Socio-Legal Studies

Computational network model of U.S. law professors

"Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure-operationalized as the professional and social connections between judicial actors-partially directs outcomes in the hierarchical federal judiciary.

Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its properties. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely upon a proxy measure to paint a picture of the social landscape. In the aggregate, we believe the flow of law clerks reflects a reasonable proxy for social and professional linkages between jurists. Having collected available information for all federal judicial law clerks employed by an Article III judge during the "natural" Rehnquist Court (1995-2004), we use these roughly 19,000 clerk events to craft a series of network based visualizations.

Using network analysis, our visualizations and subsequent analytics provide insight into the path of peer effects in the federal judiciary. For example, we find the distribution of "degrees" is highly skewed implying the social structure is dictated by a small number of socially prominent actors. Using a variety of centrality measures, we identify these socially prominent jurists. Next, we draw from the extant complexity literature and offer a possible generative process responsible for producing such inequality in social authority. While the complete adjudication of a generative process is beyond the scope of this article, our results contribute to a growing literature documenting the highly-skewed distribution of authority across the common law and its constitutive institutions. "

This essay is the introductory chapter of a book about research methods in the field of law and society (Halliday, S. and Schmidt, P., Conducting Law and Society Research: Reflections on Methods and Practices, New York: Cambridge University Press, 2009). Through interviews with many of the most noteworthy authors of law and society, Conducting Law and Society Research takes readers behind the scenes of empirical scholarship, showing the messy reality of the research process. The challenges and the uncertainties, so often missing from research methods textbooks, are revealed in candid detail. The accessible and revealing conversations about the lived reality of classic projects will be a source of encouragement and inspiration to those embarking on empirical research, ranging across the full array of disciplines that contribute to law and society. In this introductory essay, we argue for greater candor in discussing the messiness of empirical research methods, particularly in the field of law and society which has for many years explored the gap between rules and reality. We also examine the role which luck (both good and bad) plays in empirical research. Ultimately, we suggest that narratives of the research process such as the conversations contained in the book are a necessary complement to research methods textbooks. They reveal, in powerful ways, that 'good research' displays not an absence of problems but the care taken in negotiating them.

Gerald Rosenberg's new edition of The Hollow Hope repeats his earlier book-length argument against the prospects of social reform through law. Complete with tables, charts, and updated statistics, the new edition replies to his critics and extends his analysis to a number of new areas, including same-sex marriage. The new material reinforces his original conclusion that legal rulings fail to spark social progress not already underway.

Most scholars would agree that tort law is a cultural phenomenon and that its norms, institutions, and procedures both reflect and shape the broader culture of which it is a part. Yet relatively few studies have attempted to analyze tort law as a form of cultural practice or to address basic challenges regarding the methods or subject matter that are appropriate to such analyses. This essay introduces and summarizes a new volume of interdisciplinary, comparative, and historical studies of tort law in the United States as well as in the United Kingdom, Japan, Italy, India, Thailand, and elsewhere (the volume is entitled Fault Lines: Tort Law as Cultural Practice, Stanford University Press, 2009). The introductory essay contends that culture is not some 'thing' outside of tort law that may or may not influence legal behavior and deposit artifacts in the case law reporters. Rather, tort law and culture are inseparable dimensions of social practice in which risk, injury, liability, compensation, deterrence, and normative pronouncements about acceptable behavior are crucial features. Contributors to this volume demonstrate a variety of ways in which tort law's cultural dimensions can be explored as they write about such topics as causation and duty, gender and race, the jury and the media, products liability and medical malpractice, insurance and the police, and tobacco and asbestos litigation. Their analyses extend far beyond the confines of the tort reform debate, which has until now set the agenda for much of the sociolegal research on tort law.

In America, law is a cultural practice. Americans are dedicated to living as a community under the rule of law. This commitment to a legal way of life cannot be reduced to an equally strong devotion to a moral form of being. That is, the two dimensions of experience are incommensurable (which does not mean that they are wholly insulated or separate from one another). One consequence of this normative condition is that the demands arising from a commitment to law are not always reconcilable with those stemming from moral beliefs. At the same time, neither obligation has priority over the other. For the individual in his or her role as a lawyer, this indicates that he or she may be required to act in a manner that is not defensible on any moral ground, but is still capable of justification. As an analysis of the character of the lawyer's life, these facts reveal a basic truth: the life of the lawyer is an inherently conflicted, and an absolutely meaningful, one.

