LS 184 Key Terms

Deterrence vs. Normative Approaches

Deterrence Theory-Assumes that people are generally rational actors; Certainty is more important than severity-Severity matters more where certainty is high; Sanctions are best at deterring instrumental acts and actors with a low commitment to crime as a way of life Jack Gibb's Deterance Chambliss: Characteristics of Acts and Actors Antunes and Hunts: Sanctons Theory Normative Model- People comply with law more because of law's legitimacy and its consistency with morality than because of sanction threat; Most research shows a greater effect of peer pressure than of sanction threats; Moral suasion matters more when it comes from peers or tight social networks Tyler-legitimacy Mark Schultz "Jambands" reading ties in as example of the Normative Model

Certainty vs. Severity of sanctions

Deterrence Theory: Certainty: the chance that you will be caught and punished Severity: how serious the punishment is Celerity: how fast punishment is applied Antunes & Hunt (1973) Assumption: Deterrence = Certainty + Severity Reality Deterrence= Certainty + (certainty x Severity) Certainty matters most Severity matters only where certainty is high Ex: death penalty and drunk driving it is more likely to get caught aka Certainty is high and severity is high therefore deterrence will come into play

Structuralism

o Social theory that highlights the role of social structures in shaping human behavior, beliefs, and culture o Note: Culture is posited as dependent upon structure (as opposed to the main source of law oSocial structure exists independently from individuals within society o Would not change because fairly permeant and grounded into society o Emphasis on structure often de-emphasizes human agency. o What we do is dictated by social structures o Developed in Europe in the early 1900s; associated most with Claude Levi-Strauss, but also with Marxist structuralists (Karl Marx, Louis Althusser).

Alternative dispute resolution (ADR)

...1970s-arose out of a strong critique of formal litigation; was an early focus was to empower people to get them more involved in the process. There were criticisms to the adversarialness of litigation/lawyers (destroyed relationships) ADR was cheaper, easier and faster Formal alternative venues for dispute resolution_ This is the umbrella term for alternative modes: ---Arbitration & mediation-Has become much more prominent in a variety of settings. It's less formal than litigation, much less constrained; some forms of ADR to involve lawyers, but many do not. the decision maker is much less powerful than a judge and in some aspects may just be a facilitator Internal complaint procedures within private organizations- Grievance procedures, open door policies, ombudsperson Other-Private judges, peer mediation, restorative justice

Restorative Justice

...Most often used in the criminal setting, or when there's a clear perp and victim Facilitated meetings between offenders and victims, and sometimes other parties- seeks to repair the harm caused by criminal behavior and to transform the relationships Emphasizes direct encounters, forgiveness, making amends, repairing relationships Used experimentally in some prisons, schools, workplaces, communities There are critiques- eg domestic violence; Many feminists argue that it re-victimizes the victim for having them reencounter their abuser see Jill Filipovic

Law & Society Movement

--An interdisciplinary scholarly enterprise founded in 1964 premised on discovering how law operates in society --Like sociological jurisprudence & legal realism, L&S is skeptical of liberal legal model --Influenced by the social movements of the 1960s in that many (but not all) L&S scholars use empirical techniques to identify ways in which law protects the status quo EARLY Law on the books vs. law in action (gap) The nexus of law and custom (law-culture connection) The relationship of law to other social structures (law-structure connection) The relationship of law to social class (law-power connection) The social process of rights mobilization (law-power connection) Dispute resolution (and alternative dispute resolution) (culture,power) LATER --Law in everyday life & legal consciousness (culture, structure, power) --Legal pluralism (culture, power) --Law and Social Movements (power) --How movements failing can cause later successful mobilization -- Law and Organizations (culture, structure, power) --The relationship of law to race, gender & sexual orientation

PIE (perceived injurious experience)

...Naming: "Perceived Injurious Experience" (PIE) seeing that something is wrong; perceiving an experience as an injury

Arbitration/ Pre-dispute mandatory arbitration clauses

...Arbitrator is a decision maker (like a judge) Common in labor and insurance disputes § Arbitration: theory is that they are rational (just like the liberal legal model judges are nuetral arbitrators are supposed to be the same way)-unconscious incentives to not be neutral (Galanter-Repeat player) • Industry -arbitration Arbitrators generally conform to the norms of the industry in which they arbitrate and sometimes look to written arbitration decisions (this is not always applicable) In labor arbitration, there are strong norms about what the outcome should be (arbitrators tend to be specialized) Binding/non-binding; arbitrators decisions is final- Judges are very deferential to arbitrators' decisions and reverse only if arbitrator oversteps authority; They almost never overturn what the arbitrator does unless they feel that they were negligent Pre-dispute mandatory arbitration clauses used commonly in employment, other settings to waive formal rights Becoming much more common; though not seen as legitimate in the 90s, the courts didn't recognize these.

Judicial deference to symbolic structures

...Argues that judges seeing that there are mechanisms in place to uphold non-discrimination in the workplace, they tend to side with the employer more or will leave the blame on bad management in interpersonal affairs rather than the true cause. Edelman argues that they fail to consider whether the structures in place are effective Uses Leopold v Baccarat as an example of Legal Deference:Leopold was being sexually harassed by supervisor (he threatened to replace her with someone young and sexy, but employer pointed to its policy against sexual harassment and the court ruled in their favor stating that: "The law is very clear that any reasonable policy will do"

The power of silence (and "not taking it personal")

...As mentioned below in the reading, Women have found that it is harder to rise in the workplace if they take sexual comments/jokes personal. Beth Quinn suggests that women benefit from silence and "not taking it personal" But this also ties in with another concept we've discussed with is the survival view (Bumiller)-people don't want to feel victimized and prefer to stay silent to keep their status within their small community.

Instrumental vs. expressive crimes

...Characteristics of criminal acts Doing it for the pleasure of it (buying/using drugs) v material interest to be gained (selling drugs) Expressive: are rewarding as ends in themselves; Hard to deter because actors act out of passion, often in the moment Instrumental: are a means to reach some other goal; Easier to deter because actors are more likely to consider the costs of noncompliance Chambliss: • Characteristics of criminal acts (expressive v instrumental) • Characteristics of Actors who Committee Crime (High v low Commitment to Crime as a Way of Life) Interconnected and determine the severity of the crime *memorize CHART

Dispute

...Claiming and Disputes Claiming: Asking for a remedy (not always legal claiming) Naming→ "PIE"→ Blaming→"Grievance"→ Claiming→ "Dispute" The dispute might go to court

