Law & Social Inquiry (LSI) is a multidisciplinary quarterly that publishes original research articles and wide-ranging review essays that contribute to the understanding of socio-legal processes. Law & Social Inquiry's combination of empirical and theoretical research with critique and appraisal of the socio-legal field make the journal an indispensable source for the latest research and commentary. Law & Social Inquiry's ambit spans law and sociology, economics, political science, social psychology, history, philosophy and other social science and humanities disciplines. The journal publishes a remarkable range of scholarship on specific topics in law and society, including but not limited to law, legal institutions, the legal profession, and legal processes.
RG Journal Impact: 0.59 *
*This value is calculated using ResearchGate data and is based on average citation counts from work published in this journal. The data used in the calculation may not be exhaustive.
In this essay on Masahiko Aoki's recent study of Japanese corporate governance, we argue that he and others misdescribe Japan on several fundamental dimensions. First, Japanese firms and employees choose neither to arrange implicit life-time employment contracts nor to invest heavily in firm-specific skills. Instead, firms keep employees employed during economic downturns only because interventionist courts do not let them lay their employees off. Second, Japanese firms do not organize themselves into keiretsu corporate groups, do not exchange shares with other alleged group members, and do not necessarily use the money-center bank attributed to the group as their "main bank." Last, Japanese "main banks" neither agree in advance to rescue troubled debtors nor monitor firms on behalf of other creditors.
Throughout the 19th century, lawyers in France were deeply involved in political action to pursue an overriding goal–to become recognized as spokesmen for the public. This strategy governed their history; it explains their brilliant social ascent and their subsequent slow decline. As long as the conflict between state and civil society raged, lawyers were able to we assets–political mobilization, the power of the word, the esteem enjoyed by law–which had allowed them faithfully to embody public opinion in its struggle to limit state powers. From this embodiment of public ideals they derived independence, prestige, and a dominant position in the state. But when the nature of the political regime ceased to be a bone of contention and when public life became organized around other cleavages, lawyers were gradually deprived of their representative function. This marked the beginning of a social decline that became visible between the two world wars and lasted until the 1950s.
This study focuses on the trajectories of the Institute of Brazilian Lawyers (Instituto dos Advogados Brasileiros, or IAB), created in 1843, and the Order of Lawyers of Brazil (Ordem dos Advogados do Brasil, or OAB), formed in 1933, extending the analysis up to 1997. The article has three objectives: (a) to point out the role played by expertise in the cohesion of the IAB-OAB, changing its public image from one of the political counterelite to that of representatives of civil society, with the “institutional vocation” to defend juridical order and, later, human and citizenship rights; (b) to describe the social ties that permeate the legal world, preventing internal disputes from becoming deep and lasting cleavages; and (c) to contrast the experience of the Brazilian bar with those of the German and French.
The outrageous history of German judges during the Third Reich should not so structure historical research as to distract historians from examining their role in the nineteenth century. Prussian judges played an important role in electoral politics by serving as parliamentary deputies between 1849 and 1913. This essay poses and answers two questions: What was the political, legal, and social setting that led to judges sewing in parliament? And, why did their number decline after 1877? Theoretical discourses of separation of powers, construction of a Hegelian “general estate,” and independence of the judiciary converged with administrative-legal-constitutional developments in Prussia begun under the absolutism of the eighteenth century and professional and personal interests of judges to bring them into parliament, often as members of the liberal opposition. But success in the liberal project of building a national state, including legal reform, professionalization, and the advent of mass politics, reduced the need and attraction for judges in parliament, resulting in a decline after the 1860s.
This essay probes the relationship among different kinds of political cultures, the conduct of judicial elections, and the extent of dissent on the state supreme courts of California, Ohio, Tennessee, and Texas from 1850 to 1920. The introduction at the turn of the twentieth century of Progressive election reforms—most notably the secret ballot, the direct party primary, and the nonpartisan ballot—reduced levels of turnout in judicial contests and increased roll-off from major statewide political to judicial elections. These reforms made judicial elections the tail on the electoral kite and denied the public its best means of regulating judicial policy making. Yet these changes in the electorate's behavior were seemingly unrelated to variations in the rate of dissent in these four state courts, whose judges apparently viewed popular partisan election as more a potential than a real threat to their independence.
