811.  
  812. Campbell, John L., and Leon N. Lindberg. 1990. Property rights and the organization of economic activity by the state. American Sociological Review 55:634–647.
  813. DOI: 10.2307/2095861Save Citation »Export Citation »E-mail Citation »
  814. The state can change existing property rights and introduce new ones, thereby influencing the economy. In particular, state decisions about what constitutes a monopoly and the enforcement of antitrust legislation to combat it can have enormous influence over the structure of the market.
  815. Find this resource:
  816.  
  817. Dobbin, Frank, and Timothy J. Dowd. 2000. The market that antitrust built: Public policy, private coercion, and railroad acquisitions, 1825 to 1922. American Sociological Review 65.5: 557–631.
  818. Save Citation »Export Citation »E-mail Citation »
  819. Analysis of railroad mergers from the early 19th century to the early 20th century and the process of railroad adaptation to changes in antitrust policy. Power influences adaptation strategies and acquisition decisions among railroad companies. Emphasis on role antitrust law played in creating the modern market.
  820. Find this resource:
  821.  
  822. Fligstein, Neil. 2001. The architecture of markets: The economic sociology of twenty-first-century capitalist societies. Princeton, NJ: Princeton Univ. Press.
  823. Save Citation »Export Citation »E-mail Citation »
  824. Analyzes the way antitrust legislation has influenced the strategies and internal power structure of American firms in the 20th century.
  825. Find this resource:
  826.  
  827. Property Rights
  828.  
  829. Property rights are at the core of what makes market economies viable. Carruthers and Ariovich 2004 provides a review of work on property rights, arguing for renewed attention to this area. Oi and Walder 1999 is an edited volume with work on emerging property rights in China. Lessig 2006 examines intellectual property rights in the information age, highlighting a pressing need for empirical research in this growing but unexplored area of economic rights.
  830.  
  831. Carruthers, Bruce G., and Laura Ariovich. 2004. The sociology of property rights. Annual Review of Sociology 30:23–46.
  832. DOI: 10.1146/annurev.soc.30.012703.110538Save Citation »Export Citation »E-mail Citation »
  833. Reviews the state of sociological work on property rights, arguing for increased attention to this area of intersection among law, the state, politics, and the economy. Outlines a framework of dimensions of property and provides recent examples of how dimensions change over time.
  834. Find this resource:
  835.  
  836. Lessig, Lawrence. 2006. Code and other laws of cyberspace: Version 2.0. 2d ed. New York: Basic Books.
  837. Save Citation »Export Citation »E-mail Citation »
  838. Describes how several forces limit freedom in the Internet. Explains how two processes of defining and protecting intellectual property, one legal and one technological, work at odds, and why the latter works despite the fact that it extends property protections beyond what may otherwise be defined as such by the legal code.
  839. Find this resource:
  840.  
  841. Oi, Jean, and Andrew Walder, eds. 1999. Property rights and economic reform in China. Revisions of papers presented at a conference at Hong Kong University of Science and Technology, 1996. Stanford, CA: Stanford Univ. Press.
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  843. Edited volume describing the flexible nature of property in China. Argues that the social structure of rural industry in China differs depending on the structure of the property rights, which range from rights to own, rights to manage, rights to the income generated, and rights to enforce existing economic order.
  844. Find this resource:
  845.  
  846. Science and Technology
  847.  
  848. Science and technology are increasingly said to be incentivized through the assignment of intellectual property rights. Legal and law and society scholars, however, are wary of the material property analogies applied to intellectual property rights. Cohen 1998, Boyle 1996, and Lessig 2006 (cited under Property Rights) critically examine such practices in legal decision making. Gillespie 2007 provides a more sociological account of the various social and institutional factors that contribute to a particular arrangement of rights based on who has access to influence over the law (through legislation or through legal mobilization). Jasanoff 1995 presents a different type of intersection between science and the law by analyzing the presence of expert testimony and scientific evidence in court.
  849.  
  850. Boyle, James. 1996. Shamans, software and spleens: Law and the construction of information society. Cambridge, MA: Harvard Univ. Press.
  851. Save Citation »Export Citation »E-mail Citation »
  852. Analysis of contradictory assumptions underlying legal arguments about commodifying information in intellectual property law. Argues for replacing/balancing the justification of assigning property rights on the basis of creative genius with justifications based on concerns for efficiency, justice, and democratic values. Covers cultural production, genetic code, and software issues.
  853. Find this resource:
  854.  