This argument presents a direct challenge to contemporary legal ethics discourse, in its most essential aspects. In this Article, this argument takes the form of a defense of a new orientation toward our thinking about the practice of law, which is the cultural study of the lawyer (cultural study understood as a type of philosophical anthropology). An in-depth introduction to this line of reasoning is presented, an explanation that appeals to a variety of fields of knowledge, including jurisprudence, epistemology, political theory, and moral philosophy. The goal is to convince the reader of the propriety, and the power, of this form of inquiry into a lawyer's professional responsibility. The benefit is an understanding of lawyer ethics that is both realistic and hopeful.

Second Annual International Law in Context Lecture, Georgetown University

What general challenges are posed for legal thought by multiculturalism? Until relatively recently, modern jurists (as contrasted with sociolegal scholars) have not devoted much attention to cultural diversity as an issue for legal theory, or to asking general theoretical questions about law's relation to culture. This paper considers why and how this situation of neglect is changing. It reviews major recent encounters in legal thought with the concept of culture, and the development of a new 'jurisprudence of difference'. It advocates a focus on 'community' and 'communication' in legal theory in addressing multicultural challenges for regulation, and illustrates how this approach may relate to judicial practice and the communication processes of the courtroom.

Gangs of America describes the expansion of corporate legal empowerment onto the global stage through international agreements such as the North American Free Trade Agreement, which boosted the legal powers of corporations to the level of sovereign nations. The book pays special attention to recent events, including campaign finance reform, the financial scandals of 2002, and the growing movement to redefine the corporation and limit corporate power.

Anglo-American whalemen in the eighteenth and nineteenth centuries used customs largely of their own creation to resolve disputes at sea over contested whales. These customs were remarkably effective as litigation was rare and violence even rarer. Legal scholars such as Robert Ellickson have correctly pointed to these customs as an example of how close knit communities settle disputes without recourse to formal legal institutions or even knowledge of the applicable law. Ellickson's belief, however, that these whaling customs were universally followed at sea and were - in turn - adopted by courts, is not entirely accurate. While courts often deferred, in part, to whaling practices, judges and lawyers were also active participants in creating the property law of whaling. British courts at the turn of the nineteenth century did much to advance one whaling custom over a competing practice. In the 1820s, British lawyers and judges applied the emerging action of interference with trade to whaling disputes and thereby reintroduced aspects of the custom their predecessors had previously rejected.

This paper provides the preliminary results of a convenience sample of ninety MDL orders from 2003 to 2009. The study investigates the rationale for transfer of federal civil litigation by the Panel, where cases are assigned, and to whom. The purpose of the analysis is to identify factors that explain past transfers by the Panel, both to particular districts and judges. The results provided here represent a draft paper submitted to the Conference on Empirical Legal Studies for possible presentation at its annual meeting in November 2009.

A cornerstone of the law and economics approach to standard form contracts is the 'informed minority' hypothesis: in competitive markets, a minority of term-conscious buyers is enough to discipline sellers from offering unfavorable boilerplate terms. The informed minority argument is widely invoked to limit intervention in consumer transactions, but there has been little empirical investigation of its validity. We track the Internet browsing behavior of 45,091 households with respect to 66 online software companies to study the extent to which potential buyers access the associated important standard form contract, the end user license agreement. We find that only one or two out of every thousand retail software shoppers chooses to access the license agreement, and those few that do spend too little time, on average, to have read more than a small portion of the license text. The results cast doubt on the relevance of the informed minority mechanism in a specific market where it has been invoked by both theorists and courts and, to the extent that comparison shopping online is relatively cheap and easy, suggest limits to the mechanism more generally.