The Divorce and Matrimonial Causes Act of 1857 included a double standard in its provisions. While a wife's adultery was sufficient cause to end a marriage, a woman could divorce her husband only if his adultery had been compounded by another matrimonial offense. The Matrimonial Causes Act of 1923 granted a wife the right to divorce her husband for adultery alone and thus removed the double standard with respect to the grounds for divorce born English statutes. Although the 1923 act was contemporaneous with other reforms extending the legal rights of women, an analysis of the public debates regarding divorce reform indicates that the statute was not based solely on a desire to provide equitable matrimonial relief for husbands and wives. The belief that male adultery contributed to such sod problems as prostitution, illegitimacy, and the spread of venereal disease was as significant in the passage of the 1923 act as the demand for equal access to divorce for men and women.
Between the Gilded Age and the Progressive Era, American state legislatures enacted a series of new laws that delineated a class of citizens who were deemed ineligible to participate in the institution of marriage. Scholars have characterized this development as evidence that lawmakers had lost faith in a laissez-faire approach to nuptial governance, and thus transformed marriage into an object of public regulation. This essay argues that behind the ostensible nuptial privatism of the mid-nineteenth century lay a self-conscious policy of judicial governance. Judges invoked the language of nuptial privacy and the common law of contract strategically to advance their vision of moral and economic discipline. The new marital prohibitions thus represented, the essay argues, not the expansion of the state's police power into the previously private realm of domestic relations, but rather a critical transformation in how nuptial reformers and lawmakers understood the relationship between marriage and the well-being of the polity.Fueled by growing concerns about pauperism, the racial character of the urban proletariat, and the collapse of the economically independent single-male-breadwinner household, the changing form of nuptial governance signaled a thoroughgoing intellectual and strategic reorientation from an understanding of marriage as forming economically and morally viable households–the fundamental units of society–to an understanding of marriage as a largely procreative institution, as the literal source of the citizenry. This reconceptualization of marriage underwrote a strategy of nuptial governance that mobilized marriage as a strategy in the state's regulation of social reproduction.
In the 19th century, courts supervised states’ social spending by limiting taxation to public purposes. The focus of this article is the courts’ approach to pensions. Under a 19th-century doctrine, states could pay money to those who had served the state or, under the rubric of charity, to those who were the indigent helpless. States first paid pensions to people for military service and for serving as firemen; later in the century, the doctrine from these cases provided a framework for expanding civil service pensions as states expanded their civil service. Courts characterized the earlier pensions as earned because the service had been dangerous, requiring bravery from men and possibly leaving helpless women and children without protection. This characterization later shaped evaluations of civil service pensions. The doctrine persisted as states enacted pensions for widowed mothers; when these pensions were challenged in state courts, the courts approved of them as payments to helpless people, not as rewards to those who had served. This characterization counters recent scholarship that argues that mothers’ pensions rewarded service as military pensions did.
This article examines a period of profound crisis about the English bar. The metaphor of “moral panic” is invoked in assessing the impact of five notorious cases of barristers’ misconduct which riveted public attention between 1859 and 1863. Four of the barristers involved were subjected to “professional discipline” in what was the first spate of disciplinary proceedings for breaches of bar “etiquette.” Professional “ethics” were applied in remarkably selective ways and amounted to a “shutting down” of laissez-faire professional practices. This was a crucial turning point in the English legd profession, and the effect was to transform the bar from a relatively open, unregulated status group into something akin to a rule-bound disciplinary regime.
Compared to the practice in other professional schools and academic fields at universities, law professors are hired at a young age based primarily upon their academic merit determined through grades, class rank, and school rank. This emphasis upon narrowly defined academic merit—apart from achievement demonstrated through original scholarship or experience in professional practice—first emerged during “the professionalization of the American law professor” between 1870 and 1900 at Harvard Law School (HLS). Though normative today, this outcome was neither necessary nor uncontested. In the late nineteenth century the new standard of hiring faculty according to their academic merit was energetically opposed by those favoring the antecedent standard of professional experience and reputation. Only when financial considerations counterbalanced that traditional standard did hiring decisions tip in favor of the new principle. Not until the early 1900s, when the second generation of academic meritocrats dominated the HLS faculty, did the new hiring standard become unequivocally established as policy in the school and, by extension, in legal education.