  855. Cohen, Julie. 1998. Lochner in cyberspace: The new economic orthodoxy of “rights management.” Michigan Law Review 97.2: 463–563.
  856. Save Citation »Export Citation »E-mail Citation »
  857. Defines, analyzes, and dismantles legal analogs of property as they have been and are being applied to rights (intellectual property rights) in the digital frontier. Explains how narratives of economic efficiency obscure nonneutral arrangements, thereby masking the need for explicit choices about assigning rights in creative and informational works.
  858. Find this resource:
  859.  
  860. Gillespie, Tarleton. 2007. Wired shut: Copyright and the shape of digital culture. Cambridge, MA: MIT Press.
  861. Save Citation »Export Citation »E-mail Citation »
  862. Examines the political, economic, and cultural forces behind technological controls over digital media. Explains the shift from regulating copying through legal means to controlling content through digital technological barriers. Explains the potential implications for use of intellectual content and creative expression.
  863. Find this resource:
  864.  
  865. Jasanoff, Sheila. 1995. Science at the bar: Law, science and technology in America. Cambridge, MA: Harvard Univ. Press.
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  867. Shows tension between courts’ need for definitive information and scientific environments in which empirical research is often inconclusive. Argues that the law often makes science when deciding cases in which the scientific evidence is still unsettled. Argues that courts can help elevate public debate on unsettled scientific and technological issues.
  868. Find this resource:
  869.  
  870. Inequality
  871.  
  872. Many of the sections in this bibliography address inequality and the law; inequality is a central theme of critical theories, it is addressed in the sections about the formal legal system, legal education, and the legal profession. Sections on human rights, law and the economy, and legal consciousness discuss the extent to which various aspects of the law enable the powerful or ignore the marginalized. Even the majority of early work on organizations tended to focus on organizational regulatory responses to equal employment opportunity law. This section, however, includes work that more directly and explicitly addresses how legal structures, systems, and activity systematically reproduce or counter inequality in society. Most famous among these works is Galanter 1974 on “why the ‘haves’ come out ahead,” which is one of the most widely cited articles in the law and society studies literature. Twenty-five years after the publication of Galanter’s famous article, the Law & Society Review published an issue, edited by Silbey and Kritzer (Silbey and Kritzer 1999) and devoted to updating scholarship on the theme. Prominent scholars, many of whom also appear elsewhere in this bibliography, contributed substantive articles, research notes, and commentary. McCann 1994, in contrast, looks at the role of law as a symbolic resource in advancing rights claims that can help counter inequality in society. Seron and Munger 1996 provides an excellent review of the sociological work on law and inequality, placing the collection of works in their theoretical and intellectual contexts and highlighting the most important features of law and inequality research. The review covers work ranging from high level analysis of the role of the state to grounded in-depth explorations of legal consciousness.
  873.  
  874. Galanter, Marc. 1974. Why the “haves” come out ahead: Speculations on the limits of legal change. Law & Society Review 8:95–160.
  875. DOI: 10.2307/3053023Save Citation »Export Citation »E-mail Citation »
  876. Explains structural features of courtroom success in terms of the frequency with which parties participate. Parties are characterized as one-shooters versus repeat players, the latter advantaged by economies of scale, knowledge of courtroom networks, levels of expertise, and leeway to choose which cases to pursue to shape the “rules” for future cases.
  877. Find this resource:
  878.  
  879. McCann, Michael W. 1994. Rights at work: Pay equity reform and the politics of legal mobilization. Chicago: Univ. of Chicago Press.
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  881. Develops a legal mobilization framework linking formal legal change to rights consciousness and collective action. Based on interviews, movement documents, news accounts of pay equity activity, and secondary scholarly research, focuses more on the symbolic power of the formal legal environment than on the direct impact of particular legal decisions.
  882. Find this resource:
  883.  
  884. Seron, Carroll, and Frank Munger. 1996. Law and inequality: Race, gender . . . and, of course, class. Annual Review of Sociology 22.1: 187–212.
  885. DOI: 10.1146/annurev.soc.22.1.187Save Citation »Export Citation »E-mail Citation »
  886. Discusses the concept of class within the sociology of law. Reviews the development of sociological theory and research about law, citing, reviewing, and contextualizing the important literature about the ways in which class has been conceptualized.
  887. Find this resource:
  888.  
  889. Silbey, Susan, and Herbert Kritzer, eds. 1999. Special Issue: Do the “haves” still come out ahead? Law & Society Review 33.4.
