Cross-national case studies have indicated that compared to other economically advanced democracies, American methods of policy implementation and dispute resolution are more adversarial and legalistic, shaped by costly court action or the prospect of it. To what extent are lawyers responsible for creating American-style adversarial legalism? This article argues that while adversarial legalism stems primarily from enduring features of American political culture and governmental structure, the legal profession plays a significant independent role in promoting and perpetuating this mode of governance.

In contrast to American understandings of abortion as a uniquely tragic dilemma, the Israeli abortion issue is a tangential controversy in a larger debate over the relationship between the state's national and democratic identity. The divergent paths of abortion politics in Israel and the United States reflect important differences in underlying religious doctrines, geographical size, feminist ideologies, and the immediacy of other social cleavages. More profoundly, the two abortion stories are the product of distinct understandings of the mutual obligations between citizens and their state and of the relationship between individual and collective rights and duties. While these differences may account for the capacity of Israeli activists on both sides to forge pragmatic compromises, the stability of these policies is uncertain both because of changing Israeli priorities and the import of American conceptions of the abortion dispute.

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?

As scholars and activists have addressed the problem of violence against women in the past 25 years, their efforts have increasingly attuned us to the multiple dimensions of the issue. Early activists hoped to change the structure of power relations in our society, as well as the political ideology that tolerated violence against women, through legislation, education, direct action, and direct services. This activism resulted in a plethora of changes to the legal codes and protocols relating to rape and battering. Today, social scientists and legal scholars are evaluating the effects of these reforms, questioning anew the ability of law by itself to redress societal inequalities. As they uncover the limitations of legal reforms enacted in the past two decades, scholars are turning—or returning—to ask about the social and cultural contexts within which laws are formulated, enforced, and interpreted.

What organizational and community conditions influence legal officials to treat rape victims “unresponsively”? Our analysis is guided by Goffman's theory of organizational frameworks and frames of activity and March and Olsen's institutional theory of organizations. Using data from 130 organizations in Florida that process rape cases, we compare six types of organizations (including hospital emergency rooms and rape crisis centers) on eight criteria and review their frameworks and frames of activity relative to unresponsiveness. We use the issue of victim legitimacy to illustrate the utility of our model. Our results show that well-meaning staff in legal organizations are oriented to routinely treat victims unresponsively. Their organizations routinely orient them to be concerned with, for example, public approval, the avoidance of losing, and expediency more than with victims' needs. In our conclusion, we identify ways legal officials and rape crisis centers can promote responsive treatment of victims. We also call for research on legal organizations that are responsive to victims and for a nationwide discourse on the “politics of rape victims' needs” as a means of addressing the gender inequality issues that underlie rape crimes and laws and orient legal officials to treat victims unresponsively.

Disputes between officials and citizens during tax enforcement differ from most civil disputes between citizens in several ways: They are initiated when the officiat claims the citizen has not followed the law; they are fundumentally about the cowect interpretation of the law; and the official has the formal power to end the dispute within the enforcement arena by making a decision that is legally binding on the citizen. Using data from pre-audit interviews with taxpayers and state tax auditors, we explore how these characteristics of tax disputes, the roles of the parties, citizens' perceptions of the attitudes and orientations of the officials, and other contextual factors drawn from regulatory and procedural justice research affect the strategies officials and citizens prefer for resolving disputes. We close with some evidence on the predictive rekwance of the strategic preferences of the parties in combination with their roles: For new resolutions to emerge, the party with the power must be open to them, and the subordinate party must have the assertiveness to present them. We also explorate how the analysis may be extended to other enforcement and regulatory settings.

Marianne Constable's Nietzschean foray into American legal writing is a contribution simultaneously to both theory and history. The latter deserves special mention, for despite the very important legal theory currently being played in a Nietzschean key, legal history has largely remained immune, caught in a range of liberal and critical approaches. Constable in this essay takes a familiar body of thought and interrogates it with a stunningly new set of questions. What looks like the checkered career of “democratic culture” to a writer like Morton Horwitz becomes the descent into the lowest stages of hell for Constable, a journey to the deepest recesses of nihilism.

The republication after 40 years of T. H. Marshall's Citizenship and Social Class signifies a revived interest in sociolegal historical approaches to citizenship rights. For decades students have been guided by Marshall's classic treatise. But can Marshall's argument for the causal power of the “transition from feudalism to capitalism” continue to provide an adequate grounding for sociolegal approaches to citizenship and rights formation? Building on Marshall's path-breaking expansion of the concept of citizenship, I use institutional analysis and causal narrativity to present an alternative explanation. I argue that modem citizenship rights me a contingent outcome of the convergence of England's medieval legal revolutions with its regionally varied local legal and political cultures, not of the emergence of capitalist markets.

