Archive for the ‘Sociology of Law’ Category
Baron on Leiter on Empirical Legal Studies
posted by Dave Hoffman
A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron. Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally. The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999). Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.” That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago. So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.
“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.
But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.
The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.
But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?
As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.
But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?
In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.
I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”
Thanks, Jane!
October 20, 2010 at 3:35 pm
Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law
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Rakesh Khurana’s “From Higher Aims to Hired Hands”
posted by Frank Pasquale
Rakesh Khurana’s book From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession is a profound contribution to sociology and institutional analysis. It is also a persuasive critique of some of the most disturbing trends in the American economy. While B-schools may seem of marginal relevance to the actual conduct of CEOs, Khurana observes in the book that they “occupy the commanding heights of higher education . . . and the kinds of knowledge and skill they purvey [are] now seemingly more essential to the tasks of university—and indeed societal—leadership than anything taught elsewhere on campus” (367). Khurana describes how leading B-Schools gained a world of power, prestige, and influence in the 20th Century, but lost their soul along the way.
The Biblical echo here is intentional: like Weber, Khurana traces the religious origins of the concepts of vocation and higher education. His focus on values—as well as his harsh indictments of business education past and present—could easily lead Khurana to jeremiads or charismatic prophecy, but he skillfully resists both of these temptations. He offers a sober vision for hope in the future of business education. Khurana’s work should inspire legal academics as well as business school professors (as it already has in a conference at the University of St. Thomas Law School (pdf) last year).
Khurana’s book has several points of interest for legal scholars. He focuses on the role of community and norms as sources of values distinct from markets and governmental hierarchies. As post-crisis interventions in the health care, finance, energy, and transport have demonstrated, the old debates over “market vs. government” solutions, or “private vs. public” spending, are of fading relevance for serious social theory in the US (however potent they may be on the campaign trail). Flaws in the “government” are all too often rooted in flaws in the “market,” which are in turn rooted in past flaws in policy, ad infinitum. Recent liberalization of campaign finance rules will only accelerate that dynamic of capture. Institutions that generate values are some of the few entities capable of short-circuiting this pernicious circularity.
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October 5, 2010 at 5:07 pm
Posted in: Articles and Books, Corporate Law, Corruption, Economic Analysis of Law, Philosophy of Social Science, Sociology of Law, Uncategorized
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Foreclosure Mills Under Fire; A New Way Forward?
posted by Frank Pasquale
The early days of the financial crisis revealed megabanks indulging in sloppy and self-serving recordkeeping on the macro-scale. Now we see the devastation and disorder that happens when that same profit-at-all-costs mentality is inflicted on individuals. As has recently been reported, foreclosure horror stories include “a man who was foreclosed on when he didn’t have a mortgage and paid cash for the home; a home that had two foreclosure suits against it because both servicers claimed ownership of the title; and a couple foreclosed on over a contested $75 late fee.”
Reform groups like A New Way Forward are gaining strength and members because large financial institutions are increasingly untrustworthy. They no longer appear to be unitary “actors” at all, but rather shadowy and unstable ensembles of desks and divisions whose main goal is slipping by whatever bonus-maximizing scheme won’t set off alarms among risk managers and regulators. As Satyajit Das memorably puts it in his book Traders, Guns, and Money, “no trader making $1 million + a year is going to take questions from an auditor making $50,000 a year” (144).
Given this grim landscape, I wanted to highlight two hopeful items. First, this Monday the Roosevelt Institute will host a conference on the future of financial reform, featuring some of the most credible and compelling voices in the field (including Jennifer Taub, Mike Konczal, Richard Carnell, Sen. Jeff Merkley, and Michael Greenberger). Read the rest of this post »
October 2, 2010 at 3:31 pm
Posted in: Economic Analysis of Law, Property Law, Sociology of Law, Uncategorized
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The Quickly Unraveling Clerkship Market
posted by Dave Hoffman
It's not a tournament if no one wins.