Open vs. Closed Range

...Closed Range: Farmers have the right to sue for crop damage (rancher is strictly liable for damage) Open Range: Ranchers have the right to graze cattle on unfenced land (rancher is not liable for damage) An economist cares about which of these regimes is more efficient for society The way that it is, if the crop damage outweighs the fence fee, no fence is built and one has a transaction cost to worry about; If the fence outweighs the crop damage, they build the fence Reading: Ellickson, "Of Coase and Cattle"

Symbolic structures

...Edelman, Erlanger and Lande 1993, Edelman 2016 suggests that IDR is an example of symbolic structure (human resources dept) We've seen how EEO law:reinterprets the law as a good management requirement and reframes legal claims in managerial terms (poor management, interpersonal conflict) Resolutions deemphasize and depoliticize EEO rights. Edelman brings up the example of diversity in the workplace and how every company strives to achieve/prides itself in it's diversityShe mentions that most companies have a "non-discrimination policy" and an employee complaint procedure should they feel discriminated against but argues that just because these mechanisms are in place, does not mean that we are actually living in a discrimination-free world She argues that diversity symbols are equated with legal compliance

Naming, Blaming, Claiming

...Felstiner, Abel and Sarat Naming→ "PIE"→ Blaming→"Grievance"→ Claiming→ "Dispute"

Coase Theorem

...Given clear legal rights and no transaction costs, people will bargain to the most efficient outcome, irrespective of what the law says As long as the law is clear, people will bargain to the most efficient outcome. However, legal rights are rarely clear and transaction costs are rarely zero Politics of the Coase Theorem Conservative: Law should establish basic legal rights, then leave the market alone Progressive: Given transaction costs or unclear law or externalities, regulation is in order

Bargaining in the Shadow of Law

...How much does law matter when people are resolving their disputes out of court? A lot of research on divorce settlements Mnookin and Kornhauser: bargaining in the shadow of Law (1979) See private ordering ○ Factors in Bargaining (Mnookin and Korhauser) ■ Bargaining endowments (what the law gives each party) ■ Transaction costs (the costs of bargaining) and parties' ability to bear them ■ If you don't have the money for a lawyer, you basically accept whatever is available under settlement ■ Preferences of parties ■ Opportunities for strategic behavior ■ Risk preference ■ Are you willing to take it to court and see what a judge will give you? ■ Desire to make a point in court ■ Eg spouse was a jerk and I want everyone to know ○ Implications of Mnookin and Kornhauser's Argument ■ Negotiated outcomes generally follow legal rules (with some adjustments for risk tolerance, goals, strategic behavior) ■ Negotiation avoids costs and produces better arguments ■ Negotiation may make parties feel better about the outcome ○ Critiques of Mnookin and Kornhauser ■ What about power? ■ Power as well as law affects the outcome of negotiations ■ Where do preferences come from? ■ Prevailing social norms and culture affect preferences What about the social context of divorce?

Internal dispute resolution (IDR)

...Internal to organizations- for example: grievance procedures, open door policies, ombudspersons Increasingly common in work places Decision maker is usually part of management structure, though there is not really a neutral (HR/management) Sometimes interested in moving up Parties are generally unequal-Eg supervisor/employee, professor/student, hospital ombudsperson/patient, pastor/member Lots of variation in how IDR is implemented

Dispute pyramid/dispute tree

...Only 5% of PIEs are adjudicated There were issues with the old pyramid (focused on legal mobilization-rights within the legal formal system); the vast majority of complaints don't make it all the way. It doesn't take into account the amount of disputes that are solved outside of the legal system. Types of dispute resolution that falls outside the pyramid: Extralegal Action: taking into your own hands, handling it through relatives/friends Quasi-legal action: title 9 officer, someone inside the company to handle the dispute There isn't a singular path of the pyramid-it's more like a tree and some of the branches are dead ends and others are low hanging (easy to access), you can go up multiple branches at once (eg talking to lawyer along with in-house arbitrator while talking to clergymen). They believe that tree is more accurate than the pyramid § Pyramid • Naming • Blaming • And claiming • People slowly filter out PIEs and the UPIES input into pyramid incident that does or does not lead § Concieving it as a tree will allow for it as it is more accurate to cenceptualize albistine, edelman, and milligan

Grievance

...PIE: Blaming: Grievance You can't have a grievance unless you both name and blame Ones social status effects mobilization; often reflects the power of society and the law

Adversarial legalism

...Policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation Characterized by formal legal contestation and litigant activism Advantages: open to new kinds of justice claims, flexible, creative, serves as check against official corruption and arbitrariness makes corporations more responsive Disadvantages: Inefficient complex, costly, punitive, unpredictable 2 attributes: Formal legal contestation: Parties go to court, make filings, discovery of fact; lots of procedure Litigant activism: Fact finding-all the work is on the parties to the case. Though not true for bureaucratic decision: EPA (environmental protection agency) would have to do fact finding first and are in charge of presenting evidence Social, political, economic consequences of adversarial legalism: -High cost (relative to other mechanisms) -Legal uncertainty: The law is malleable, changing -Juries: uncertainty too since they don't leave a record of their reasoning -Transaction costs for changing policy, running a firm, making a rule. . .(inefficiencies) Kagan's adversarial legal system: the American way of law --Americans desire for these idealized "pursuit of justice" and fragmented power (the governement's checks and balances not one branch hold all the power adds to the existance of the system IT should be aboloished but it will not be because of america's factors

Mediation

...Really came into play in the 1970s/80s; people didn't want a formal decision maker, they wanted parties to be empowered to make their own decisions Especially good for women? Mediators are not formally trained in the law usually, they look for win-win solutions Third part is "neutral" and facilitates rather than adjudicates disputes Mediation tends to be very informal and mediators are often volunteers and training is generally very short The ideal is that the mediator helps the parties resolve the dispute on their own and they reach a decision that is mutually beneficial ("win-win") Lawyers are generally not involved in the mediation itself although they may advise the parties outside of mediation "Killing Us Softly: Divorce Mediation and the Politics of Power" Penelope Bryan, former dean Whittier Law School (1992) Imbalances in: · Income · Education · Decision-making POWER · Social status · Self esteem-women have lower status · Expectations of reward-what people went into it—more often the women would come out bad Influence outcomes of divorce mediation And tend to favor men If women get better jobs and stay at home dad becomes more socially accepted