At the wheels of railroads and streetcars, the law of accidental personal injury, known as negligence, became a discrete body of law between 1870 and 1920. The defining component of negligence was “fault”–the notion that the individuals (injured and injurer) must have failed to act according to some minimal standard of caution. Theorists of the history of negligence have explained that the conduct of all was measured against what a “reasonable man” would have done under the circumstances. The author here challenges this fundamental assertion. Through trial records, lawyer's written arguments, and appellate opinions, she reconstructs the critical role of gender in shaping the law of accidental injury. As she argues, in 19th- and 20th-century America, injury was a gendered event. The fact that courts in these years held men and women to different standards of care undermines theorists' arguments that economic considerations drove the law of accidental injury. Moreover, the reification of gender nm in private law, in turn, vitally affected the experience of gender in turn-of-the-century America.
When Congress ended the immigration of Chinese laborers in 1882, the Chinese population was over 95% male. While there has been much disagreement about why so few women came, the more fruitful question may be to ask how Chinese women were able to immigrate to the United States at all. Central to their immigration were legal arguments for lawful Chinese immigrants-primarily merchants and native-bom citizens-to bring their wives to the United States. Due to racial restrictions barring them from independent entry or marital naturalization, Chinese wives appealed to the uncodified gender privileges of their husbands in turn-of-the-century legal society: the natural right of a man to the company of his wife and children. In the face of a bureaucratic structure designed to sift immigrants by race, judges ruled that racial admission policies must conform to established gender privileges. The power of these arguments was tested in cases involving the deportation of Chinese women admitted as wives. While initially evading registration regulations for immigrants, Chinese women were unsuccessful at evading regulations concerning prostitution. This failure underscored the performative aspects of husbands' rights arguments, especially the image of the dutiful wife and husband and the class-based ideal of the elite merchant or citizen.
In 1882, Congress passed the Chinese Exclusion Act, barring the entry into the United States of all Chinese laborers. This article explores the dilemmas and contradictions associated with the enforcement of this legislation, focusing on the early years during which the most glaring dilemmas were exposed. Drawing from congressional documents, as well as unpublished letters, memoranda, and circulars of immigration officials, I argue that the difficulties encountered by enforcement personnel, and the sometimes chaotic and inconsistent nature of enforcement, were related to paradoxes associated with prevailing assumptions about the nature of race, class, and identity more generally. I then document how these same paradoxes, and the techniques employed by inspectors to deal with them, ironically facilitated aspiring immigrants’resistance to the full force of the law. This case study, with its emphasis on the contradictions implicit in the law and the dialectical quality of enforcement and resistance, may contribute to OUR understanding of the law's fundamental indeterminacy. Finally, I suggest that the focus on the everyday dilemmas faced by frontline officials may tell us more about the ordinary life of the law and its indeterminacy than the heavily scrutinized landmark cases that constitute much of the literature.
Closely examining a range of New York Court of Appeals police-power cases during the period 1885 to 1905, this article demonstrates that the New York Court had a long history of accepting and continually expanding the police power. In these police-power cases, one finds the court grappling with an evolving sense of how to balance the concept of and need for a well-regulated society against the rights of an individual in an increasingly complex and interconnected world, as well as a tenacious refusal to abandon Victorian bourgeois norms regarding the dichotomy between the home and workplace. By contextualizing and historicizing New York Court of Appeals cases, the article challenges the dominant historiographical interpretations about late-nineteenth-century law. Moving away from a paradigm that labels the court conservative or liberal, formalist or realist, it argues that the court participated in creating a regulatory state while also employing a reasoning that adopted a sharp distinction between the market and the site of the domestic.
This article, by framing criminology and criminal law together, suggests that in the early years of the South African state both bodies of discourse served to evade reality and to construct a sense of self and other as a part of the development of the administration of South African criminal law. It considers the derivation of South African criminology from contemporary metropolitan formulations. South African legal doctrine and practice likewise depended on extra-South African sources. These imported discourses provided lenses through which a descriptive confrontation with the realities of the processes of criminalization, and the administration of criminal justice could be avoided precisely by hose “expert” in these fields. Instead, science and law, far from being pragmatic disciplines, provided the means by which to fantasize about the nature of white justice and black criminality.