It’s not surprising, but it is a little sad, to report that the judicial clerkship hiring plan is on its last legs. The plan, as you may recall, organized hiring of clerks by prohibiting schools from sending materials before a certain date (the day after Labor day) and asking judges not to call to schedule and then hold interviews for a week and change (this year, September 13 and 16th, respectively). As anyone who studies these kinds of systems knows, a few defectors can put tremendous pressure on the rest, especially when no one is actually governed by law. This unfortunate unraveling market syndrome results from a lack of will by the federal judges to centralize and control hiring, and possibly from the untimely death of the hiring plan’s originator, Third Circuit Judge Eddie Becker. This year, three pieces of evidence suggest that the dam is about to burst:
1) Certain law schools submitted applications in the summer but haven’t -as far as I can tell- been punished with the blacklisting that the plan appears to contemplate. I’ve heard rumors (and I’d love to be corrected) that Vanderbilt and Michigan, among others, are on that early-submitting-school list. [Update: individuals from Vandy and Michigan have both denied that their respective schools violate the plan by organizing submissions through their central offices, and believe that any packets sent before last week might have been put together by individual students. They report that other institutions do submit school-sponsored packets over the summer. Readers: help us name names.]
2) Certain circuits -the 4th in particular- simply decided to opt out of the plan altogether, and have largely finished hiring.
3) Many, many federal judges have quietly opted out, by soliciting resumes directly, making calls when they please, or, more commonly, by hiring lawyers from practice rather than students. Because lawyer hiring doesn’t have to happen on the plan’s schedule, judges can effectively poach from an active secondary market. It’s also the case that the clerks they get from practice are probably on balance better than the ones they’d get from law school. And it permits judges to avoid the ridiculously time consuming task of sorting through thousands of resumes — a logistic problem that they aren’t staffed to handle. But in time when law school graduates are desperate for jobs, the trend is grim.
These trends combine to suggest that hiring plan can’t last. Schools are in a bind. If they comply with the plan, they risk harming their students, as the increasingly limited clerk positions go to applicants from non-conforming schools who submitted “early”. But if they deviate, the remaining judges who still feel strongly that the plan is a good policy may blacklist them. The result is that law schools probably can no longer be counted on to support the hiring plan, since it is not serving their collective interest. The result: 2010′s hiring season will be the last in which the hiring plan has any particular force in disciplining the clerkship market.
I’d love to hear what you think about this dire picture.
(Image Source: Computational Legal Studies)
September 9, 2010 at 8:54 pm
Posted in: Law School, Sociology of Law
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Future of the Internet Symposium: An Iron Cage for the iPhone Age
posted by Frank Pasquale
William Gibson’s essay on “Google’s Earth” deserves to be read by anyone interested in the “future of the internet.” Gibson states that “cyberspace has everted. . . . and [c]olonized the physical”, “[m]aking Google a central and evolving structural unit not only of the architecture of cyberspace, but of the world.” He’s reminded me of James Boyle’s observation that:
Sadly for academics, the best social theorists of the information age are still science fiction writers and, in particular cyberpunks—the originators of the phrase ‘cyberspace’ and the premier fantasists of the Net. If one wants to understand the information age, this is a good place to start.
Some legal academics have taken this idea to heart; for example, Richard Posner apparently began writing Catastrophe in response to Margaret Atwood’s Oryx and Crake. With that in mind, I wanted to point to some speculative fiction that I think ought to inform our sense of “the future of the internet.”
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September 8, 2010 at 3:57 pm
Posted in: Philosophy of Social Science, Privacy, Privacy (Electronic Surveillance), Sociology of Law, Symposium (Future of Internet), Technology
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Self-Sufficiency and Decoupling
posted by Frank Pasquale
I was recently reviewing some of David Singh Grewal’s work, including this excellent essay on Keynes and globalization. Grewal’s book on Network Power was very insightful, and his examination of Keynes promises to advance economic debates long stalled in stale orthodoxies. Grewal describes Keynes’s intellectual evolution from ardent free trader to skeptic, giving this explanation for the shift:
[W]hile Keynes cited many reasons for limiting economic globalization, including for the sake of what we now call the ‘policy space’ available to governments to intervene in the economy, it was international peace that was his foremost concern. Because globalization allows economic relations to form above and outside the state, there is no obvious route to a solution if things go awry (as might be expected) in complex chains of production and investment that cross national borders.
Grewal argues that current global imbalances are underwritten by the “novel combination of globalized finance and a world reserve currency that can be inflated at will.” His diagnosis reminds me of Manuel Castells’s prophetic dissection of dangerous uses of American financial power in the book The Economic Crisis and American Society—a work that, sadly, is as relevant today as it was when it was published in 1980.