Regulatory capture

...Regulatory capture occurs where the interests of the regulators become aligned with the interests of the regulated- In other words, the regulatory agency becomes more attentive to the interests of the regulated industry than to the legal ideals and/or the public interest Revolving door Who's going to be the regulators? They need people who know about them (from industry to back in the industry). There is a lot of potential for the regulators to work with the industry Regulated industries have economic clout. Especially when your talking about the aviation, auto, defense, drug industry-viewed as critical to the American economy, if they say that they can't do something by a set goal, they tend to be listened to. Law travels up rather than down ties between regulation organization and regulatees Macaulay findings • DMV rarely revoked licenses • Referred most complaints to Wisconsin Automation Trades Association, which developed a reputation for fair adjudication of disputes • DMV facilitated mediation instead of engaging in hard enforcement • Informal role This soft enforcement worked in both parties favor because they didnt need to go to court and invest in more fee and they also were able to maintain their relations DMV saved money and time because they did not care Win win dealers had more bargaining and manufactures could enter in negotiations and abide by agreements In various ways administrative agencies-instead informal roles as a mediator Maccaulay: because they decided to use soft enforcement with the DMV ---------------------------- Regulatory Capture: regulators and regulated interest are aigned • Regulators go to work into industry after • Regulated have a lot of power to influence the industry ○ Banks were choosing their own regulator ○ Administrative agencies ○ EPA issue regulations to control ○ NOT sexual harassment § What makes it difficult to regulate? • Even when an individual is interested in regulating it and having the power • Regulatory capture • DMV although had the power decided to facilitate mediation with the Winsconson Automation Trades • Easier to engage in soft medidation ○ Lack of resources ○ Desire to maintain connections with the regulatory industry

Disputes as social constructs

...Research on the transformation of disputes views disputes as social constructs, which means that: Disputes are defined and transformed by social forces and the legal system Disputes evolve over time based on social characteristics; social forces transform the dispute before they hit the courts Social forces affect the evolution of disputes Legal claims often change the nature of disputes or even notions of who Once someone decide to make a claim, this may change the way they think about the dispute. ------ Dispute as social contracts § Distributes does not exist outside of social contracts § Disputes how different levels of disputes get constructed § Study context of disputes emerging the ways society precieve disputes go into § As not being independent from society whether we precieve outselves will depend on other factors • Agents of mobilizations • Socially constructured views that determine the disputes a • Norms and customs and social processes that occur within social context that cause it to be a dispute ○ Social factors and social constructions to see whether we get to the point of sarat, felstiner and abel

Agents of transformation

...Social actors who influence the emergence of disputes Eg media, lawyers, doctors, union, social movements, social movement organizations Anyone that can help you figure out if an injury is a legal issue Can affect naming, blaming, and claiming

Specific vs. General deterrence

...Specific deterrence refers to the person being punished. Specific deterance refers to the deterance of potential offender who have been legally punished. General deterrence refers to the effect on the general public, who may be afraid of being punished. General deterrence refers to deterrence of potential offenders who have not been punished Whats more effective depending on the offender and the experience Refers to the Jack Gibbs reading on deterrence CRITQUES Hard to regulate without expressive crimes, people with crimes, hard to regulate lack of respect of authority, and if peers have a different understanding of the belief more likely to follow their peers.. Jack refers to Certainty (chance), Severity (serious), celerity (how fast), and how the offender is precieving the punishment. Specific vs. general deterrence § Specific deterrence • I am going to punish you from going to jail § General deterrence • I put you in jail to stop everyone from Jack gibbs: neither is quite right Gibb's critique • Cant measure someone not doing something • Not measuring deterrence • Level of punishment do you need of deterrance

"Lumping It"

...There are so many factors involved in legal claiming: finding a lawyer, financial costs, emotional costs and delayed resolution So most people "lump it" (give up) "Lumping it" § Do you mobilize the law and just give up People accept situations § Felstiner, abel and sarat-people just decide to just decide to lump it § Elkson Lump it through neighborlessly as more important--conforming to social norms because it benefits them but seeing § Critique: gossip and prayer not essentially lumping it as it is a means to a different end as gossip might be clearing their head and prayer might be providing spiritual guidence

Bargaining endowments

...This is basically what the law gives each party Transaction costs (the costs of bargaining) and parties' ability to bear them: If you don't have the money for a lawyer, you basically accept whatever is available under settlement Other things taken into account: Preferences of parties Opportunities for strategic behavior Risk preference: Are you willing to take it to court and see what a judge will give you? Desire to make a point in court: Eg spouse was a jerk and I want everyone to know Bargaining Endowment § Law and economics ties § Law and economic prespective • Law is a tool in their own things • rights being used as a starting point in a negotiation Coarse: the most economicly thing will be done open and open or closed determine given the conditions § Clear legal rules § Transaction costs Legal rights so in closed range the rancher is responsible for fencing their own property --if the economic thing is to build a fense then it will be to build it Open range if it is their responsible to build a fense because it is economic Tool to start negotation =law doesn't matter who pays for it =gives too much creedance to law Elkson: people don't know, have other norms =people will not abide by this law • Background conditions that law provides • What the law is and what the judge would do if it was litigated • Divorce proceeding start with ○ Divorce mothers could split her custody that she would probably negotiate shared custody

Rational actor perspective

...Under Law and Economics, the perspective holds that people will act rationally and bargain to the most efficient outcome based on rules

Legitimacy and Morality

...Under the Normative Model: Morality: law is morally right; You obey because it's morally right, not because of the sanctions Legitimacy: it is important to follow the law; Generic, the law is the law and I respect it; law in general is legitimate Tyler-Legitimacy • Obey the law because it is the moral thing to do and second the law is legitimate • Tyler found that the substantial majority (70-90%) of adults believe that laws should be obeyed regardless of personal preferences. • People would shock the other people even violating their principles but they believed in the legitimacy of the experiencementers follow the law even if it doesn't agree with Jamband-Schultz • Declaratory argument o Legitimacy idea is that once there is a law of something tends to be a coalecent or consensus...people comply with it --Bands are seeming legitimate by their community because they allow for live recordings and there is reprocecity between the band and fans --incentivized to comply o ex: Antidiscrimination laws-law created a morality Recap of Normative Model • People comply with law more because of law's legitimacy and its consistently

Legal endogeneity

...When the court defers to symbolic compliance structures that evolve within organizations, law becomes endogeneous-meaning that the the law is determined more within the organizational world that law is meant to regulate

Transaction cost

...the costs of bargaining and parties' ability to bear them If you don't have the money for a lawyer, you basically accept whatever is available under settlement

Legal mobilization (aka rights mobilization)

...the process of invoking one's legal rights Very few laws are self executing-a lot of laws create rights (civil, health related); a lot are not self executing (the right to a healthy and safe work place, the right to equal protection under the law) these aren't jumping out to protect you, you kind of have to use them yourself (make them effective) Why is legal mobilization important? Mobilization affects the development of law If people do not mobilize their rights, and those conflicts never get to court, then they don't have the option of ruling on those issues and thus does not affect future law; You have to realize that your rights have been violated-define the violation as a legal issue.Legal system is passive-it won't jump out to protect these rights for you. Mobilization affects law's ability to bring about social change. In order for the law to change, people have to mobilize their rights, lawyers will find a plaintiff to mobilize their rights to invoke social change. The average everyday problem, if you don't mobilize your rights, the law doesn't have the potential for change. Mobilization affects the social construction of meaning. Law shapes how we understand the world

