Analysis of courtroom testimony heard in London's Central Criminal Court in the 10 years following the McNaughtan acquittal (1843) reveals the effort of medical witnesses to establish a distinctive and essential voice in the Victorian insanity trial. Three trials that illustrate this effort are examined for the manner in which practitioners of mental medicine distinguished their opinion from the layperson's fact and, in the process, engaged pivotal issues for the determination of criminal responsibility. Their testimony and the attorneys' questions that elicited it suggest that whatever reliance the judiciary might have placed on the McNaughtan Rules to confine testimony to the defendant's capacity to “know right from wrong,” medical witnesses devised ways to circumvent and indeed dismiss the relevance of this particular inquiry.

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their lawmaking function and raises questions about the legitimacy of law.

In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These findings suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal.

Feminists' opposition to a state trial judge in a retention election provided an opportunity to explore important issues about legal consciousness and differences between negative and affirmative resistance. Three questions about legal consciousness and resistance are addressed: What effect does an encounter with an allegedly bad judge have on people's legal consciousness? Under what circumstances will people engage in negative or affirmative resistance against a legal encounter they perceive as unjust? What instrumental effects on institutional practices and what constitutive effects on legal consciousness can such resistance have? The article draws on narrative analysis to explore the conditions for transformation of legal consciousness and mobilization of political action in a judicial retention election.

This article traces interconnections between folk knowledge—the everyday, taken-for-granted understandings and beliefs that shape people's perceptions, actions, and reactions to events and situations—and legal action. It examines the consciousness of crime and punishment as that consciousness comes to bear when citizens are given the responsibility for the life or death decision made by jurors in capital cases. It seeks to identify the sources of both general and specific folk knowledge about the release of convicted capital murderers not sentenced to death and to elucidate the construction and concentration of such knowledge. One state—Georgia—where folk knowledge of early release is distinctively concentrated and different from other states serves as a strategic site for the analysis. Using Capital Jury Project (CJP) data from 3-4-hour interviews with 916 jurors in 11 states, we show that it is jurors' specific release estimates that influence their capital sentencing decisions, and we explore how folk knowledge figures in jury deliberations, despite court admonitions that such considerations are not to play a role.

This research note calls attention to some basic but rather neglected questions about life in the legal profession: Are lawyers happy in their work? Do patterns of stratification within the profession translate into differences in work satisfaction? Does satisfaction with different components of legal work vary across employment statuses and practice contexts?

Given that job satisfaction is a highly subjective phenomenon, some sociolegal scholars may question its value as an object of social scientific inquiry. I argue, however, that to ignore the question of lawyers' happiness is a mistake. Despite their limitations, studies of lawyers' work satisfaction can be useful in several ways. First, job satisfaction can be viewed as a stratification measure, complementing more traditional measures such as income and hierarchical position. If satisfaction is unevenly distributed within the profession in some systematic way (e.g., if women are less satisfied than men or if minorities less satisfied than whites), we might interpret this uneven distribution as a form of inequality and seek to explain its causes and possible remedies.

One striking feature of American courts is the widespread practice of plea bargaining. Paradoxically, the practice rewards precisely those who appear guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American republic. Amid social conflict wrought by industrialization, immigration, and urbanization during the Age of Jackson, politicians acutely realized the potential for revolution in Europe. Local political institutions being spare and fragmentary, the courts stepped forward as agents of the state to promote social order necessary for healthy market functioning, personal security, and economic growth. Plea bargaining arose during the 1830s and 1840s as part of a process of political stabilization and an effort to legitimate institutions of self-rule—accomplishments that were vital to Whig efforts to reconsolidate the political power of Boston's social and economic elite. To this end, the tradition of episodic leniency from British common law was recrafted into a new cultural form—plea bargaining—that drew conflicts into courts while maintaining elite discretion over sentencing policy.

In 1974, Marc Galanter examined the strategic role of public interest lawyers in helping the “have nots” come out ahead in the legal system. Galanter argued that, to become agents for social change, lawyers must recognize that their role as advocates extends beyond the courtroom into the implementation process (Galanter 1974:151). This article analyzes the efforts of one group of public interest lawyers—those working in Legal Services agencies dedicated to law reform—to influence the implementation of redistributive programs for a particular group of “have nots”: homeless families or those on the brink of losing their housing. Based on my studies, I argue that by skillfully combining adversarial legal tactics with collaboration, poverty lawyers can transform judicial decisions into “symbolic resources” to leverage the implementation of redistributive remedies. When the reform lawyers have the authority to participate in the process of administrative rule making during the implementation process, they can reshape the norms and organizational infrastructures within state agencies.