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  891. Twenty-five-year update to Galanter 1974. Contributions focus on how law and society studies scholarship has moved outside the courtroom. Contributions analyze responses to court decisions (Harris) and the prevalence of legal activity in organizational settings (Edelman/Suchman), appeals processes (Farole, Songer) or summary judgments (Albiston).
  892. Find this resource:
  893.  
  894. Class, Race, Ethnicity, and Gender
  895.  
  896. In keeping with the section above, works in this area analyze the influence of the law in perpetuating or mitigating inequality, the difference being that works cited in this section more specifically target particular legal rules and doctrines or analyze outcomes for particular groups. Munger 2006 is an edited collection that covers a range of issues and analytic approaches to the role of law in the experiences of the poor. Burstein and Monaghan 1986 and Burstein and Edwards 1994 focus on legal outcomes of laws designed to mitigate employment discrimination. Williams 1991, Minow 1990, and Calavita 2007 analyze ways in which what appear to be neutral or definitional components of the law can be anything but neutral in terms of constituting rules that contribute to oppression through contract doctrine (Williams 1991), discrimination through conceptualizations of difference (Minow 1990), or unequal inclusion/exclusion criteria in immigration (Calavita 2007). Nielsen 2006 provides an example of how legal definitions can reproduce inequality. Saguy 2003 provides a cross-national comparison of legal definitions of harassment.
  897.  
  898. Burstein, Paul, and Mark Evan Edwards. 1994. The impact of employment discrimination litigation on racial disparity in earnings: Evidence and unresolved issues. Law & Society Review 28.1: 79–112.
  899. DOI: 10.2307/3054138Save Citation »Export Citation »E-mail Citation »
  900. Analyzes appellate court cases from 1965 to 1985, finding that court victories in employment discrimination cases are associated with increased relative earnings for black Americans.
  901. Find this resource:
  902.  
  903. Burstein, Paul, and Kathleen Monaghan. 1986. Equal employment opportunity and the mobilization of law. Law & Society Review 20.3: 355–388.
  904. DOI: 10.2307/3053580Save Citation »Export Citation »E-mail Citation »
  905. Argues that the passage of equal employment opportunity legislation was a necessary but not sufficient step in the process of prohibiting discrimination. Effectiveness depends upon continued mobilization of the law. Analyzes Equal Employment Opportunity (EEO) cases, finding evidence of EEO mobilization and outcomes favoring alleged victims in more than half of cases.
  906. Find this resource:
  907.  
  908. Calavita, Kitty. 2007. Immigration law, race, and identity. Annual Review of Law and Social Science 3.1: 1–20.
  909. DOI: 10.1146/annurev.lawsocsci.3.081806.112745Save Citation »Export Citation »E-mail Citation »
  910. Review article examining the intersection of immigration law, race, and identity. Argues that African American racialization has comprised a central component of US immigration law’s inclusion and exclusion criteria. Decenters the role of law in favor of emphasizing the construction of identity.
  911. Find this resource:
  912.  
  913. Minow, Martha. 1990. Making all the difference: Inclusion, exclusion, and American law. Ithaca, NY: Cornell Univ. Press.
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  915. Analysis of discrimination law through a reexamination of difference. Organizations and societal institutions tend to locate difference as an attribute of a person rather than in terms of the definition imposed by societal tradition or organizational policy. Argues for a redefining of difference through a “social relations” approach.
  916. Find this resource:
  917.  
  918. Munger, Frank, ed. 2006. Law and poverty. Aldershot, UK, and Burlington, VT: Ashgate.
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  920. Edited collection of classic interdisciplinary essays intended as a resource for teachers and poverty scholars. Socio-legal research on the legal experiences of the poor, includes articles on analytical approaches to law and poverty and on specific issues of race, gender, access to law, legal consciousness, and social change.
  921. Find this resource:
  922.  
  923. Nielsen, Laura Beth. 2006. License to harass: Law, hierarchy, and offensive public speech. Princeton, NJ: Princeton Univ. Press.
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  925. Based on ethnographic work and in-depth interviews, book examines the role of offensive speech, including sexist speech in the United States. Argues that sexist and racist speech creates, reproduces, and reinforces patterns of inequality. Law normalizes such interactions and offers a “licence to harass.”
  926. Find this resource:
  927.  
  928. Saguy, Abigail. 2003. What is sexual harassment? From Capitol Hill to the Sorbonne. Berkeley: Univ. of California Press.