Ever since the formation of an academic bar, one which left the “practical world” of apprentices and clerkships barely 100 years ago, the architects of law's intellectual life have looked outside the canons of lawyers' law to academic life and its deep thinkers for stimulation. From the German social scientists of Pound's time to Foucault in our own, the erotica of the legal academy have often been drawn from French and German philosophers and social theorists. There may be, in fact, a pattern to this inclination in America to draw insights from the “wild passion” of the French or the “dark terror” of the Germans. There is certainly an ongoing effort to avoid England in both its commonness and its construction of the “savage” or the ethnographically primitive “other” on which English law based its authority for so long. American sociolegal intellectuals, as part of the legal academy, crave a hit of the “other” on the continent of Europe, having denuded the American forests of its native occupants.

At the wheels of railroads and streetcars, the law of accidental personal injury, known as negligence, became a discrete body of law between 1870 and 1920. The defining component of negligence was “fault”–the notion that the individuals (injured and injurer) must have failed to act according to some minimal standard of caution. Theorists of the history of negligence have explained that the conduct of all was measured against what a “reasonable man” would have done under the circumstances. The author here challenges this fundamental assertion. Through trial records, lawyer's written arguments, and appellate opinions, she reconstructs the critical role of gender in shaping the law of accidental injury. As she argues, in 19th- and 20th-century America, injury was a gendered event. The fact that courts in these years held men and women to different standards of care undermines theorists' arguments that economic considerations drove the law of accidental injury. Moreover, the reification of gender nm in private law, in turn, vitally affected the experience of gender in turn-of-the-century America.

How might feminist law reform serve all women? The author explores this question within the context of sexual violence involving girls and women with developmental disabilities. She presents the difference impasse as a theoretical tool for understanding how women are positioned in law differently and unequally in relation to each other. She explores how, within the consent framework of a rape trail, competing social narratives or subtexts about race, class, gender, and disability circulate in the courtroom. She also explores the issue of pity in rape traiIs and argues that focusing on interlocking systems of domination and on our complicity in maintaining categories of women in law and law reform is a useful approach for feminist law reformers.

Marianne Constable's essay, “Genealogy and Jurisprudence,” brings the intellectual history of the law and society field within the framework of Nietzsche's six-stage history of metaphysics. Reorganized within that framework, the work of particular law and society scholars is seen to represent stages of thought about the relationship between the world of appearances described in empirical research and the possibilities for human action. Successive movements among law and society scholars pass, like Nietzsche's history of metaphysics, through stages of “error” (positivism, empiricism, critical legal studies, interpretive studies, constitutive theory), moving closer to complete acceptance of the view that action need not follow either legal rules or empirically described patterns and, thus, can be free.

In this article, the author, a former prosecutor and a former assistant public defender, draws on his five and a half years of experience as a “professional plea bargainer” to explore the many subtleties of a practice that he suggests leads to work avoidance, misplaced loyalties, coercion, and other negative characteristics on the part of courthouse regulars, and to injustice for those criminal defendants who do not wish to plead guilty. He suggests that criminal courts have become overly dependent on plea bargaining, which is used much more extensively than is either necessary or appropriate.

In this exploratory cross-cultural study, we use interview data from representatives of social service, criminal justice, and policy-making agencies in two capital cities (Washington, D.C.) and Madrid, Spain) to compare responses to domestic violence within each country's sociolegal and cultural context. While both countries have patriarchal structures, there is great difference in the history, funding, development, and participants of the battered women's movement. For instance, in Spain the government determined the appropriate response to domestic violence from the onset, whereas in the United States the power to frame, find, and respond to the issue operated through a more insidious process of state cooptation. In both countries, wider social changes did not result; rather, services were provided as the movements became tied to finding requirements and to satisfying bureaucratic exigencies. Within this context, we analyze respondents' perceptions and interpretations of domestic violence as well as the institutional practices and future strategies proposed for continued social action.

In an era of rising crime and youth violence, skyrocketing homicide rates in the inner cities, strapped municipal budgets and overwhelmed courts, what could be more untimely than a call to reduce plea bargaining and devote more resources to holding jury trials? Yet the issue of bargain justice, like the proverbial bad penny, stubbornly refuses to go away. The concern persists, not only for a lonely band of academics but also for many ordinary citizens, that plea bargaining compromises our aspirations to justice at the same time that it undermines the effective punishment of serious offenders.

Every age must find its own particular meaning for the biblical admonition, “With much wisdom comes much sorrow.” Every age must come to terms, in its own way, with the fact that the quest for knowledge is not an unproblematic social good, that the world is neither ours to be known nor, through knowledge, mastered. How our age learns these lessons, and whether it will do so at all, is the question that animates Marianne Constable's “Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law.”.

Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.