File Name: american legal history cases and materials .zip
The study of law and society rests on the belief that legal rules and decisions must be understood in context. Law is not autonomous, standing outside of the social world, but is deeply embedded within society. While political scientists recognize the fundamentally political nature of law, the law and society perspective takes this assumption several steps further by pointing to ways in which law is socially and historically constructed, how law both reflects and impacts culture, and how inequalities are reinforced through differential access to, and competence with, legal procedures and institutions.
This article discusses the key characteristics of a law and society perspective, some of the major research contributions of this field, and recent developments in law and society that hold particular promise for scholars of law and politics today. In particular, it examines three broad areas of law and society scholarship: disputing, decision making, and legal ideology and consciousness. Keywords: law , society , politics , disputing , decision making , legal ideology.
Levine ; Schlegel ; Garth and Sterling Its philosophical roots lie in the jurisprudential writings of the legal realists, who saw law as a vehicle for social engineering and challenged depictions of law as apolitical and autonomous. Likewise, social scientists were highly optimistic and confident about the potential of their work to solve social problems.
Law and society scholars of the s were also responding to many of the burning issues literally—from riots in Los Angeles, Detroit, and elsewhere of the day. Dismayed and frustrated by the formalism of the legal academy and the irrelevance and narrowness of much social science, a number of legal scholars and social scientists sought to engage in research that would address current policy debates over racial discrimination, poverty, and crime.
Substantial funding for empirical research on these topics from the Ford Foundation, Russell Sage, and others provided further impetus for studies that would combine social science and law. Responding to the availability of research funds and their own political and intellectual agendas, a multidisciplinary group of scholars created the Law and Society Association in Its members were drawn primarily from sociology, political science, and law, with some representation from anthropology, psychology, history, and occasionally economics.
Politicians and scholars recognized that what happened in local agencies or in trial courts could be as important as what happened in Washington, DC. This opened up new topics for empirical research on legal processes and resulted in law and society studies of public defender offices, legal aid, lower courts, administrative agencies, juries, police, and prosecutors. Political scientists authored many of these works and they enjoyed the feedback from sociologists and law professors they received in the law and society community.
Constitutional law scholars who supported law and society in its early days had also turned their attention away from formal doctrinal analysis of Supreme Court decisions. They focused instead on interest groups and the lower courts in an effort to understand the political and organizational dynamics in test case litigation, the difficulties of implementing the decisions of the Supreme Court, the politics of administrative agencies, and the politics of judicial selection.
With this early history in mind, what are the key characteristics of a law and society perspective? What are some of the major research contributions of this field? And what recent developments in law and society hold particular promise for scholars of law and politics today? Law and society scholarship has typically been multidisciplinary or interdisciplinary.
Although most law and society scholars have been trained in one or another established discipline, they have frequently borrowed from other disciplines in their research. For example, early empirical analyses of plea bargaining in criminal courts reflected multiple methods and theories. The studies drew upon organization theory Blumberg ; Eisenstein and Jacob ; Feeley , social learning theory Heumann , ethnography Mather , ethnomethodology Sudnow , history Alschuler ; Friedman , and discourse analysis Maynard Such interdisciplinary work has been more common in recent years.
It reflects the maturity and growth of the field as well as the development of graduate and undergraduate programs in law and society.
Second, in terms of epistemology and methodology , law and society emerged during the s, a time of the behavioral revolution in the social sciences and an optimistic embrace of positivism.
Scholars focused their work on legal processes and individual and group decision-making. Empirical studies of behavior could be qualitative or quantitative, with the former defined broadly to encompass historical or anthropological methods. Methodological debates that were fierce in political science at this time were, by contrast, relatively muted within law and society. This tendency has continued to characterize the field, with greater focus on theory and substantive results than on sophistication of the methods or an insistence on the superiority of any particular method Engel By the s, law and society critics of positivism raised serious challenges to the paradigm and articulated postrealist, interpretive, and constitutive approaches to law Brigham and Harrington ; Harrington and Yngvesson ; Hunt Contemporary law and society scholarship encompasses a wide range of epistemological perspectives, from the cultural studies approach of law and humanities to empirical legal studies—and everything in between.