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  930. Explains cross-national differences in sexual harassment definitions. Conditions include dissimilarities between key institutions. Feminists in the United States and France encounter distinct legal resources: civil rights laws and jurisprudence in the former, existing sexual violence laws in the latter. Once codified, law affected corporate policies and individual interpretations.
  931. Find this resource:
  932.  
  933. Williams, Patricia. 1991. The alchemy of race and rights. Cambridge, MA: Harvard Univ. Press.
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  935. Explores the relationships behind legal doctrines and documents real lives around such issues as slave ownership and homelessness. Examines how seemingly objective ideas turned doctrine such as contract law into tools of oppression and intolerance. Uses storytelling as method to reveal the processes by which meaning is created.
  936. Find this resource:
  937.  
  938. Legal Consciousness
  939.  
  940. According to Ewick and Silbey 1998, legal consciousness scholarship shifts the theoretical question about law and society away from the instrumental relationship between law and society toward analysis of the presence of law in society. These works look at how law is perceived in everyday lives and how those perceptions influence ways in which people call upon and utilize the law and legal system. These studies, therefore, tend to employ ethnographic and narrative analytic methods. Tyler 1990 identifies benefits of procedural justice and Engel 1993 the weight of retold stories. Merry 1990 explores the role of legal consciousness in mediation, Nielsen 2000 in the context of offensive speech, and Sarat 1990 for the case of welfare recipients.
  941.  
  942. Engel, David M. 1993. Origin myths: Narratives of authority, resistance, disability and law. Law & Society Review 27.4: 785–826.
  943. DOI: 10.2307/3053953Save Citation »Export Citation »E-mail Citation »
  944. Analyzes narratives of parents regarding their children’s disability and subsequent experiences with special education. Finds that repeatedly retold “origin stories” take on a mythical quality. Stories held in common have similar consequences with respect to when legal remedies to conflicts are and are not invoked.
  945. Find this resource:
  946.  
  947. Ewick, Patricia, and Susan S. Silbey. 1998. The common place of law. Chicago: Univ. of Chicago Press.
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  949. Presents everyday person’s perception of law based on interviews. Authors define legal consciousness as comprised of sets of meanings, sources of authority, and practices recognized as “legal” by ordinary individuals. Everyday, or common, understanding of the law, or legal consciousness, is categorized in three ways: “before the law” (law as separate from everyday life); “with the law” (law as a strategic game); and “against the law” (law to be resisted in subtle ways).
  950. Find this resource:
  951.  
  952. Merry, Sally Engle. 1990. Getting justice and getting even: Legal consciousness among working-class Americans. Chicago: Univ. of Chicago Press.
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  954. Analysis of three mediation programs in two New England towns, based on ethnographic research, interviews, and observation of mediation sessions and court hearings, and quantitative analysis of program caseloads. Presents the understandings and approaches working-class people take to the legal system in their status as nonexpert participants.
  955. Find this resource:
  956.  
  957. Nielsen, Laura Beth. 2000. Situating legal consciousness: Experiences and attitudes of ordinary citizens about law and street harassment. Law & Society Review 34.4: 1055–1090.
  958. DOI: 10.2307/3115131Save Citation »Export Citation »E-mail Citation »
  959. Based on observation and interviews, analyzes the legal consciousness surrounding offensive speech. Part dispute identification, part legal consciousness, finds that although white women and people of color are the targets of offensive speech more often than white men, they are no more likely to advocate legal regulatory remedies.
  960. Find this resource:
  961.  
  962. Sarat, Austin. 1990. “The law is all over”: Power, resistance and the legal consciousness of the welfare poor. Yale Journal of Law and the Humanities 2:343–379.
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  964. Based on interviews and ethnographic research with welfare recipients and disputants, finds that in the legal consciousness of the welfare poor, law is powerful and dominant, and their approach to law is one of resistance.
  965. Find this resource:
  966.  
  967. Tyler, Tom. 1990. Why people obey the law. New Haven, CT: Yale Univ. Press.
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  969. Panel study provides an assessment of the motivation behind legal compliance. Contrasts normative and instrumental frameworks for compliance, finding that people rather obey the law when they believe in its legitimacy; they want to imagine themselves as moral individuals; and people value a fair process more than an individually optimized outcome.
  970. Find this resource:
  971.  
  972. Human Rights
  973.  