One definition of the “proletarianization of the professional” is that the professional loses “control over policy and value objectives” in his or her work (Derber 1982b: 17). Proletarianization is normally explained as resulting from workplace labor process control (ibid., p. 31). A compatible, but quite different, explanation relates proletarianization to changes in the social practices and ideological orientations of professional careers. In this research note, I present this different explanation and suggest avenues for empirical research.

Marc Galanter's 1974 essay, “Why the ‘Haves’ Come Out Ahead,” portrayed large bureaucratic organizations as the archetypal repeat players in the legal system; Galanter's account, however, devoted relatively little attention to the distinctive legal capacities of organizations as organizations. This article extends Galanter's analysis by considering the ability of large bureaucratic organizations to “internalize” legal rules, structures, personnel, and activities. Specifically, we posit that the relationship between law and organizations has undergone four interrelated shifts in recent years: (1) the legalization of organizational governance, (2) the expansion of private dispute resolution, (3) the rise of in-house counsel, and (4) the reemergence of private policing. These processes interact with one another to transform the large bureaucratic organization from being merely a repeat player in the public legal system to being a full-fledged private legal system in its own right. Although “have not” groups may gain some short-run advantages from the introduction of citizenship norms into the workplace, the organizational annexation of law subtly skews the balance between democratic and bureaucratic tendencies in society as a whole, potentially adding to the power and control of dominant elites.

The American legal profession is facing challenges that are sending tremors through its institutional foundations. On the one hand, U.S. lawyers appear to be wielding ever increasing power as reflected in recent victories in litigation with cigarette manufacturers and in the now pending challenges to the firearms industry. At the same time, the profession finds its traditional prerogatives under increasing challenge with the push for multidisciplinary professional practices, direct encroachment by a variety of service providers (accountants, consultants, paralegals, etc.), and mounting political attacks on the profession for its apparent greed (e.g., huge fees from the tobacco litigation) and apparent arrogance (Glaberson 1999). Much as the businesses and governments who bear the bulk of health care expenses forced major restructuring of health care delivery, the large consumers of legal services (which are consuming an ever larger share of legal services; see Heinz, Nelson, & Laumann 1998) are seeking means of limiting and monitoring the costs of those services (ibid.; Kritzer 1994). Lawyers increasingly find themselves working not as independent professionals but as employees of bureaucratically organized law firms, corporations, and government. The dynamics of this change, combined with shifts in where legal effort is directed, have attracted the attention of scholars (Galanter & Palay 1991; Heinz et al. 1997; Heinz, Nelson, Laumann, & Michelson 1998; Seron 1996; Spangler 1986; Van Hoy 1997) in no small part because it has major implications for how we think about the legal profession, in its multiplicity of forms, as a profession.

Sociolegal theories of why “haves” might come out ahead in the legal system have emphasized legal mobilization and the use of legal representation. Small group research points to the influence of cultural capital on social expectations and interpersonal processes of social influence and deference as another potential explanation for status advantage. This study tests these explanations in the context of state income tax audits. The results indicate that taxpayers owning larger businesses are more likely to mobilize legally, but that legal mobilization does not affect audit outcomes. Instead, taxpayers with high occupational prestige and the owners of family businesses are more likely to come out ahead in tax audits, pointing to a cultural capital explanation of why the “haves” come out ahead. Prestige effects, however, are concentrated among taxpayers who represent themselves; when tax practitioners are involved in audits, status advantages disappear. Further analyses indicate that tax practitioners level the playing field by disrupting social influence and deference processes.

In 1974, Marc Galanter published a paper entitled “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” in which he analyzed the limits of a legal system, such as that of the United States, to achieve redistributive outcomes. He traced the limits to features of the U.S. legal system's “basic architecture.” The specific features to which he referred were a series of structural dualisms or institutional contradictions that permitted symbolic claims to universalism, public authority, and equality to coexist with particularism, private power, and inequality.