Soft vs. hard enforcement

..Formal (theoretical) Administrative agencies act only within the scope of, and according to, their legislative mandate Hard enforcement-actual use of authorized sanctions The direction of enforcement is downward (from regulators to regulated) Informal (empirical) Administrative agencies develop informal roles Soft enforcement (not using a hard sanction-letter?), with selective hard enforcement The direction of enforcement is bidirectional (the regulated influence regulators) Examples: Education/consultation Persuasion Forbearance-Overlooking violations if you fix them Bargaining Selective hard enforcement: occasional use of formal sanctions Mixture of these enforcements are used Macaulay

Common Consciousness

1. Von Savigny Theory: Law is "the expression of common consciousness" o Common consciousness=shared cultural understanding · Law clarifies and reinforces custom. Argued that at first law matched customs and then legislation becomes necessary to enforce customs when there is any deviations from customs. At first law is the same as customs but as society becomes differentiated law clarifies and reinforce it...law becomes necessary when ambiguities and conflicts arise and need to be solves and necessary to reinforce custom when deviations occur Malinowski: Theory · Law is "a body of binding obligations kept in force by reciprocity and publicity inherent in the structure of society." -law as any binding obligations enforced socially · No requirement of state law{no reinforcement-understand it as mutual obligations}; law = custom · Noticed people organized their right when someone violated these rights people came back in an orderly way—customs functioning similar to law. · Trobriand Islanders - Found in this "savage society" law, order, definite privileges and a well-developed system of obligations. NO police but people organized their lives by the implicit rules and behaviors accepted by everyone-when someone violated other would react disapprovingly and even though no rules state enforcing the rules, Malinowski defined them as a rules because they function similarly to state law. Crime and Customs in a savage society: ceremony exchange of a braclett and necklace refers to it as the cola ring exchange—even though these "Savage culutres" have no rules they islanders are have evidence showed common culture and law like rules even as primitive people...uses example to argue that customs is a fact of law.

Relative Autonomy of Law

Argument 2 (Relative autonomy of law prespective): Law is relatively autonomous (relatively separate) from the interests of capitalists but upholds capitalist interests in the long run, in part by increasing the hegemony of capitalists o The Relative Autonomy of Law [Louis Althusser] Law is semi-autonomous from the interests of the capitalist class and the state (which is assumed serve the interests of the capitalist class). Rather, law supports the long-term interests of the capitalist class Mediating conflicts among capitalists (e.g. antitrust law) Obscuring capitalist power and protecting capitalist hegemony Laws benefiting have nots obscure the class conflict the differences in interest hid the power of the capitalistic class and make law seem fairer and therefore reduced the probablity of class conflicts Explain marx incorrectly predicted socialism Marxist sees in a sociological perspective see society in conflict terms of haves and have nots Degrees of Legal Autonomy Weber Lousie Althusser SPECTURM: Complete autonomy -Formal Rationality -Law as relatively autonomous -Law as a tool No autonomy

Base & Superstructure

Base & Superstructure Marx: supersture comes out of base and base reinforces the super Economic Base o The economic or material base consists of: Means of production: tools, machines, factories or worksites, raw materials or supplies o Relations of production o Social divisions given by mode of production In capitalist economy according to Marx: capitalists and workers In capitalist society today: capitalists, managers, workers Law support economic base by employing economic sanction Superstructure Law as apart of the superstructure is manipulating our beliefs (equal protection-legal fairness); law makes us think that its fair and therefore manipulating our beliefs. o All aspects of society that are not directly involved in production Politics, Culture, Science, Law, Education, Religion The superstructure provides the ideology that supports the economic base and it is determined by the material forces (consuisoness of society) of the economic base and it will protect the interest of the capitalist class NOT the structure or culture A form of conflict structuralism;economic is not protected for cohesion Marx on Law o Law is part of superstructure o Law reflects and is determined by the economic base o Law reinforces and reproduces the economic base o Law protects capitalist productive and social relations(not social solidarity) Marx would not agree with Weber MARX Not agree that formal rational law of western society shows autonomy from the economic political institutions Marx would say law is a means for enforcing economic relation and determined by those relation protect interest of capital then interest of works Marxist is the origin of the conflict theory

Battle of the forms

Battle of the forms § Maccualy contract article:handshakes § Even when buisnesses think they enter they don't because of bioler plate forms (set of preexisting forms and that are used) § Send back other boiler plate and not talk about § Hey we have abinding contract • Contracts don't matter because even matter they arent aware of the terms because they both have these boiler plate froms and they each side their side but not signing the same form • Legally not agreeing to same terms because forms are different so not legal or binding ○ How contract law doesn't even matter ○ Even when not using § This doesn't come up becausee resolved by gentleman's agreement

Double Institutionalization

Bohannan Theory: law requires something more Law as double institutionalization · First some set of norms becomes institutionalized (widely accepted), a custom [taken for granted] · Then, it is restated [Restated or formalized within the law] and given a special status as law · Cultural Lag occurs as legal insitutions need to recognize the customs · Not every custom is a law according to Bohannan: For example [stand facing the back of an elevator] o However Malinowski would say it is law as it will caused others to shun them BUT Bohannan would say that the action would have to be reinsitutionalized and enforced by law to be a law SO not a law but a norm so doubly institutionalized [not every custom is enforced] Llwellyn and hobble: within book talked about a norms within the shayan that borrowing things among shyan was fine but it wasn't clear if it applied to minor items or major things like borrowing a horse. Shayan grace borrowed the horse...first time that it raised this concerned..went to chief's council (formalized specialized legalized) and although the borrow horse was aligned to custom recognized the ambiguity in custom à respond to this and creating a law