This article is part of a larger study on the history of industrial safety law in the United States, one that places particular emphasis on the development of competing attributions of the causes of industrial injury as that development relates to changes in technology, political economy, and culture. The Triangle Shirtwaist Factory fire of 1911, long noted as a catalyst for Progressive Era factory reform, evorked a change in the legal culture's “common sense” of why and how industrial injuries took place. By focusing on and making tangible causal theories that had been in circulation for some time but never embodied successfully in the law, the Triangle fire destroyed long-standing ideological barriers to factory legislation. It thus played a significant role in laying the epistemological foundation of the modern regulatory state.
France regulated competition through the gradual development of jurisprudence rooted in Old Regime practices of speculation and hoarding. This article aims to understand the reasons for this institutional legacy in order to determine if and how these norms could be adapted to the new phenomena of industrial concentration as they appeared at the turn of the nineteenth century.
I argue that French regulation of futures trades and speculation are aimed to stabilize and enhance markets and not to limit them, and that continuities in market and capitalism regulation were much more important than usually held.
The received interpretation of the Mellon tax reforms in the 1920s describes a reactionary roll-back of the first, progressive, permanent income tax system in United States history. This essay revises that interpretation in important ways.The Treasury Department of Secretary Andrew W. Mellon proposed and passed tax reform legislation in the 1920s that radically reduced marginal tax rates on wealthy individuals from World War 1 highs. The Mellon plan was developed by attorneys from the previous Democratic administration. Working with the foremost tax professionals of the day and deeply committed to the principles of progressive income taxation, they intended the establishment of a permanent peacetime tax system for a modern industrial society. They called their taxplan scientific taxation. The Treasury Department policymakers anticipated determined opposition to their program and consciously embarked on an extensive public relations campaign to convince the general public that reducing taxes on wealthy people was good for them because it made the whole society richer and more dynamic.This essay tells the story of how the Mellon plan took shape, and of the public relations campaign waged to secure its enactment. This essay also suggests that the Treasury Department's campaign to sell scientific tax reform to the general public generated a dialogue that facilitated popular acceptance of modern industrial capitalism.
Where does international law (IL) draw its authority from a still weakly institutionalized international scene deprived of the warrants of a state? To address this classical debate, the article draws from a case study on the social and professional structure of the “international legal community” as it emerged during the 1920s as part of the rise of multilateralism and international organizations. It focuses on the “situation of the international lawyers” of the time, starting with the multiple and often antagonistic roles they play (as legal advisers, scholars, judges, diplomats, politicians, etc.) and the variety of interests and causes they defend (states, international organizations, professional interests, etc.) in international politics. It argues this heteronomy of international lawyers helps understand the autonomization of international law. Far from being opposed to one another it has often been assumed—realism and idealism, national loyalty and international loyalty, political logic and learned logic—actually gain when analyzed as various modes of affirming a single cause—that of an international rule of law. This attention given to the “situation of international lawyers” and to the way they manage their various allegiances also accounts for the particular vision of the “International” and of “Law and Politics” relationships that are encapsulated in this emerging international corpus juris.
By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe.
How did advocacy at each level of the federal judiciary help shape the leading decision in American law of treason? This article, adapted from a forthcoming biography of Judge Harold R. Medina, is a case study based on Justice Department archives and the personal papers of Medina, Charles Fahy, and seven Supreme Court Justices. It analyzes the whole case, from the lawyers’standpoint, to illuminate the role of counsel in transforming a minor wartime incident into the first treason case decided on the merits by the Supreme Court and the tribunal's only decision during World War II to limit constitutional war powers. Accenting litigation strategy and the use of history in constitutional interpretation, it is a story also of the struggle by counsel on both sides of the case to uphold high professional standards amid the passions of total war.