Third, normative, policy-relevant concerns for justice and equality that initially drove the field remain significant even as debate continues over the best way that scholars can realize that normative commitment. Levine noted the long history of tension between basic and applied research in sociolegal studies, but suggested that both could be realized; theoretical work can provide policy insights and studies of specific policy reforms can generate theory.
In an important exchange over postmodernism and political change, Handler chastised the new postmodern scholarship for its inattention to power structures, collective identity, and the possibilities of transformative politics but see responses by Calavita and Seron ; McCann A decade later, Munger called for renewed activism along with scholarly inquiry.
Fourth, comparative approaches to research questions in law and society have been a long-standing commitment of the field, even as they have sometimes been honored in the breach more than the practice Mather The very first volume of the Law and Society Review contained articles on comparative family law, one by a sociologist Cicourel and the other by anthropologists Bohannan and Huckleberry Other important sociolegal studies examined comparative disputing processes Abel ; Moore ; Nader and Todd , comparative lawyers Abel and Lewis ; Epp , comparative courts Shapiro ; Jacob et al.
Meetings in Amsterdam , Glasgow , p. The American politics subfield operates quite independently and scholars infrequently cite across subfields. By contrast, the law and society field actively seeks connections to the empirical scholarship on law being done in other countries, connections that are facilitated by LSA networks.
Finally, while law is the central concern of law and society scholars, it is not seen as residing in a formal, separate sphere, apart from society. Just as political scientists have long recognized the political nature of law, sociolegal scholars add that law is also social, cultural, economic, linguistic, and ideological. Scholars in the field do not agree in their response.
But most identify a particular question or problem about the creation, maintenance, or change in law and seek to answer it wherever the question leads. What is important is to be self-aware in drawing the boundaries for study, as opposed to limiting a priori the scope, and to draw on other disciplines for relevant concepts, methods, or insights.
Some of what falls under this umbrella e. Other law and society work may seem less so because of the individual topics studied border patrol, divorce lawyers, film, science laboratories, lawyer jokes or the methods used narrative, experiments, network analysis, ethnography. A recent symposium of the Law and Courts Newsletter Winter featured summaries of the law and society field and its relation to political science, written by seven p. Readers should consult this issue for excellent descriptions of this large and robust field of study.
I will concentrate on three broad areas of law and society scholarship: disputing; decision-making; and legal ideology and consciousness.
I will then briefly mention other areas, while acknowledging that I am still omitting many others. Studies of disputing ask how disputes become court cases and what occurs to cases once they are in court. What are the alternatives to courts for resolving problems or disputes?
Why do some conflicts become legal cases but most do not? How does understanding disputing help to explain conflict resolution and the impact of law? Both criminal and civil conflicts in the U. The empirical results of the CLRP scholars have been reported in myriad judicial process textbooks but this important, forty-year-old study has not been replicated. Galanter also showed how disparities in the legal profession specialization, relations with clients, legal training, etc.
A number of empirical studies since then have supported his theory see Kritzer and Silbey That is, parties who are more familiar with legal processes know when to settle out of court and when to press on to formal trial, according to the likelihood of gain in the legal rule as opposed to a win or loss in the immediate conflict. As Mather and Yngvesson —1 suggest, legal cases are not objective events, but are socially constructed to reflect the interests of supporters of disputants, to appeal to a particular audience, and to incorporate the values and language of law.
The language of law is inherently political, ordering facts and invoking norms to support one set of interests or another.
By constructing claims in certain ways, one can expand the law and mobilize others in support of the new interpretation.