Consensus Versus Conflict Perspectives

Consensus vs. Conflict Perspectives Consensus o Law supports society as a whole ;predespotion nature of law that most members of society are better off with law promoting consensus Consensus Approach Assumptions o Cultural version of consensus story: law clarifies and institutionalized shared customs and values Shyan brave horse borrowing clarifing the abiguity o Structural version of consensus story: law coordinates productive activities and regulates and controls conflict; smoothly coordinated by law LAW BRINGS SOCIETY TOGETHER ALL BETTER OFF WITH LAW THEN WITHOUT; consenus with compromise law is necessary and reflect agreement. Conflict o Law tends to benefit some groups at the expense of other groups; sees society critically of exisitng social and critical; no neutral benefit a specific good Who benefits, who gets to be able to have sees law as empirically unequal..not benefit everyone. Conflict Models: Basics: Law is linked to struggle (not consensus) over: o Cultural values o Material wealth o Law is a instrument (tool) of oppression. o Promotes the interests of dominant social groups over the interests of subordinate groups.-ruling class and ruling elite 1960s women's movement advantage men, civil rights movement & Black Lives Matter movement on how law advantages blacks, Example: Contract Law from Concensus & Conflict Perspective Consensus Perspective o Parties freely and voluntarily enter into an agreement (voluntarism) o Parties negotiate to reach a fair exchange (bargaining) o Both parties benefit from the agreement (consideration) Conflict Theory o Parties often have little choices about agreements o Parties rarely have equal bargaining power o One party often benefits much more than the other from an exchange [Von Savigny-Common Consciousness=cultural understanding. ] [Malinowski law=custom] [Bohanna: Law Requires more:double institutionalization] [Sumner:Law is similar to norms-folkways:law can not change folkways] All see law essentially grounded with culture

Cultural Model

Cultural Model Early Cultural View: social group's laws are rooted in its · Values: what people commonly perceive as good or evil · Norms: socially accepted and Promulgated proper rules for behavior · Customs: beliefs that are so ingrained and widely shared they are not explicitly taught Consensus View of society Consensus is the equilibrium state of society-widespread agreement among members of a particular society about values and norms. · This view sees society as highly cohesive. · Focus is on order and the preservation of order. Critiques of consensus view: · Tends to overlook differences in interests and power. · Tends to overlook conflict and disorder or see it is fleeting. · Tends to preserve the status quo. Developmental process as the needs in society shift a change in law.

Folkways

Folkways: law ways can not change folkways (customs within groups unquestioned and passed down) · Sumner's theory: law is similar to norms · Law can not change group ways of doing things and solving problems o Folkways are equivalent of customs and customs evolve into norms and some evolve into law o Law should grow out of norms; law is a sort of crystalized customs § Sumner points that if you have law that does not come out of custom the law will not be effective to change custom because it is out of sync with culture · Sumner is saying when a law is out of sync with customs people will not follow Examples: law seeks a change in customs but people do not obey it o -abortion...legal abortion, prohibition, assisted suicide o 18th amend -Gusfield [political science]-the symbolic crusade -Women's temprence movement- prohibition was a widespread failure because people would drink urban Catholics and Jews were big drinkers despite the protestant movement (Novel: Symbolic crusade) · Cultural conflict between urban v. protestant: result was a widespread failure -Most enforcers would assist in smuggling the liquor -speakeasy locations to drink · Legal smoking Bars · Many states have complete smoking bans, some partial, and no smoking bans—smoking in the us become more effective All saw laws essentially grounded within culture—studying isolated areas undeveloped work READINGS: Rogers v American Airlines (cornrolls); Heger and Corl in Female Genital Cutting (violation of women's rights committed laws against this yet the laws are disregarded), Keck-Courts in LGBT context

Formal Rationality (Formal Rational Law)

Formal Rationality (formal rational law) o Modern Western Law (formal rationality) o Decisions through deductive logic based on set of general rules generated by legal system o Characterized the modern westernized system o Formal Rationality (very similar to "Rule of Law") o Rules are universal and general o Legal rules form a logically clear, internally consistent, gapless system § Every possible situation will be governed by law o Legal decisions are made by reason, controlled through the intellect o Law is autonomous from other values systems such as religion or politics o Very similar to "the rule of law," the idea that all people and institutions (including rulers) are subject to law-general rationality Formal Rationality and Capitalism o Weber contended that the development of formal rational legal systems was connected to the development of capitalism ... o Provided the predictability necessary for capitalist exchange. o Ideal type of law formal rational thought is important and relevant to capitalism..formal rational law provides the predictability need for capitalism to enter in deals. o As the structure of formal rationality produces stability & predictability and allows for capitalism to function-- he is connecting law and the economy o not a functionalist argument because he is not claiming that formal rationality is necessary to the preservation of social solidarity. Rather the Weber was ambivailent of formal rationality because he thought it was too formal because the difficulties of bureaucracy..so essentially he is not saying formal rationality preserves social solidarity BUT formal rationality is necessary for capitalism the two evolve together NOT for society to function. o Formal rational and capitalism develops together and go hand and evolve today Role of law: in coordination, conflict resolution and social control legal system that comes out in Weber's definition of law.

Hegemony

Hegemony is an invisible form of power, constituted through ideas and knowledge, rather than through coercion. [Antonio Gramsci] Law is hypothesized to be a form of hegemony because it obscures the power and dominance of the ruling class. How law supports capitalist hegemony:Contributes to idea that we live in a fair system Individual Rights: Obscures group interest ---Hegemony theorist: Argues that law encourages us to look at it as a an individual and indivudal means does not provide a lot of group based ways to exercise. Blind Justice: Obscures inequality --Problem is that we all do not have the same resources. Many of the principles that they protect Law as an ideological (way of thinking ) device and powerful much more powerful --Law and the legal system change how we view the world allowing us to accept certain political postures powers. --State will pursue some things like antitrust acts, private property, and contracts that enforce tend to obscure and legitimate capitalist exploitation channels the potential conflict into nonviolent forms like individual lawsuits...state will prusue things that look right antitrust acts to make the law seem legitimate Culture models and conflict ideology --Culture models shared ideology in a way benefiting everyone --Marxist conflict theory law as an ideological tool of the haves and have nots Matthew Desmond --Eviction law benefiting landlords over tenants --These evictions shaping lives of single poor black women and mother --Women evicted in shadow of law... studying class and race injustice how Marxist plays out theoretically relationship between law and culture Law as an instrument so it is a tool (Law is a tool of the capitalist class, used to preserve power and control over material wealth) OR Maintaining hegemony (law as Relative Autonomous)-serving long term interests of capitalist and producing & law produces capitalist hegemony producing consent while preserving capitalist power. Serving long term interest of capitalist and produces hegemony NOW o Conflict/Critical Approaches- Contemporary sociology of law approaches that emphasize class, race, and gender biases in law Perspectives include: -Critical Legal Studies -Critical Race Theory -Feminist Legal Theory -Queer Theory -Crip Theory

Mechanical Versus Organic Solidarity

Homogeneous society get shared Mechanical solidarity (works like a machine) get shared customs which get a collective conscience which allows for law to act repressively to just punish necessary deviants and therefore reinforces the collective conscious · {the culture is a product of structure form of law arises from collective consciousness...} Structure of society [mechanical solidarity] dictates the culture [Collective conscious] which dictate the form of law ...[repressive law] then indicates [mechanical solidarity] law as an index for social cohesion Structure of society [organic solidarity] dictates the cultures divserse norms which dictate the form of law ...[restitutive law] then indicates [organic solidarity] law as an index for social cohesion · {the culture is a product of structure form of law arises from collective consciousness...}