This article considers the role of Bella Abzug, lead counsel for Willie McGee from 1948–1951, in shaping the defense of this Cold War era Mississippi rape case. Representing McGee left an indelible mark on Abzug: she made her first trip south, wrote her first Supreme Court petition, and faced her first death threat. Participation in the Left legal bar—especially the National Lawyers Guild and Left feminist circles—shaped Abzug's legal consciousness as she redirected the McGee defense significantly in 1950. By joining race and sex, Abzug's legal argument zeroed in on the taboo of interracial sexual relations at the heart of Southern rape cases, thereby exposing the innermost sexual color line. She urged the courts and cause lawyers—albeit unsuccessfully—to pursue a more radical civil rights agenda than outlawing public segregation, as ultimately achieved in Brown v. Board of Education (1954), and typically recognized in Cold War civil rights scholarship.
Through theoretically informed inquiry into congressional attitudes toward the Constitution and the courts as well as survey research of two modem Congresses, this study considers the prospects and implications of a more salient legislative role in constitutional affairs. By analyzing survey responses from the 86th (1959–61) and 106th (1999–2001) Congresses, and the political context in which these views were formed, this essay explores the legislature's evolving conception of its role and capacities as a constitutional interpreter. Among other findings, Congress demonstrates a persistent and somewhat surprising interest in asserting an independent, distinctive constitutional voice, although it has somewhat conflicted and underdeveloped views about how to achieve this objective. While this essay points to significant barriers to fostering a coherent and forceful congressional presence in constitutional decision making, it also suggests institutional organizations and strategies that may be promising bases for promoting this goal.
We analyze the timing and extent to which major newspapers in the United States ceased publishing sex-segregated help wanted columns. We situate our study within a specific scholarly literature in organizational sociology and the sociology of law interested in patterns of organizational compliance with U.S. employment law. More specifically, this article is conceptually and theoretically organized around the concept of the “legal field,” defined as the dynamic and emergent interactions among formal law and legal rules, legal officials, self-interested organizations, and the broader political and cultural environment. Content analysis of major U.S. newspapers between 1966 and 1975 indicates that, for nearly five years (1966–70), newspapers collectively refused to desegregate their help wanted columns, despite clear legal rules prohibiting their use. Then, in a comparatively condensed period between 1971 and 1973, virtually all newspapers abruptly abandoned the traditional practice of sorting job ads explicitly by sex.
Recent changes in the tax laws governing retirement plans may offer significant tax advantages to lawyers and other self-employed persons. The author discusses the provisions of the Economic Recovery Tax Act of 1981 as they affect self-employed lawyers and compares them with the advantages that may be obtained by incorporation—both firm incorporation and individual incorporations within a firm. He explores a variety of tax issues, including important related Tax Court decisions, and makes recommendations with respect to adopting a strategy by a particular lawyer or firm.
This article is about legal mobilization by claimant groups seeking left-liberal reform in the United States. Drawing on a growing body of work in political science and legal studies, it takes an interpretive, legal-mobilization approach to one litigation-based reform effort: school finance litigation and education reform in Kentucky. In turn, this case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. The article argues that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers. Specifically, it highlights and explicates the meaning of two related themes: (1) legal translation, taken up here as legal framing and legal construction, and (2) the degree of coherence or fit between the legal and political components of reform projects that include both legal mobilization and extrajudicial strategies and tactics. This article suggests that the “degree of coherence” may have an important but underappreciated relationship to the overall success or failure of such reform projects.
Bill Maurer is a lecturer in anthropology at Stanford University. The author thanks Jane Collier, Robin Balliger, and Elizabeth Mertz for their helpful comments and suggestions on earlier drafts. He takes full responsibility for any errors or inconsistencies that remain in spite of their patient and careful readings. He also thanks George Collier and Amy Burce for conversations that helped him develop some of the points made in section II.
This essay is an attempt to uncover and reconstruct 19th-century legal notions of “public economy” and the “well-ordered market.” Through an analysis of 19th-century product and inspection laws, licensing cases and regulations, and public controls on the urban marketplace, the author argues that economic regulation was deeply rooted in American life and law throughout the pre-Civil War era. The pervasiveness of these regulations and accompanying legal rationales steeped in a vision of a “well-regulated society” call into question historical descriptions of this period as the golden age of market capitalism and possessive individualism Law's preeminent role in the construction of public economy also suggests the need to revise our inherited picture of antebellum law as pragmatic, instrumental, and wedded to classical conceptions of property, contract, and the market.