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August 19, 2010 at 7:16 pm
Posted in: Culture, Economic Analysis of Law, International & Comparative Law, Law and Inequality, Sociology of Law, Trade, Uncategorized
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Indiscriminate Searches
posted by Gerard Magliocca
Not long ago I was at the store buying a bottle of wine when the checkout person asked me for my ID. I smiled at the thought that someone might think I still looked like a teenager, until I learned that the request was because of a new state statute that requires retail vendors to verify the age of all purchasers of alcohol–no exceptions. So even Grandma must now produce her driver’s license if she wants to buy booze in Indiana.
This strikes me as pretty ridiculous. Granted, some vendors look the other way when people under 21 buy alcohol, but is the solution really to make them card senior citizens? Let’s hope no other states go in this direction.
August 11, 2010 at 1:23 pm
Posted in: Sociology of Law
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The Messy Political Economy of Finance and Energy
posted by Frank Pasquale
(This is Part 3 of a review of Ian Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (Portfolio, 2010); Part 1 appears here and Part 2 here.)
If pervasive governmental intervention is inevitable in any developed economy, the question then becomes: what intervention is worthwhile? For Bremmer, the answer appears to be either a) not much or b) intervention that is not designed merely to enhance the power of the governing regime. Unfortunately, one of his central arguments for the value of the free market—the performance of multinational oil and gas companies—founders on the messy politics of energy. The second category of “pro-commerce” intervention appears less and less coherent as we look at the full breadth of programs state capitalist regimes engage in. State capitalists in China may well be promoting the sustainable commerce of the future by forcing certain sectors to act “politically” today.
Crude Distinctions in the Petroleum Industry
Bremmer notes that “the 14 largest state-owned energy companies control twenty times as much oil and gas as the eight largest multinationals” (56). He accuses state-owned energy companies of being corrupt, inefficient, and dangerous, and makes that case in some detail. He also says many of them are amoral, willing to work with the most repressive regimes imaginable. By contrast, he lavishly praises multinationals like Shell, BP, and ExxonMobil:
[E]fficiency gaps between privately owned companies and their state-owned rivals wider in the energy sector than in any other area of an economy. Multinationals offer higher wages, attracting better workers. They’re more likely than state-owned firms to benefit from economies of scale. They’re more innovative. Their managers and engineers are more experienced, and they use better equipment. These advantages will continue to matter in places like the Gulf of Mexico . . . where the technical demands of bringing oil to the surface are extraordinarily high. (62) (emphasis added)
If the BP hemorrhage continues indefinitely, that hole in the world might shake Bremmer’s confidence. Admittedly, the disaster happened after the book was released, but the more we dig into it, the more we find permanently captured regulators at Interior giving these companies whatever they want. Stories of the environmental devastation of Nigeria and Ecuador by Shell and Chevron have been familiar for years.
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July 6, 2010 at 3:55 pm
Posted in: Book Reviews, Corruption, Philosophy of Social Science, Politics, Sociology of Law, Uncategorized
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Some Realism About Interventionism
posted by Frank Pasquale
(This is Part 2 of a review of Ian Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (Portfolio, 2010); Part 1 appears here.)
Throughout his book, Bremmer contrasts “state capitalist” regimes (where the government is the lead economic actor) with “free market” nations which preserve more room for private initiative. While virtually every country has a few state-owned enterprises (SOE’s), in state capitalist regimes like China SOE’s predominate in “diverse sectors” and are used to enhance the political power of government (65). Such regimes also intervene in the economy pervasively. For example, Russia in 2008 “identified forty-two ‘strategic’ economic sectors in which restrictions applied for foreign investment” (109). In a chapter entitled “State Capitalism Around the World,” Bremmer piles up a litany of suspect interventions in places ranging from Nigeria to Mexico to Saudi Arabia.
Bremmer paints a stark contrast between the economies of liberal democracies and the state capitalist other. But at least since legal realist Robert Hale published his Coercion and Distribution in a Supposedly Non-Coercive State in 1923, the question of what constitutes state “intervention” in the market has been contestable. For example: at what point does licensing of doctors move from being a natural aspect of any competent health system to being termed a suspect “intervention”? If there is to be free trade in services, don’t we at least need some information about what constitutes genuine medical care? “Perfect information” is a cornerstone of idealized markets—isn’t some baseline of information necessary to any actual market?
