Law and Society: Readings on the Social Study of Law

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Editorial Reviews

Susan O. White
This book is a cornucopia of law and society scholarship. Law and politics scholars will find it a useful addition to their personal libraries because it contains such a variety of classic articles under one cover. The book is designed for classroom use and it fulfills that role splendidly as well. It should be particularly useful in judicial process courses because it contains empirical research about the law -- what it is, what it does, its sources in social and political life, the behavior of those who live it and use it, and its impact -- rather than about the institutions of the law. As such, it complements institutional texts and readings, filling in the sociolegal holes with the sometimes surprising and often thought-provoking results of law and society research. The contents range across disciplines without being beyond the easy reach of anyone. The book is particularly rewarding in that it values the classics (e.g., Weber and Dicey), which are woven together nicely with contemporary social science, and also values both theory and empirical findings. The editors are well known to those with an interdisciplinary bent, but for those who have not ventured beyond the political science literature: Stewart Macaulay is a law professor at the University of Wisconsin Law School; Lawrence Friedman is a legal historian at the Stanford Law School; John Stookey is a political scientist at Arizona State University. Their individual scholarly histories reflect much of the interdisciplinary tension and innovation that has characterized the law and society movement. Each has made significant contributions to the law and society literature. This volume is divided into four main sections. After a rather awkward Introduction (more below), the first section, The Legal System in Operation", includes articles on criminal processes and civil law processes, as well as discussions of administrative discretion and the concept of a legal culture. The second section focuses on "The Impact of Society on Law", including social control, legal evolution, and how the many elements of social change are related to legal change. The next section, "The Impact of Law on Society," looks not only at the social impact of law but also at the various issues surrounding legitimacy and compliance. The final section concerns "The Legal System as a Social System: Structure, Rules and Roles", which explores a variety of approaches to understanding roles and role behavior in the legal system. At 902 pages, the book is fat and the print is small. What holds this rather eclectic collection together and provides its greatest utility and worth for the classroom is its emphasis on how to learn about law and society. The book is not simply a collection of articles but, by clear design, a teaching tool. A Notes and Questions section follows each article. While initially a bit off-putting because of their similarity to the sometimes annoying style (raising questions without answers) of a law school case book, these notes and questions provide substantial additional material and provocative points of departure for further analysis. The questions are sometimes methodological, raising issues about the appropriateness of different ways to define a research problem, and sometimes substantive. The are always nicely focused on the issues developed in the preceding reading, and are especially effective in helping the student (and the teacher) to unearth insights that might not have been obvious on a first reading. The introductory chapter is the least rewarding. It is transparently designed to persuade law students that they could benefit from a sociolegal, and specifically empirical, approach to the study of law. Unless the reader is a reluctant law student, this approach seems both simplistic and defensive. For students who do not view the law as a special mystery that can only be grasped through legalistic analysis, this introduction provides small intellectual inducement. It can safely be ignored. The remaining sections are happily free of this kind of pitch. The first substantive section ("The Legal System in Operation"), begins with some useful commentary on how law is perceived by the public. Descriptive materials on the parts of the legal system follow. Illustrative of the book's approach is the first reading under the rubric "Criminal Processes" and its accompanying notes and questions. The article is "'Handling' Family Violence: Situational Determinants of Police Arrest in Domestic Disturbances" by Sarah Fenstermaker Berk and Donileen R. Loseke, published in 15 LAW AND SOCIETY REVIEW 317 (1981). The article discusses this complex issue in detail, raising many questions about how police interact with the public and with the legal process, and about how we can understand these interactions and how we can know anything about their consequences. The article discusses National Crime Survey data about victimization, studies of police behavior, the data about victimization that police collect, use, and report to the FBI, and strategies for analyzing such data. Using this extensive material as a basis, the notes and questions section that follows provides a mini course on research design (subject headings: "The Research Question, Hypotheses, Variables, Operationalization and Data Collection, and Analysis,") including discussions of the pros and cons of various statistical techniques. Along the way, the editors discuss questions ranging from which variables should be measured, to the accuracy of police reports as data, to police discretion, to the implications of this research for public policy. This same section moves on to Joseph Goldstein's "Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice" (excerpted from 69 YALE LAW JOURNAL 543 (1960)) and Abraham Blumberg's "The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession" (1 LAW AND SOCIETY REVIEW No. 2, 15 (June 1967)), two classics in the study of criminal processes. Other brief excerpts from the empirical literature on criminal justice are also included. These are followed by somewhat less extensive but still valuable discussions of research issues such as plea-bargaining. When the section turns to civil law processes, Stewart Macaulay's ground-breaking study of the informal practices lying behind supposedly formal legal relationships, "Non-Contractual Relations in