This essay examines the ways in which women lawyers of two generation–the pioneer generation of the 1880s and the “new woman” generation of the 1910s–confronted the dilemma of marriage and career. Members of the Equity Club in the 1880s revealed three distinct sets of attitudes toward balancing marriage and career: the separatist approach that a professional woman must remain single; the Victorian attitude that a married woman must sacrifice her career; and the integrated approach that a woman could have both marriage and career. Women lawyers surveyed by the Bureau of Vocational Information in 1920 revealed that the “new woman” generation of women lawyers lived in an era of transition. While they shared the same separatist, Victorian, and integrated views toward marriage and law practice as did women lawyers in the 1880s, they also embraced the new values of the early 20th century which shaped both the contours of the legal profession and the parameters of women's lives. Set within the context of the new values of the era, the separatist, Victorian, and integrated approaches to resolving the dilemma of marriage and career, which were originally formulated by women lawyers in the late 19th century, assumed new meanings for women lawyers in the early 20th century.
Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.
This is a report of data drawn from a study of personal injury actions in the Superior Court of Alameda County, California, and in the federal district court for Northern California, for the period 1880–1900. Tort actions, in this period, were relatively uncommon compared to the number of accidents. The most frequent type of action was against common carriers—railroads and street railways. Malpractice actions were rare. Most fired cases were settled or dropped out before full trial and jury verdict. Though plaintiffs won damages in most jury cases, the overall finding is that the system provided little compensation for most victims of accidents. Tort law and practice disfavored passengers less than employees or “trespassers.” Three types of barrier blocked the path to compensation: legal doctrines which made recovery difficult; an accident-compensation system which, especially for workers, discouraged enforcement of claims; and the legal culture, which was a culture of low expectations.
This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective entities such as corporations as the foundation of the modern state, at the same time that their concern about the power that these entities could exercise led them to proclaim that corporate power (like sovereign power) should be exercised to benefit the community at large. The article further explores how Berle and Means's legal pluralist vision was eclipsed in the second half of the twentieth century as the attention of lawyers, legal scholars, and government officials shifted from collective entities to the individual as the basis for legal and political analysis (postwar interest group pluralism reflected this shift). The article then shows how this transformation helped legitimate the view that corporate entities were nexuses of private, contractual relationships. Informed by neoclassical economics, advocates of this new vision of the firm emphasized the role of economic markets in regulating corporate power. With deregulation and free markets in mind, neoclassicists came to treat The Modern Corporation and Private Property as a book about the limited question of the effects of the separation of ownership from control on efficiency and profit maximization, not as a book about corporate power as Berle and Means had intended.
This article analyzes narratives of sexual consent and coercion in 15 criminal seduction cases tried in New York City from 1903 to 1918. I explore courtroom accounts of seduction to explain how dominant notions of masculinity and femininity constrain the effectiveness of sex crime laws. Unlike men, women in the Progressive era (1900–1920) who engaged in premarital sex faced potentially significant social costs in the form of unwanted pregnancy and ostracism. These women could sometimes seek redress by bringing felony charges against men who reneged on their promises of marriage. New York's “seduction law” not only criminalized betrayal but it also functioned as a tool in the prosecution of sexual assault. Yet a patriarchal ideology of romantic courtship embedded in the statute, and defense attorney strategies that drew on this ideology, limited the law's ability to address sexual coercion.
The author concludes that federal judges who want to appoint special masters to perform duties related to civil discovery may not look to the Federal Rules of Civil Procedure for authority to do so. By examining the historical backdrop against which the original rules were written, as well as the minutes of the proceedings of the first Advisory Committee, Brazil demonstrates that neither Rule 53 nor any other rule was designed to grant federal trial courts power to assign pretrial discovery tasks to special masters. In fact, the evidence the author marshalls shows that the original Advisory Committee explicitly rejected the idea that the Federal Rules should authorize even a limited role for special masters in connection with discovery depositions.