Legal consciousness

How people think about law and/or how law influences peoples' thinking. · When do people think about problems as legal problems? · How do people use law or rights in their everyday lives? --Agent transformations that allows for people to name --Calavita about the law in everyday life and about how the media is working hegemonically as a 3rd dimension of power

Consensus Versus Conflict Perspectives

I THINK THIS IS A REPEAT

Internal vs. external perspectives on law

Internal Perspective on Law: [Legal Profession/some legal scholars] o Logical relation of legal rules o Focus on law on books o Assumes autonomy of legal rules o Sometimes critique outcomes on basis of logical inconsistencies, policy goals. External Perspectives: [Sociologist/some legal scholars] · Ambiguity of legal rules · Focus on law in action · Social context matters · Culture matters · Social stratification matters (especially class, race, and gender)

Law & Economics vis-à-vis Law & Society

Law and Economics --Legal rights provide a framework for economic bargaining --People use legal rules as bargaining chips to maximize their profit in dispute resolution (taking into account costs) -LandE emphasizes people as rational actors that bargain to the most efficient outcome based on rules --includes t Law and Society Disputing is shaped more by informal norms than by legal rights; Norms matter Social Sanctions and moral pressure (rather than legal penalties) discourage deviance may matter more than the formal legal rules LandS norms matter, people deal with informal norms to resolve issue; law matters as a backdrop/threat, but doesn't directly matter on how people negotiate --- Law and economics § Approach it differently § Assumes rational actors=predict which legal rules will be economically efficency, § when is it good to regulate things and when is it good for the market § Transaction costs: how much it costs to do buisness § Externalities: cost bore by people not involved by people within the exchange • Elikson of an economist of law but one that tries to show things empircally than one that tries to show a rational actor § Accepts capitalism: as a good thing..even if we can is something what is best for the functining on marx § How you would distinguish: rational, pursuing optiimal for themeselve Law and society-norms, culutre and structure influence how law is being used--assume that there is no such thing as a rational actor (non rational factors) that contribute to this

Law As Instrument

Law as Instrument How does law benefit capitalists? o Argument 1 (Instrumental argument): Law is a tool used by the capitalist class to protect their interests. Note capitalist class is unified and has the same interest Law as a policing and law is controlled and manipulated by the capitalist class; police court is not viewed neutral tools of administration (property & employment law) Law has no autonomy from the capitalist class and the capitalist class is viewed as controlling the state so no autonomy from the state. Law as an Instrument of Capital o Law is a direct instrument or tool that capitalists use to maintain their power o To maximize capitalist profits o To protect property owned by capitalists o To control the working class Contract law endorsing the capitalist Chambliss: Vagrancy Statutes in England Forerunner to vagrancy statute (1274) Intended to relieve "overcharged" and "impoverished" religious organizations Did not criminalize this just said they don't have to give alms to the poor [1348: Bubonic Plague] First Vagrancy Statue (1349): Intended that people "be compelled to labor for their necessary living" -This law shifted to ensure a supply of affordable labor -The law restricted serfs' ability to flee feudal bonds -By making travel difficult -The laws forced laborers to accept low wages -By setting the wage -By criminalizing other means of survival -Vagrancy statutes and Social Structures 1349 Breakdown of Feudalism → ruling class: landowners and vagrancy statute enforces serfdom -New focus 1500 Rise of Commercialism→ ruling class: Merchants & Vagrancy statute controls suspected thieves -Dangerous to have unemployment people as they suspected to be thieves because they were not working -Chambliss is a conflict theorist-he sees law as enforcing the use of the law by the feudal lord then merchant class adapting to fit the needs of the dominant class. Critiques of Instrumental View of Law Why would the ruling class use law rather than direct force? Many laws do not directly benefit the ruling class -Health and safety laws -Workers compensation laws -Welfare policies -Wage and hour law -Civil rights laws These don't seem straight forward.. Perhaps breadcrumbs

Law in Action (vs. law on the books)

Law in action describes the way law works in our society. It is the empirical reality of law. Looking beyond formal law to how legal institutions, legal actors and legal rules function in society. Documents how law works and how law depends on social context, social roles, and social expectations. Law on the books (formal law) includes Constitution (Federal and state laws), Statutes (Federal, State, local), Administrative Rules about and issued by governmental agencies, & Case law (Judicial rulings that create precedents). EX: Edelman's description of symbolic structures and the lack of people utilizing them

Legal endogeneity

Legal endogeneity exists where the meaning of law is shaped by widely accepted ideas within the social arena that the law seeks to regulate Ex: antidiscrimination policies and grievance procedures become so widely accepted that they become accepted means of compliance even when they are ineffective like HR and symbolic structures How does law become endogenous? --Compliance professionals inflate the risk --Organizations comply through symbolic structures (HR, safety officers, Affirmative Action) Many symbolic structures are merely symbolic: they don't offer substantive benefits Courts defer to symbolic compliance EDELMAN her peice on working law about sexual harassment in the workplace being settled at summary judgement rather than going to court because of the symbolic structures that are accepted by the court

Legal Pluralism

Merry-multiple normative order (set of rules) in the same social space (1988) o Pockets of communities that follow a mixture of rulings; rules and norms essentially following normative orders Merry's concept concept developed my sally merry · Modern law often coexists with indigenous law in colonized societies. (classical legal pluralism) o Indigenious v state law (native American rule and state American law) · In any complex society, there are plural forms of normative ordering (new legal pluralism) o Subculture, rules of immigrants, ideas of different normative orders that are juxiposed in society (sometimes they align sometimes they don't) · Derives in part from Sally Falk Moore - "semiautonomous social fields" (1972, similar concept) o Pockets of communities that follow a mixture of rulings; rules and norms essentially following normative orders In any social space likely to have the different normative orders

Tort tales

Michael McCann, William Haltom, & Anne Bloom Java Jive (2001) • On corporate power to reconstruct the narrative and the spread of "tort tales". o Any little injury "tort tale" o Stella Lieback seemed to be unreasonable within the media and McDonalds was able to control through corporate links Hot Coffee-protrayed this tale in the media Calavita alluted to the media having these hegemonic influences and being able to see this law in everyday life

Cultural Lag

Many laws reflect cultural beliefs between right and wrong—law lags behind changing customs [the right to use canabiss] · Time-lag between something is institutionalized as customs or should it be reienstitutional withing law · The more advance will take a while to be crystalized law is an expression of customs · Law moving slowly and lag is occurring—hypothetical of gay marriage · Few stated and some practices within the bay area laws the culture -cultural prespectives; law is not followed cultural immediately. EX: fed canabis Bohannan explaining cultural lag: 1. Legal institutions need to recognize the custom 2. Agree on the desireability (weed: Washington and oregan) 3. Mesh this with previous ideals 4. Then the legal institution needs to figure out how to communicate this law · All these things take time and the more elaborate the system the greater time · Cultural lag doesn't mean it is bad but it just needs time. Rogers v. American Airlines (1981) [declared all braided hair style to be an "easily changed characteristic" even if socioculturally associated with a particular race or nationality—it is not impermissible basis for distinctions in application of employment practices by an employer.