  974. Issues of human rights have recently gained prominence in law and society studies. Much work deals with the effect of transitional justice on subsequent improvements of human rights records. Both Sikkink 2011 and Olsen, et al. 2010 are based on new and impressive data sets. Identifying correlations between transitional justice and human rights, they seek causal mechanisms. Minow 2002 brings together a series of her lectures and responding essays on mechanisms to end cycles of hate and violence. Heberer and Matthäus 2008 edited a collection of essays, mostly by historians, that analyze primarily post–World War II justice. Some of these essays examine the reconstruction (and distortions) of history through these trials. Savelsberg 2010 explores the sociological conditions for the emergence and functioning of human rights interventions. Meierhenrich 2008 examines the role of past legal traditions for transitions to democracy for the case of South Africa. Hayner 2001 examines the functioning and consequences of truth commissions as a transitional justice mechanism.
  975.  
  976. Hayner, Priscilla B. 2001. Unspeakable truths: Confronting state terror and atrocities. New York: Routledge.
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  978. Comprehensive analysis of truth commissions. Diagnoses great variability and potential contributions to transitional societies. Comparative analysis speaks to conditions of truth commissions. Analyzes relationship between truth commissions and other transitional justice mechanisms, challenging the notion of a tradeoff between truth and justice.
  979. Find this resource:
  980.  
  981. Heberer, Patricia, and Jürgen Matthäus, eds. 2008. Atrocities on trial: Historical perspectives on the politics of prosecuting war crimes. Lincoln: Univ. of Nebraska Press.
  982. Save Citation »Export Citation »E-mail Citation »
  983. Historians provide case studies of trials against perpetrators of war crimes. Focus on history of war-crime trials from Weimar Germany to the immediate post–World War II era. Several essays speak to the history writing function of criminal trials, spelling out distortions resulting from political constraints and from the particulars of judicial institutional logic.
  984. Find this resource:
  985.  
  986. Meierhenrich, Jens. 2008. The legacies of law: Long-run consequences of legal development in South Africa, 1652–2000. New York and Cambridge, UK: Cambridge Univ. Press.
  987. DOI: 10.1017/CBO9780511510571Save Citation »Export Citation »E-mail Citation »
  988. Examines the role of law in making democracy work in changing societies, especially South Africa in the transitions from apartheid to democracy. Argues that legal norms and institutions, even illiberal ones, help structure democratic outcomes, reducing uncertainty in democratization by invoking common cultural backgrounds and experiences.
  989. Find this resource:
  990.  
  991. Minow, Martha. 2002. Breaking the cycle of hatred: Memory, law and repair. Edited by Nancy L. Rosenbaum. Princeton, NJ: Princeton Univ. Press.
  992. Save Citation »Export Citation »E-mail Citation »
  993. Legal, political, and psychiatric scholars address responses to systemic violence (hate crimes, domestic violence, ethnic cleansing), responding to Minow’s plea to search for alternatives to vengeance and forgiveness. Focus on shape memory takes. Skepticism toward legal mechanisms paired with concerns with the victim’s need for reparative action and moral rerecognition.
  994. Find this resource:
  995.  
  996. Olsen, Tricia, Leigh A. Payne, and Andrew G. Reiter. 2010. Transitional justice in balance: Comparing processes, weighing efficiency. Washington, DC: US Institute of Peace Press.
  997. Save Citation »Export Citation »E-mail Citation »
  998. Systematically compares transitional mechanisms such as trials, truth commissions, amnesties, reparations, and lustration processes, across regions, countries, and time. Based on analysis of a new Transitional Justice Data Base, study incorporates experiences from 161 countries between 1970 and 2007.
  999. Find this resource:
  1000.  
  1001. Savelsberg, Joachim J. 2010. Crime and human rights: Criminology of genocide and atrocities. London: SAGE.
  1002. Save Citation »Export Citation »E-mail Citation »
  1003. Short book explores conditions for the emergence and functioning of human rights law (and conditions of perpetration). Seeks to link together criminological literature with work in disciplines that have traditionally addressed human rights themes, including legal scholarship, political science, and history.
  1004. Find this resource:
  1005.  
  1006. Sikkink, Kathryn. 2011. Justice cascade. New York: Norton.
  1007. Save Citation »Export Citation »E-mail Citation »
  1008. Analysis of comprehensive new data indicates that holding former political and military leaders legally accountable strengthens prospects for successful transitions to democracy. Argues that domestic, foreign, and international trials become the norm worldwide and diagnoses a “justice cascade.”
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