Bremmer does not talk much about health care in his book, but it appears to be one important sector where the relative role of the government in state capitalist and “free market” regimes is flipped. On a cursory reading of Blumenthal and Hsiao‘s 2005 article in the NEJM, the US would appear to be more interventionist than China:
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July 5, 2010 at 8:17 pm
Posted in: Administrative Law, Corruption, Current Events, Economic Analysis of Law, Philosophy of Social Science, Politics, Sociology of Law
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Zero Cheers for State Capitalism?
posted by Frank Pasquale
(This is Part 1 of a review of Ian Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (Portfolio, 2010).)
Ian Bremmer’s The End of the Free Market is already one of the most celebrated nonfiction books of 2010. Reviewed worldwide, the book has been praised in many quarters. Bremmer’s deep knowledge of world political economy is evident throughout this work. Yet the book’s case for “free market” as opposed to “state” capitalism relies on generalizations that are too gross to capture the real fault lines in globalization. If we are lucky, Bremmer’s work will encourage American policymakers to compare their own interventions in the economy with those of “state capitalist” regimes like China, and to copy best practices. If we are unlucky, its ideas could lead to economic stagnation in “free market” havens and new tensions between the U.S. and China.
For Bremmer, “state capitalism” denotes a level of government control of the market that is less dirigiste than a “command economy,” but more heavy-handed than the social market institutions of Europe. Countries become more state capitalist when their “government[s] play the role of lead economic actor,” moving to the left along a spectrum ranging from communism to libertarianism. They move “right” when the government lets businesses make decisions for “commercial reasons” rather than trying to encourage them to meet political goals.
On this view, moving rightward toward non-intervention is usually advisable, provided some baseline of regulation and sound business culture prevails. Bremmer admits this is a “profoundly simplistic model” (44), and perhaps in penance he explicitly condemns “utopian libertarianism” when he introduces it, declaring that “any argument that the state should remove itself entirely from the marketplace is absurd” (153). He laments the fact that theories of “shareholder value” have led “CEOs and company management [in free market capitalist countries to] become obsessed with maximizing quarterly profits at the expense of investment in a sound long-term growth strategy” (152). To his credit, he explains the recent financial crises in the US as the product of a few decades of deregulatory dogma, and not merely aberrational.
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July 4, 2010 at 5:25 pm
Posted in: Book Reviews, Current Events, Economic Analysis of Law, Law and Inequality, Philosophy of Social Science, Politics, Sociology of Law
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Law’s Titles
posted by Dave Hoffman
It’s been a busy summer so far, with a presentation at LSA under my belt, and lots of research still to come. But I’ve been distracted of late with a pesky pedantic thought: which jobs that lawyers can aspire to create titles which survive the position? That is, you’ve retired or left your official position. Do the relevant norms allow you keep using the title? I looked an unrepresentative sample of mainstream media articles.
- Justices: Now and forever. State courts justices get demoted to “judge“, but it’s better than nothing.
- The Solicitor General: “General Kagan” now, “Justice Kagan” in a few weeks, Elena to friends. But more generally, it looks like the former S.G.s (Fried, Olson, Clement, etc.) lose the title when they lose the job.
- Attorney General: It’s an awkward title, so at most the holders are called “former A.G.”
- Professor: Er, there’s such a thing as losing your job as a professor? Regardless, you seem to get to keep the title, if not the cash.
- SEC Commissioner: It depends. If you move into private practice, you seem to lose the title. If you move into academia, you gain a new one.
It’s a weird phenomenon. To me, the titling of former judges looks like the exception, not the rule. What am I missing?
June 2, 2010 at 7:06 pm
Posted in: Sociology of Law, Weird
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VICTIMS’ UNDERSTANDINGS AND MOTIVATIONS IN PROCESSING HUMAN RIGHTS VIOLATIONS CASES IN THE GLOBAL SOUTH
posted by Tamara Relis
The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas and principles continue to have difficulty in establishing their relevance in the daily lives of those who are geographically and culturally distant from international institutions (Stacy, 2009). In my forthcoming piece in Human Rights Quarterly, I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South. What are victims’ conceptions and expectations of human rights and their agendas and experiences in formal and informal justice systems processing their cases? This knowledge is critical to enable greater understanding of victims’ needs, epistemologies and micro-realities in order to innovatively engage the controversies in international human rights theory and practice and to effect realizable change for the subjects of human rights in the Global South.