Pluralist vs. Conflict Perspectives

Pluralist Perspective Law reflects shifting coalitions between cross-cutting interest groups --Part of various groups have particular interests --Society contains a large amount of interest of ethnic racial groups exist as part oc many of these groups --Each groups have interest, the only way to get it is through coalitions --Structural perspective Society has a wide range of interest groups can be overlapping · Power is dispersed Sees law within reach of each group by which groups can pursue social change; justifying the status quo as a product of a successful coalition Not reflecting the power of classes Because they overlap these coalitions are unstable Pluralist acknowledge power difference Friedman and liwiski article: coalition of interest representing everyones' interest workers and employers Conflict Perspective --Law reflects elite interest in preserving hierarchy --Power is concentrated in ruling class

Repeat players vs. one-shotters (haves vs. have-nots)

Power in Litigation Galanter- understanding power in the dispute resolution context Galanter: One Shotters vs. Repeat Players One-Shotter - a party whose encounter with the legal system is an isolated event o Someone who is only going considered with the decision o An employee in an employment descrimination Repeat Player - party that engages in and anticipates repeated litigation --Galanter Does not say they are wealthy- repeat players engage in litigation and also have sufficient wealth to take advantages of repeat player advantages --Able to settle cases that will provide bad precedents and take those cases that will be good precedent are taken to court • Stella Liebeck sued McDonalds over coffee that burned her. Repeat Player Advantages -- "Advance Intelligence" o know that they are going to engage in law soon o right into the contract favorable terms so they are structuring the transaction it favorably. --Lower start-up costs o Lawyers on retainer know their situation; know they are starting from scratch --Economies of scale o Lawyers develop same legal brief and same forms to make each individual cases less costly because they are similar cases ----Greater familiarity with the law and legal institutions o Tend to know judges, lawyer, clerk, when to fight and when to not fight—less intimidated o One-shoters would ask the lawyer what they can get them o Repeat players will use laywers to get what they want --Long term strategy to play the odds o Litigate the stronger case to decide which cases to devote resources and which to settle • Shape rules to favor their interests o By litigating strong cases or lobbying to change rules • Tabacco: put a lot of money to start ordinaces that will restrict smoker's rights • Anticipate future litigation MORE LIKELY TO GET MORE SETTLEMENTS when 2 insurance companies-resolved informally; with two 1 shotters more likely to get a settlement Not a routine transaction for the one shotter and more likely to end up in court and still only the case that 5% end up in court -need to go back What could one shotters do to compensate for their rights? • Organizing together (NAACP, Unions,)—gives them some repeat player advantages • Class action lawsuits ways for one shotters to be together o All lawyers are to the extent a repeat player Galanter: Why the Haves Come Out Ahead - Factors besides parties • Lawyers are limited in their capacity to equalize parties • Institutions are passive and slow • Rules often favor the haves or require mobilization on the part of have-nots.

Rational Actor vs. Constitutive Perspectives

Rational Actor vs. Constitutive Perspectives Rational Actors · Law is external to social life Cost benefit analysis · Law is a tool that shapes social practices--marx and neo marx o Deterring bad behavior (through sanctions) o Rewarding good behavior(through rewards) Insturmental view of law carrots and sticks suggesting people would ensure their behavior is in their best interest Constitutive View · Law is inseparable from social life; consituting how we think · Law creates concepts that affect how we see the world o Shaping meanings /identities o Obscuring alternatives to dominant social practices Criminal law labels criminal and has social meanings of criminal Marriage is a social institution and has constitutive consequences yet under the law is shaping ----- Constiutive • Law creates some of the concepts of out lives • Law is in part created by it READING: Kitty Calavida: hegemonic aspect of law and law is intertwined with life Deterrence model assumes that people are rational actors to determine whats in their best interest also No matter the crime the people are acting as rational actors within the law. ---- Deterrance cost and benefits to behavior as a consitutent view as law is internal and other things considering beside cost ---prespective that builds on rational actors to explain compliance with the law

Repressive Versus Restitutive Law

Repressive vs. Restitutive Law o Émile Durkheim classical structural fuctionalist (view law as a way of law producing social cohesion-used law as an index of social cohesion o Studied: suicide rates—introduced that law can be an index of social cohesion Law is both: o A way to preserve social cohesion o An index of social cohesion Social structureà customs/normsàType of law Repressive Law: Homogenous Society (small homogenous-multiplex society; work side by side)("Mechanical solidarity") Shared customs/norms: everyone has the same brain ("collective conscience"-everyone in society shares the same brain)à Repressive Law: necessary to repress deviants (punitive law is simple because similar) criminal Homogeneous society shared multiplex society creates a Mechanical solidarity (works like a machine) get shared customs which get a collective conscience which allows for law to act repressively to just punish necessary deviants and therefore reinforces the collective consicious · {the culture is a product of structure form of law arises from collective consiciousness...} o Structure of society [mechanical solidarity] dictates the culture [Collective conscious] which dictate the form of law ...[repressive law] then indicates [mechanical solidarity] law as an index for social cohesion Restitutive Law: -Diverse Society with a division of labor (lawyers, dr, etc)("organic solidarity") -Diverse Customs/Norms -Restitutive Law ("Cooperative") smooth functioning contracts, property coordinate law ...structure becomes an index of social solidarity o Structure of society [organic solidarity] dictates the culture [Collective conscious] which dictate the form of law ...[restitutive law] then indicates [organic solidarity] law as an index for social cohesion Structure comes first!! · Function of reinforcing law is serving the function of solidarity · Marx was wrong empirical studies show a combination of both laws at play; Resitutive and repressive as society gets more complex more repressive as well · But studied because he made this connection between law and society

Rule of Law

Rule of Law (Law on the books) o the idea that all people and institutions (including rulers) are subject to law o associated with formal rationality aka law in the books what law should be o weber saw law as a separate Law is externally guaranteed by the probability that coercion (physical or psychological) will be applied by a staff of people especially holding themselves for that purpose o a distinctive legal body the judicrary that is spate from other forms of government, religion, capitalism and separate

