The Magistrate Act of 1968 (Pub. L. 90-578, tit. I, § 101, 82 Stat. 1113) introduced a new tier of judicial officers into the federal district courts. As a result of this act and two amendments (Pub. L. 94-577, § 1, 90 Stat. 2729 (1976); Pub. L. 96-82, § 2, 93 Stat. 643 (1979)), magistrates may now work on a wide variety of civil and criminal pretrial tasks at the discretion of Article III judges; indeed, with the consent of both parties, magistrates may hold jury trials in civil cases. In addition, the act and the amendments encourage courts to delegate “additional duties” to magistrates with a view toward developing innovative work relations between two tiers of judicial officers.

Since both groups are lawyers, magistrates and Article III judges share the same formal training and professional expertise. Organizationally, however, magistrates work for federal judges. There is the potential, therefore, for a wide variety of work relations between these two tiers of judicial officers. The history of magistrates' “professional project” (Larson, 1977) to expand their formal duties, their autonomy and control over decision making, and their organizational status provides a useful entry point for analyzing recent developments in judicial work relations, the subject of this article.

I will first report the results of a study of U.S. magistrates. These findings suggest a typology of three distinct patterns of response to these new judicial officers: additional judge, bureaucrat, and team player. I next consider why courts opt for the occupational models they do. Finally, I speculate about the implications of the variations for understanding contemporary developments in judging and judicial process.

The interrelationship between the formal structures of law and the informal social control structures originating at the private and community level (private justice) poses difficult questions for lawyers and sociologists alike. For the legal profession the question concerns the impact of law on social institutions, the community, and on the individual. For the sociologist the inverse question must also be included; that is, what is the impact of various sociopolitical levels of society on the formation of law?

Over the last century there has been significant growth within our society of practices that distribute costs and benefits to individuals based on statistical knowledge about the population. These actuarial practices like insurance premium setting and standardized testing in educational admissions are successful largely because they allow power to be exercised more effectively and at lower political cost. At the same time they generate ideological effects which have the potential to transform the way individuals understand themselves and their groups. In a 1977 case, Los Angeles Water and Power v. Manhart (435 U.S. 702), the United States Supreme Court considered a challenge to the actuarial use of gender in setting employee benefits. The case and the debates it generated illuminate the danger posed by the ideological effects of actuarial practices to our political culture in general, and to traditionally disempowered classes such as women in particular. At the same time it illustrates the limitation of traditional legal rights discourse as a means of resisting these dangers.

In this paper we investigate a largely unrecognized but nevertheless important chapter in the legal and political history of Soviet Marxism: the simultaneously coherent and contradictory theoretical tendencies in Lenin's pronouncements about law, legality, and delegalization (“the withering away of law”) during the socialist transition. We identify and discuss these tendencies as they unfold against the historical background of the Russian Revolution. We argue that Lenin's political and theoretical objections to legal formalism greatly contributed to the tragic neglect of constitutional mechanisms needed to secure the radical democratic motives of the revolutionary process.

This article reconstructs Marx's approaches to the critique of the public/private distinction in law and analyzes contemporary approaches to public/private distinctions in legal studies. Specifically, I focus on three approaches to critiquing the public/private distinction as legal ideology. These approaches are identified in works by Balbus, Klare, and Kennedy. They have affinities with Marx's analyses and demonstrate the incoherence, mystification, and consequences of public/private distinctions in legal discourse and practice. The article demonstrates that the ideological critique of the public/private distinction is characterized by alternative methods and substantive issues. These approaches, I argue, differ because they are concerned with distinctive objectives of inquiry, different arenas of social action, and have distinct purposes.

Private Justice examines disciplinary practices in different workplace settings (i.e., hierarchical, participatory, and cooperative) in light of theoretical debates about the relationship between social structure and human agency, on the one hand, and the relationship between formal and informal law, on the other hand. This book challenges us to rethink how these relationships are conceptualized in a wide range of sociolegal theories and it examines the organization of “private justice” or nonstate law, in workplace discipline. Itzkowitz states that Henry succeeds in showing the “existence” of private justice, but he argues beyond that Henry's integrated theory of law is limited in a number of ways. Among its limitations, according to Itzkowitz, is that the aspiration of integrated theory not to separate parts (i.e., structure and action, formal and informal law) makes it “difficult to know where the analysis should begin” (p. 954). Rather than oppose the aspiration for integrated theory, Itzkowitz argues that “an integrative theory of law requires a different approach” (p. 960). Itzkowitz's disagreements with Henry exemplify some of the contemporary debates in law and social theory. In particular, as I read Itzkowitz's comment on Private Justice, he takes issue with two aspects of Henry's approach. First, he questions the utility of legal pluralism as a methodology and/or basis for integrated theory. Second, he questions the value of approaches that deconstruct relations of social control as opposed to those that predict which forms of law will prevail under certain social conditions.

