This paper tests the hypothesis that financially and organizationally stronger parties tend to prevail in litigation against weaker parties, either because the normative structure of the American legal system has favored “the haves,” or because judges' attitudes do, or because stronger parties have strategic and representational advantages in litigation. The study is based on a sample of 5,904 cases from sixteen state supreme courts, 1870–1970. According to our data, stronger parties, especially larger governmental units, did tend to achieve an advantage over weaker parties, but the advantage generally was rather small. The stronger parties' edge recurs in subsamples for different types of cases, time periods, and types of legal representation. It is attributed in part to the greater litigational capabilities of stronger parties.

Based on open-ended interviews with the parties and lawyers in twenty-five informally settled divorce cases, this study finds that the informal process is often contentious, adversarial, and beyond the perceived control of one or both parties. Although settlement in some cases reflects flexibility, party participation, and true agreement, in most cases it reflects unequal financial resources, procedural support, or emotional stamina. Parties report settling issues such as child support according to nonlegal, situational factors—particularly their relative impatience to finalize the divorce—and mutual satisfaction with settlement terms is low. Our findings raise questions about the assumed value of informal settlement. However, we recognize that informal processing of divorce is structurally and institutionally inevitable (with or without evidence of its desirability), and we suggest that reform efforts must ultimately recognize both the inevitability and the limits of informal process.

The history of the Australian Press Council presents an opportunity to examine the thesis that advanced capitalist states are systematically resorting to dispersed forms of social control. While the council appears to conform to the specifications of a “dispersed agency,” it appears largely to be unintelligible in such terms. While representing some aspects of a social control institution, it is better comprehended in terms of the contradictory characteristics of the social field in which it is located, rather than in terms of a broad strategy of state expansion. The dispersal model should be recast to take account of such variations and to recognize the extent to which social fields may generate their own forms of institutionalized control, which bear a highly problematic relation to state regulation.

The Japanese Civil Liberties Bureau (CLB) was created to promote individual rights but evolved into an organization that mediates disputes between private parties. Unlike comparable institutions in other societies, the CLB is able to mediate large numbers of cases effectively. Although the conditions under which the agency was created and continues to flourish may be unique to Japan, the ability of the CLB to function in a complex, urbanized society should not be attributed to Japanese tradition and culture alone. Instead, institutions like the CLB play an important role in the shaping of that culture, helping the Japanese to settle disputes without litigation and enabling them to perceive their society as one with little need for litigation. The experience of the CLB should make us rethink some of our commonly held assumptions about how the Japanese deal with disputes.

Our theory states that the police function, in its modern form, is linked to economic specialization and differential access to resources that occur in the transition from a kinship- to a class-dominated society. This theory shows the incremental steps by which this transition may come about, both historically and cross-culturally. In addition, we examine the implications of these steps for modern police-community relations.

Our theory is constructed from both anthropological and historical materials. It consists of four interdependent propositions: (1) The origin of a specialized police function depends upon the division of society into dominant and subordinate classes with antagonistic interests; (2) specialized police agencies are generally characteristic only of societies politically organized as states; (3) in a period of transition, the crucial factor in delineating the modern specialized police function is an ongoing attempt at conversion of the social control (policing) mechanism from an integral part of the community structure to an agent of an emerging dominant class; and (4) the police institution is created by the emerging dominant class as an instrument for the preservation of its control over restricted access to basic resources, over the political apparatus governing this access, and over the labor force necessary to provide the surplus upon which the dominant class lives.

We argue that the police institution has a double and contradictory origin and function, for at the same time and in the same society it may be both the agent of the people it polices and of the dominant class controlling these same people. An analysis linking the origin of the modern police function to social change in classless societies has important implications for an understanding of contemporary problems in police-community relations. It allows the dynamics of the social control function of police in small, homogeneous social units to be integrated with a consideration of its role in a complex society. Such an analysis also illuminates how an understanding of this specialized role may be obscured by the more general social control function of police displayed in simple social units, resulting in differential and conflicting expectations about the role and functions of police in the modern world.

Research concerning law and social change has almost always treated time as a universal constant and a baseline against which variations in behavior can be measured. Yet a significant literature exists demonstrating that researchers can also regard time as a socially constructed phenomenon requiring analytic interpretation in its own right. This article explores two aspects of the human experience of time that were especially important for the residents of a rural American community: the sense of time's iterative character and its linear or irreversible quality. These two ways of experiencing and conceptualizing time played a significant part in efforts by residents of Sander County, Illinois, to define their community and interpret the social, cultural, and economic transformations it was undergoing. They were also important in the residents' efforts to frame and define conflict within the community and to determine when law should or should not be invoked. The article examines some ways in which the analysis of varying conceptions of time within a community can enhance understanding of expectations, perceptions, and values concerning law in a changing society.