Collective Conscience

Shared customs/norms: everyone has the same brain ("collective conscience"-everyone in society shares the same brain) apart of mechanical solidarity as the society is multiplex and therefore is able to have common culture essentially everyone is able to have this collective conscience so that the usage of law is able to be repressive as to repress the deviants

Sociology of Law

Sociology of law is an intellectual project in which empirical [information received through senses] data are used to describe and explain the behavior of legal actors and ultimately develop theoretical explanations of the relationship between law and society. Became important because of Marx and other english sociologist [Law and Society Movement (1960) as an interdisciplinary movement involving sociologist, politicians scientist, ect....using empirical analysis to observe law] Sutton's

First, second, & third dimensional power

Stephen Lukes' typology of power First dimensional power (Lukes) o The power of actor A over actor B is the power of A to get B to do something that B would not otherwise do. o E.g. race riots of 1950s o Wanted to smoke something illegal but didn't; defines power as domination; power doesn't involve force and domination more subtle type of power Second dimensional power o The power of A to keep B's point of view out of the decision-making "non-decisionmaking" • Voter disenfranchisement-voters are being kept from their rights • Black lives Matter movement • Republicians keeping Eric Garland away from the floor o Or to keep B from expressing a complaint or point of view Third dimensional power o The power of A to keep B from realizing that B has a grievance • If you can not even name then you cant really realize -most subtle o "Preference Setting" Power • Misinformation/propaganda • Persuasion • False consciousness/hegemonic control • An example could be sexual harrasment's symbolic structures Power in Dispute Resolution First dimensional • A wins the dispute in court or in settlement • Better able to endure litigation • Hires better lawyers, experts, etc. Second dimensional • A intimidates B so that B does NOT mobilize the law Third dimensional • Through misinformation or hegemony, A leads B to believe that everything is fine, so B doesn't even think about mobilizing the law (does not realize that this is an issue) o Happens through hegemony

Structural Functionalism

Structural Functionalism o A particular type of structural theory in which the structures of society are viewed as necessary to ensure social stability or survival. o Like the parts of a well-oiled machine, or the human body o Circulatory, respiratory= all necessary for human survival o Current system if it isn't necessary it would not exists o Social structures are understood as necessary to social stability and survival. o Sees society as a complex system whose parts work together to produce stability. (has to exist because it is critical or o Because each structure exists to preserve social stability, . . .The social theorists' goal is to explain why the current state is necessary (functional) for society? Critiques of Structural-Functionalism (not of structuralism generally) o Overlooks distinctions within society o Assumes that what is "functional" for society is good or necessary for all elements of society o Doesn't explain change and upholds status quo o Overlooks conflict and distinction and divsions... o what is functional for society is good and neccessary o often case it serves interest of folx o Interest of one group like capitalist over the other working class Critiques of Structuralism o Empirical inconsistencies o Ignores or oversimplifies role of culture o Ignores law's normative aspects

Rights mobilization (aka legal mobilization)

Taking action to assert one's legal rights • Naming a problem as legal • Attributing blame to a responsible party • Asserting a claim (perhaps through legal channels, but sometimes through more informal social channels) READINGS: NAMING BLAMING AND CLAIMING ARTICLE Quinn Bumiller

Social Structure

The distinctive stable arrangements through which human beings interact - e.g.: and are linked o Political State o Economy o Family o Law o Religion o Science o All are interconnected but exist independently of individuals...Because all these structures are connected it provides stability o Social structure matter in shaping behavior more than culture o Basic structural position: society is interdependent with one another § Science changes, education adapt, govt adapts,

The gap (between law on the books & law in action)

The gap refers to difference between what the formal law says (law on the books) or what the formal law assumes about social behavior and the law in action. These studies refer to empirical analyses of the gap. EDELMAN

High vs. low commitment to crime

Theorizing deterrence has many factors including Characteristics of Sanctions, Characteristics if Criminal Actors and Characteristics of sanctions! In particular the Characteristics of criminal actors.... Highly committed: way of life, that's what they do-"professional" thieves, drug dealers, terrorists Low commitment: may park illegally one time, but its not their way of life-Parking violators, casual shoplifters, occasional drug users Chambliss: • Characteristics of criminal acts o Expressive v. Instrumental Acts • Characteristics of Actors who Committee Crime o High v low Commitment to Crime as a Way of Life • Selling drugs for profit, poachers for profit, robbing bank

Liberal legal model

aka Formal Legal Model)--weber similar to formal rational model The liberal legal model assumes that politics are constrained by legal boundaries Governments are the primary locus of legal control Law origniates in legislatures-NOT form courts law is downward --Legal rules derive from a body of normative principles (Constitution) In theory, all of our law flows from constitution --Rule of law applies (Government power is exercised in accordance with law) Law of rules not a law of men--those in power are subject to rules -- Legal rules are clear and form a rational system (formal rational) --Legal rules reflect general social norms (cultural perspective) --Courts are impartial --Legitimacy of our legal system rest upon these ideals. How is the law and society movement responding to it... where has the emphasis been in this class Martin Shapiro's Formal Model of Courts An independent judge Applying pre-existing norms After adversary proceedings --To achieve a dichotomous decision in which one of the parties is assigned the legal right and the other is found wrong Formal model that fits the liberal legal model

Private ordering

individuals privately negotiate disputes in the shadow of the law (having the law in mind and what an outcome would be if you were to take it to trial) May negotiate arrangements different from public policies embodied in divorce laws By bargaining, parties come to an agreement that better reflects individual preferences Law provides a kind of baseline How much does law matter when people are resolving their disputes out of court? A lot of research on divorce settlements Mnookin and Kornhauser: bargaining in the shadow of Law (1979) Private ordering and bargaining in the shadow of law § Private ordering=people deciding what to do privately § Instead of using law and in that process it might come out as bargaining endowment but the idea is that it will allow people to bargain essentially without allowing people to use laws § Law being used to resolve disputes people come into private bargaining endowment

Compliance professionals

professionals within and around organizations that play a role in constructing the meaning of law and compliance Compliance professionals engage in a "risk framing of the legal environment" to encourage compliance "[W]rongful discharge lawsuits are proliferating across the country against employers. It is an era that will be marked by growing challenges to the traditional concept of employment at will, posed by the wrongful discharge assault" (personnel administrator 1985) Brought up in lecture by Edelman [T]he employer success rate is approx 9%. That means that employees are wining 91% of the time, at least in CA, and with an average jury award of $400,000 (personnel journal 1984) Bringing up absurd figures to support In fact, employers won about 65% in receptive states and 95% in unreceptive states. Average award was $188, 278 in receptive states; $7500 in unreceptive states The articles were lying/greatly inflating the risk because they want the employers to follow the law also, they inflate their own importance to the organization Compliance professional inflate risk to -Get employers to respond -Increase the market for their services -Increase their own power within organizations