When Kermit requested that I write an essay for this Review, an ambiguity in his letter led me to inquire whether he wanted me to write about legal history written in the twentieth century or legal history written of the twentieth century. Unraveling that ambiguity had the queer effect of deflecting my attention from the fact that I was in the process of agreeing to write about a subject that seemed to me to be close to nonexistent. To check out that perception, I sent my super-diligent research assistant out to search the relevant periodical literature published during the last fifteen years. A bit to my surprise he came back with a longer bibliography than I had expected and the observation, “I had a difficult time deciding where to draw the line between history and casenote.” It seems to me that this observation just about sums up the problem and perhaps it is important to discuss that problem as we look at this largely nonexistent field in the hope that by the time there is a field there may no longer be a problem.

Schlegel is right. It is difficult to swallow the notion that twentieth century history began twenty years late. I agree that the central issue for legal historians is the growth of the nation state's apparatus. We should indeed be concerned with the regulation and direction of an economy. Yet my own preferred date for the beginning of twentieth century legal history is 1901. More precisely, I would pinpoint 2:15 A.M. on September 14, 1901, the morning Theodore Roosevelt became President (Pringle, 1956: 163).

I recall vividly taking part in a session just over a decade ago at a meeting of the American Society for Legal History titled “New Directions in Legal Research.” Two young legal historians presented a paper in which they took to task some of the luminaries in the field for not writing “truly social histories” of the law. (I will not mention the names of the young historians who presented the critical paper; but those readers interested in knowing names can employ the traditional research skills for which we historians are noted). The two iconoclasts attacked Lawrence Friedman's A History of American Law (1973), William Nelson's The Americanization of the Common Law (1975), a series of Morton Horwitz's articles that became the basis for The Transformation of American Law, 1780–1860 (1971, 1972–73, 1974, 1977) and even Willard Hurst's impressive body of work (1950, 1956, 1960). Although the session was held late on a Saturday afternoon, the discussion following the paper was spirited. It struck me, however, that all of the examples of influential but ersatz legal history presented were on eighteenth and nineteenth century subjects. So I was moved to ask: “What about twentieth century American legal history?” The quick and clever answer from one of the paper readers was: “We don't care about twentieth century legal history, that's just the history of ideas with a little constitutional law thrown in.” This drew laughter from the audience, and the discussion quickly went back to Horwitz, the fellow servant rule, nineteenth century instrumentalism, and other pre-1900 matters. I should add that the glib young historian soon after this meeting left the writing of legal history behind, attended law school and, I am told, is now a comfortable partner in a major West Coast law firm. Perhaps there is a lesson in this, but it was lost on me.

Lawrence Friedman is a rare and remarkable phenomenon. He is a counter who thinks and a thinker who counts. He is aware of paradoxes such as the fact that “Everybody is an individual; everybody is also a conformist” (1985b: 102). More specifically, Friedman is particularly knowledgeable about the limitations and unpredictable consequences of efforts at legal reform. Yet, surprisingly, he seems somehow to be able to escape transforming his healthy skepticism into cynicism.

The idea that Americans are inherently litigious has for so long been imprinted on the American mind that it has been accepted as conventional wisdom, and observations to the contrary seem counterintuitive. Whether one looks at the contemporary media, insurance copy, American Bar Association literature, or speeches by leading judges or Evangelicals, or academic writings such as those of Kagan (1981) or Auerbach (1983), the generalization is there: Americans are a litigious people, “the most litigious people in the world,” according to the many public presentations of the former Chief Justice of the U.S. Supreme Court, Warren Burger. The challenge to the notion that Americans are inherently litigious has come in the form of careful examination of the statistics used to support the increase in litigation theory (Galanter, 1983, 1986), and surveys comparing data from the United States with that of other industrial democracies (Johnson and Drew, 1978). In Praying for Justice Greenhouse uses another kind of data, and while her book does not disprove the stereotypical image of the litigious American, at least she offers another picture: of Americans who not only avoid legal action but who have even developed a set of injunctions against conflict and the voicing of interpersonal disputes. Greenhouse's book is part of a growing body of work that finds, contrary to the popular stereotype, Americans seem to prefer avoidance, or negotiation, to other modes of dispute resolution.

Modern studies of the spatial patterns of crime have drawn much of their inspiration from the empirical tradition established by Shaw and McKay (1942). Theoretical principally in their kinship with the economic/ecological focus of the “Chicago School” of sociology, the Shaw-McKay studies carefully plotted crime locations and residences of criminals in relation to a model of urban functional land use. Their findings, and those of other investigators writing in the same tradition, show strong and lasting correlations among crime locations, offenders' residences, inner-city areas, nonwhite populations, and urban poverty. With its emphasis on simply locating criminals and their activity in urban space, this approach encourages a pathological view of the problem. Crime is observable wrong behavior and its spatial patterning an indictment of the inner city.