This is a comparative study of legal mobilization that shows how various patterns of legal representation and layperson participation affect the scope and pace of mobilization. These patterns do not emerge from whole cloth during a particular legal mobilization but rather develop according to preexisting trends of representation and participation.

The author first discusses this analytic framework and then presents four case studies. Ultimately he presents a comparative analysis of these cases to generalize about the relationship between the patterns and the scope and pace of mobilization. He argues that patterns of legal representation and layperson participation are powerful determinants of the style and outcome of legal mobilization.

Many explanations have been proposed for gender differences in criminal court outcomes, but none has been grounded in a systematic study of the reasoning processes used by court officials in sanctioning male and female defendants. Interviews with thirty-five court officials (prosecutors, defense attorneys, probation officers, and judges) are presented here to assess extant theory and to offer a reconceptualization of why gender differences may emerge in the course of “doing justice.” The interviews reveal that the sanctioning process is structured by familial paternalism, that is, a concern to protect family life, men's and women's labor for families, and those dependent on defendants. Familial paternalism more accurately explains family- and gender-based disparities in sentencing than existing social control arguments, and it is distinguished from female paternalism, which is based on the view that women, as the “weaker sex,” are subject to greater court protection than men before the criminal court.

A number of contemporary scholars have argued that Max Weber sought to establish a positive relationship between the highest form of rationality in legal thought—logically formal rationality, and the most advanced type of economic rationality, that embodied in capitalism. Since capitalism actually developed first in England, where no such logically formal legal system existed, these scholars conclude that Weber's sociology of law suffers from various contradictions that are frequently referred to as the “England problem.” This paper rejects the idea of the “England problem” and argues that Weber actually identified formal justice and guaranteed rights, rather than logically formal legal thought, as the features of modern law that directly facilitated the rise of capitalism. It also challenges Habermas's claim that Weber ignored the normative dimension of modern law and argues that he considered the “rightness” of law to be an important factor in the rise of capitalism but found that with the disenchantment of law this normative dimension has weakened.

McEwen and Maiman (1986) have disagreed with my claim that the case characteristic of admitted liability explains more variability in dispute outcome and compliance than whether the case was resolved through a mediation or adjudication forum. Those authors reanalyzed some of my data from an Ontario small claims court and concluded that forum type is the stronger variable. I take issue with them on a number of conceptual and methodological points. In my own reanalysis of the Ontario data I am able to demonstrate statistically that admitted liability is the stronger predictor of outcomes. I also discuss why this should be so and raise some questions about compliance. Whether we can generalize to McEwen and Maiman's data from Maine courts is a matter of speculation, but I am inclined to infer that we can. Our debate raises important issues in the assessment of dispute resolution.

Taxpaying is a primary nexus between individual and state, and tax laws are exemplar of purposive administrative law. Our framework for research on taxpaying emphasizes that compliance is as problematic as noncompliance, that individuals have different opportunities for both compliance and noncompliance, and that taxpaying does not necessarily involve deliberate decisions. Both the process of decision making and the content of decisions must be studied. Four clusters of factors affecting the content of compliance decisions are material consequences, normative expectations, sociolegal attitudes and beliefs, and expressive factors. How individuals subjectively “frame” the factors depends upon their social situations. The framework has several implications for research on tax noncompliance.

In this paper the author analyzes the exercise of prosecutorial discretion to “go forward” with charges. The author examines the relationship between sources of uncertainty in decision making and the initial decision to begin the criminalization process. Organizational theory bearing on uncertainty avoidance provides the perspective guiding the analysis. The author uses a maximum likelihood procedure to estimate the net effects on the probability of prosecution of a set of variables measuring uncertainty emerging within the backdrop of prosecutorial concern for obtaining a conviction at a jury trial.

This paper examines the place of critical inquiry within law and society studies. It suggests that such inquiry requires a periodic reexamination of both methodological and theoretical assumptions. In terms of method, critical inquiry would emphasize the particular and intensive as opposed to the general and extensive. In terms of theory, it calls attention to the limits of state legality and invites attention to ordinary social transactions in which the law appears invisible but is nonetheless powerful. The authors argue that it is possible to be both critical and empirical.

We report here the results of two empirical studies of laws mandating a jail term of forty-eight consecutive hours for repeat-offender drunk drivers. In both cases, noncompliance by judges, abetted by other criminal justice system actors, was extensive, and substantial proportions of offenders were not imprisoned as mandated. We explain these findings as evidence of both a disjunction between formal and operative definitions of the behavior in question—drunk driving—and the great difficulty of controlling the discretion of actors in the criminal justice system.