Finding no authority for such appointments in the Federal Rules, the author turns to the judiciary's “inherent power.” Drawing principles from the seminal Supreme Court opinion in this area, Brazil infers that in some circumstances the courts' inherent authority is a sufficient premise for delegating discovery tasks to special masters. Noting that the reported cases contain no clear guidelines about when or how federal judges should use this authority in making pretrial appointments, Brazil concludes by calling for a new federal rule covering this important subject.
This article examines the instrumental and constitutive effects of California Assembly Bill 540. The law grants undocumented immigrant students an exemption from out-of-state tuition, thereby making some forms of higher education more accessible. Despite the narrow actionable aspects of the law, it unintentionally legitimizes this disenfranchised group. This longitudinal study of undocumented immigrant youth consists of in-depth interviews before, shortly after, and four years after the passage of the law. The findings demonstrate that AB 540 immediately relieved stigma and later provided a socially acceptable identity that, within a legal consciousness informed by meritocracy, empowered these students to mobilize the law in a number of unforeseen ways. The case strongly suggests that it is possible for unintended constitutive functions to have more transformative effects on the daily lives of targeted beneficiaries than the intended instrumental objectives of law.
Reconsidering the original report issued in 1999 by the ABA Commission on Multidisciplinary Practice, this essay suggests that that report properly attempted to deal with questions of legal ethics that might arise if the practice of law by lawyers were integrated into an enterprise in which nonlawyers had a significant degree of ultimate control, but that the commission, perhaps because of undue time pressure, neglected to pursue these questions deeply enough. This essay suggests that more was needed than a proposed mechanism for self-certification of compliance with rules of legal ethics, coupled with possible review of compliance. The “more” that was needed, this essay further suggests, was a proposal for the licensing of an enterprise in which lawyers do not have exclusive ultimate control, as a precondition to permitting lawyers in the enterprise to offer legal services to the general public. Thus, before it could offer legal services to the general public, such an enterprise would need to comply with requirements for obtaining a license, and noncompliance with rules of legal ethics could bring into play traditional disciplinary measures including, where appropriate, suspension or revocation of the license.
This paper examines the extent to which Pennsylvania county courts are prepared to implement the judicial bypass provision of the state's abortion statute. Under the Pennsylvania Abortion Control Act it is illegal for physicians to perform abortions on pregnant minors without parental consent. The constitutionality of this requirement has been upheld, but only when states provide a mechanism allowing a minor to bypass parental involvement. The Pennsylvania statute includes a judicial bypass provision that is formally consistent with legal precedent. However, based on a study of how county courts respond to inquiries into the judicial bypass procedure, this paper demonstrates that most courthouses are not prepared to implement or provide accurate information on bypass proceedings. Since the constitutionality of parental involvement requirements is conditioned on the availability of a bypass option, the paper argues that the courts' lack of readiness poses a significant threat to the rights of pregnant minors.
This article investigates how activists involved in both sides of the street politics of abortion simultaneously create, are constrained by, and use law when recounting a period of conflict that resulted in litigation. The activists-turned-litigants' construction of legality is explored by identifying and analyzing patterns of inclusion, absence, amendment, and type of law (i.e., state or extrastate) in and across the stories they tell. It is found that even though there are multiple reasons to expect all of these activists to resist or amend the state's conception of law, their narratives ultimately reproduce state law's legitimacy and power. The activists' stories also illustrate that legal consciousness is contextually and experientially based and is therefore subject to change. This finding has implications for legal mobilization as well as for the nature of legal consciousness.
This ethnographic article explores the manner in which the Los Angeles Community Action Network (LACAN), a grassroots organization made up of homeless and low-income Skid Row residents, generates video evidence for use in lawsuits against the Los Angeles Police Department (LAPD). For marginalized communities fighting police abuse, the 1992 acquittal of four LAPD officers charged with the beating of Rodney King demonstrated that even the most “obvious” and condemning video evidence is subject to reinterpretation and reframing by skilled legal professionals. In response, LACAN has developed interactional filming strategies designed to constrain officers' ability to offer alternative explanations, while alleviating disparities in court-recognized authority. In the tradition of legal consciousness scholarship, this article “de-centers” the law by shifting emphasis from formal judicial decisions in the courtroom to citizen groups in their own communities, as they learn to use legal norms and conventions in social justice campaigns.