Every state in the United States has laws which prohibit sexual activity with individuals under a certain age. These laws are typically strict liability. Generally, they are justifed under the auspice of protecting young women from 'predatory' older males. However, nobody has examined the effectiveness of these laws. Using data from the National Longitudinal Surveys (NLSY), and exploiting the differences in the laws among states and over time, we examine whether the laws restricting the number of legal sexual partners delays the sexual debut of both males and females. We find that the laws are successful in accomplishing these goals. Overall, an additional 1 year of potential partners leads to about a 10% increase in the probability of sexual debut at any age.

In this paper, I examine the consequences of the changes in the administrative procedures for appeals in immigration cases for circuit court judges. I discuss these changes and offer a model of decision making in immigration appeals. By analyzing a newly collected dataset of immigration decisions, I find that these reforms have dramatically changed how judges make decisions in immigration cases.

The rise of globalism has allowed businesses to expand their chains of production across the world and forced them to compete internationally. This expansion of competition has also extended to the labor market, as workers must now often compete with other workers from around the globe. This increased competition has put severe downward pressure on wages and compensation, while at the same time making it far more difficult for workers to press for improvements in the workplace. The result is a growing need for employee collective action, combined with a decreased effectiveness of such measures.

This Article examines the main strategies for employee collective action, including coordination among foreign employee groups, pressure on employers to adopt codes of conduct or other voluntary labor standards agreements, new types of employee groups that focus on the needs of workers in the global economy, and government action that promotes labor standards and rights in the global economy. None of these strategies has produced substantial gains for workers thus far, and it is quite possible that this disappointment will continue for the foreseeable future. The effectiveness of these strategies will likely improve as employee groups become more adept at finding the combination of the techniques that provides the most benefit in a given situation; however, the competitive pressures of globalism will always remain as a significant impediment. This Article therefore argues that the only real hope for genuine improvements in the workplace - particularly for low-wage employees - is government action. Whether through domestic legal protection for employee collection action or pressure on other countries in support of labor standards, government action remains the best, albeit far from assured, hope for workers in the global economy.

Using jurors to ascertain public opinion on sentencing has a number of advantages over other methods. Jurors' opinions are based on informed judgements rather than uninformed, intuitive responses and they have detailed knowledge of the offence and a sense of the offender as a real person. Using a sample of jurors from Tasmanian courts, this study examined the utility of using jurors to gauge public opinion on sentencing and as a means of informing the public about crime and sentencing issues. Results indicate that the opinion of jurors towards sentences is not as punitive as public opinion polls would suggest and it would appear that specific knowledge of a case may moderate harsher sentencing attitudes. While there is evidence that jury participation increases confidence in the criminal justice system, the study found that pre-existing perceptions about lenient sentencing may be difficult to change. This was particularly the case when it came to sentencing for sex offences, where jurors were least satisfied with sentencing severity. The study determined that despite there being potential issues around obtaining truly representative population samples, surveying jurors as a means of ascertaining informed public opinion about sentencing seems a good option. A useful view of the general public's opinion on appropriate penalty levels for particular crimes can be elicited, along with their knowledge of crime and sentencing matters.

Malcolm Gladwell takes a critical look at the popular Southern & legal saga, To Kill a Mockingbird.

Legal sociology is in a crisis - or so it is said. The field is not widely represented at Law Faculties today and, the claim goes, is in dire need of a new spirit. Meanwhile, scholars who are working in the area cover a wide array of research questions, ranging from criminology to family law, from urban governance to transitional justice, illustrating thus a fine sensitivity for important and fast evolving areas. This paper argues that indeed our times offer a great host of promising opportunities for legal sociological research. In midst of a truly dramatic economic crisis where anchoring points and orientations have been upset, a broad search for adequate regulatory responses is underway. In this climate of reassessing the lessons of reflexive and responsive law, of legal pluralism and 'law & society' with view to their re-invigoration for our times, legal sociology is itself seemingly undergoing a transformation of its own: today's research methodology must pay heed to the advances made since Weber, Durkheim, Ehrlich and Gurvitch and translate them into a distinctly cross-disciplinary context, comparative and transnational context.

28 Law & Soc. Inquiry 691 (2003)