Business: A Preliminary Study" (28 AMERICAN SOCIOLOGICAL REVIEW 55 (1963)) and excerpts from SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS ADJUSTMENT (Aldine, 1980) by Larry Ross are featured. The notes and questions skillfully lead students to think about tort law in action as well as about non-contractual exchange relationships, and to ponder how we "guarantee fairness in an informal setting." The section also explores bargaining and related "in the shadow of the law" issues, based on Mnookin and Kornhauser's study of strategic behavior in divorce, and on other well known studies of rule enforcement in organizations and settlement behavior in litigation. The section continues with a thorough treatment of discretionary decision-making in administrative processes based on Bardach and Kagan's model of "the good inspector" and other materials, and ends with a discussion of the concept "legal culture". The included materials are (obviously) too numerous to mention. The above description of the section on the operation of the legal system, although too limited to do it justice, should give the reader some sense of the variety of materials to be found in this book and their usefulness for classroom purposes. Of necessity, the description of the remaining sections will be even briefer. The editors open the section on "The Impact of Society on Law" with the classic study of social/legal control in two communities by Richard Schwartz ("Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements", 63 YALE LAW JOURNAL 471 (1954)). The notes and questions then restate a number of propositions about legal control, using the article to make them problematic. Schwartz's arguments about social control are also challenged in various ways. The section then moves on to extensive consideration of Weber's theory of legal evolution, and then to nine articles on different aspects of how social change is related to legal change, including Bob Hayden's analysis of the "political crisis" surrounding tort litigation and Lawrence Friedman's theory of the rising demand for "total justice". There is also a special focus on the roles of public opinion, pluralist bargaining and power in the development and use of law. Again the notes and questions are used to good advantage in guiding students through these complex issues. "The Impact of Law on Society" begins by exploring the question of why people obey the law, focusing first on the role of legal sanctions and empirical studies of deterrence; it then turns to the role of peer groups, conscience, moral appeal, embarrassment and shame; and finally, to the role of legitimacy in compliance behavior. Included are studies by Jack Gibbs on deterrence, by Harold Grasmick and Bob Bursik on the social dimensions of sanctioning, by Tom Tyler on the psychology of compliance, by Stanley Milgram on obedience, and by Stewart Macaulay on legal images in our culture. As anyone who knows the debate over deterrence is aware, the issue is not resolved by any of these studies. Instead, each opens new questions, which are posed and discussed in the notes and questions. This section then turns to broader questions about the impact of law, with (among others) an article on rape law reform by Horney and Spohn, an excerpt from Rosenberg's critique of the efficacy of court attempts to reform civil rights law from THE HOLLOW HOPE, and an analysis of the unintended consequences of "no-fault" divorce from THE DIVORCE REVOLUTION by Lenore Weitzman. In each case, the impact of law on society becomes problematic. The final section of LAW AND SOCIETY analyzes the legal system as a social system. It begins with several excerpts about the effects of structure, especially possible differences between adversarial versus inquisitorial systems in their effects on judicial and attorney behavior and on the processing of cases. This is followed by a completely different approach to the question of structural effects in the article by Bob Kagan, Bliss Cartwright, Lawrence Friedman, and Stan Wheeler on "The Changing Caseloads of State Supreme Courts" (76 MICHIGAN LAW REVIEW 961 (1978)). This article analyzed caseload data from 16 state appellate courts from 1870 to 1970, looking at changes such as intermediate appellate courts, added discretion, increased policy involvement, and impact on access. The focus on institutional change then shifts to studies of roles and role behavior, including both the law and politics approach familiar to readers of this review (articles by Goldman, Howard and Gibson) and more sociolegal perspectives: for example, Carol Greenhouse on cultural understandings of the judicial role, Terence Halliday on demographic changes in the legal profession from 1850-1980, John Hagan and collaborators on how the increasing number of women lawyers is affecting the legal profession, and the now classic study by Austin Sarat and Bill Felstiner on "Law and Strategy in the Divorce Lawyer's Office." These are only a sample of the articles and shorter excerpts that are used to illustrate and raise questions about the legal system as a social system. One can always quibble about what else should have been included. My quibbles include areas of research that are central to the purpose of the book. It would have been interesting to see some discussion of empirical studies of the concept of justice, particularly the work of Allen Lind, Tom Tyler and their collaborators on perceptions of procedural justice. I would also like to have seen mention of comparative studies such as the work of Lee Hamilton and Joe Sanders comparing the legal cultures of Japan, Russia and the United States on responsibility and sanctioning, and the studies by Greg Caldeira and Jim Gibson on legitimacy and comparing legal cultures. This kind of research represents a missing dimension to the otherwise wonderful variety of this book. But quibbles are only quibbles. This book deserves serious consideration for use in any law and politics, law and society or judicial process course. It is also an excellent choice for inclusion in the personal library of any scholar interested in empirical studies of law.
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Product Details

  • ISBN-13: 9780393967135
  • Publisher: Norton, W. W. & Company, Inc.
  • Publication date: 6/28/1997
  • Edition description: lst ed
  • Edition number: 1
  • Pages: 912
  • Product dimensions: 5.60 (w) x 9.20 (h) x 1.10 (d)

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