Groups lacking in political power may succeed in attracting support for legal change through reframing issues and mobilizing support, as shown in litigation over comparable worth McCann , tobacco control Mather , and sexual harassment Marshall A victory in litigation, even if later reversed on appeal, can aid in agenda setting and serve as a catalyst for further change.
The linkage among litigation, political order, and political change also emerges in empirical research on the use of courts over time. Filing disputes in court should be seen as an alternative to traditional forms of political participation, as Zemans argued, and indeed longitudinal study of court usage in the U. Nevertheless, courts are not passive institutions waiting for disputes to percolate up the pyramid to become fodder for judicial decisions.
Courts are institutions of the state and as such, they or other arms of government can and do exercise power to shape the nature and amount of litigation Munger ; Harrington and Ward This general point about the power of institutions was made in law and society research some time ago. Recent battles over tort reform illustrate it well, as actions by state legislatures, Congress, and the U. A second major area of law and society research focuses on decision-making.
Scholarship on judicial decision-making is hardly news to those interested in the politics of law, but those in law and society broadened the terrain in several ways.
They examined decision-making by judges at all levels of court including nonlawyer judges on justice of the peace courts, those on small claims courts, misdemeanor and felony courts, civil courts, and occasionally appellate courts. Research revealed differences in sentencing severity across courts and in patterns of judicial interaction with prosecutors Eisenstein and Jacob ; Eisenstein, Flemming, and Nardulli Questions about racial discrimination in trial court sentencing have been investigated numerous times, initially with some mixed results.
Jury decision-making has received a great deal of attention from sociolegal scholars. They have explored, for example, the impact of decision rules and jury size on verdicts, differences in evidence-driven vs. Second, recognizing that over 95 percent of trial court cases settle through plea negotiations or settlement talks, without trial, sociolegal researchers examined decision-making by lawyers. They asked, for example, how, why, and when do prosecutors and defense attorneys engage in plea bargaining?
Do decisions by defense attorneys vary according to whether they are privately employed or public defenders? The rich literature on these questions found in earlier research on plea bargaining would benefit from reexamination in order to see how legal changes on sentencing and jury selection, demographic changes in lower court personnel, increased punitiveness in the cultural and political climate, and the impact of federal anti-immigration measures on local officials, have affected the processes of negotiation in criminal courts.
Lawyers in civil cases also play important roles in dispute settlement and in the production of law. We also know a good deal about the strategies, problems, and goals of cause lawyers Sarat and Scheingold ; Scheingold and Sarat By contrast, we know much less about decision-making in the work of corporate lawyers, and this is also an area that deserves more research. Research that began by simply analyzing individual decision-making soon moved to consider and to incorporate into theory building the context in which those decisions were made.
Relevant aspects of context include, for example, institutional features, legal rules, economic structures, social networks and organization, and shared cultural values. The literature thus moved from its original behavioral focus to reflect institutional and cultural theories. Understanding and explaining the work of lawyers involves studying them within their communities of practice, including the law firm as a community or important cultural space Kelly ; Mather, McEwen, and Maiman Heinz and Laumann first reported the significant differences in lawyers according to what they called the two hemispheres of the legal profession: lawyers who represent organizations or corporate entities and those who represent individual clients and see Heinz et al.
Lawyers representing p. The bifurcated profession has enormous implications for the creation and enforcement of law. For example, law and politics scholars should examine how lawyers exercise influence on law through particular communities of legal practice Mather forthcoming.
Finally, sociolegal scholars broadened their scope beyond judges, juries, and lawyers to include the work of less visible legal actors such as court clerks Yngvesson , health and safety inspection officers Hawkins , immigration officials Coutin , probation officers, and police Skolnick ; Bell
Researching legal history requires a different set of skills and materials than traditional legal research. The books in the general overview section are useful both as substantive accounts of American legal history and examples of seminal works in the field, demonstrating strong methodological approaches to their subjects. Some of the resources in this guide may be familiar. There are useful legal history resources in both LexisNexis and HeinOnline. However, you should not end your research there.
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