I provide some such data in my forthcoming book based on my empirical research in India, detailed in my earlier post. This includes voices of female victims of violence discussing their comprehensions, objectives, and practices in processing their cases (74 interviews with victims, and 24 with their family members). I link victims’ discourse to norm diffusion theory in international relations (Risse et al. 1999) and to vernacularization theory in law and anthropology (Merry, 2006), which engage the issue of permeation of human rights standards to grassroots levels.
In terms of female victims of violence in India where CEDAW was ratified in 1993, I show that notwithstanding State enactments of laws in line with international human rights obligations, and the dissemination of human rights concepts by transnational activists and domestic NGOs who work to make them meaningful within particular societies, the subjectivities of victims of violence in two major cities (Delhi, Bangalore) as illustrated in their discourse on their motivations and aims in approaching formal courts and informal justice mechanisms suggest little if any human rights emancipation. Those with little education had either never heard of human rights or lacked an understanding of their meaning. More educated victims who had a general sense of human rights concepts knew little of specifics. Moreover, both groups generally felt that fundamental human rights ideas, though something positive, were primarily of use on an inspirational level.
June 1, 2010 at 11:27 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Sociology of Law
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Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
May 24, 2010 at 8:49 pm
Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized
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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
May 17, 2010 at 8:54 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law
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Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)
posted by Tamara Relis
I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.
CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:
Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.
PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY
Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.
The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’
‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months
‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months
‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years Read the rest of this post »
May 11, 2010 at 12:00 am
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Health Law, Insurance Law, Interviews, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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What are we missing when we think about case processing in litigation and mediation?
posted by Tamara Relis
Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.
The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.
Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).
May 3, 2010 at 4:29 pm
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Feminism and Gender, Health Law, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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The Perils of Polling
posted by Daniel Solove
It has long been known that the way poll questions are asked has a dramatic effect on the results, but I found these results to be quite interesting and surprising. According to a CBS News / New York Times Poll:
A new CBS News/ New York Times poll finds that the wording of the question is key when it comes to determining whether Americans support allowing gays to serve in the military.
In the poll, 59 percent say they now support allowing “homosexuals” to serve in the U.S. military, including 34 percent who say they strongly favor that. Ten percent say they somewhat oppose it and 19 percent say they strongly oppose it.
But the numbers differ when the question is changed to whether Americans support “gay men and lesbians” serving in the military. When the question is asked that way, 70 percent of Americans say they support gay men and lesbians serving in the military, including 19 percent who say they somewhat favor it. Seven percent somewhat oppose it, and 12 percent strongly oppose it.
February 12, 2010 at 8:22 am
Posted in: Empirical Analysis of Law, Politics, Sociology of Law
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Book Review: Divergent Opinions: Why Community Matters — A Review of Sunstein’s Going to Extremes
posted by Marc Roark
Going to Extremes: How Like Minds Unite and Divide, by Cass Sunstein. Oxford University Press: New York 2009. Pp. 171. $21.95
Cass Sunstein argues in his new book Going to Extremes: How Like Minds Unite and Divide that extremism is a phenomenon that is enhanced when people of like minds get together to talk. When we think of people that lie at the extremes of society, our minds are often drawn to reclusive characters. People like John the Baptist living in the wilderness “wearing clothes made of camel hair, eating locusts and wild honey;” (Matt. 3:3-4) or people like Raskolnikov from Fydor Doystoyveski’s Crime and Punishment – a reclusive character who develops a radical and warped sense of morality in response to his perception of society’s values. In reality, people that live on the extremes are rarely alone. They are surrounded by a network of like thinkers who confirm the attitudes, beliefs and interpretations of sensory data that those persons embrace as normal. Extremes are about information. That is, where you get your information from; whether you believe that information to be reliable, and how willing you are to accept information outside of your preferred source.
Going to Extremes is about how, when and why extremes develop in communities. The theme of the book is that “[w]hen people find themselves in groups of like-minded types they are especially likely to move to extremes” (p. 2). Sunstein’s work fits into the genre of human behavioral psychology proposed by James Sidanius and others that views extremists’ cognitive complexity as more complex than moderates. See James Sidanius, Functioning Sociopolitical Ideology Revisted, 6 POLITICAL PSYCHOLOGY 637, 639 (1985). This is in contrast to extremism theory, which largely assumes that political extremists display less-sophisticated cognitive behavior than moderates. About the form of extremism we call terrorism, Sunstein writes at one point,
it is tempting to think that terrorism is a product of extreme poverty, lack of education, or a kind of mental illness. It turns out that all of these thoughts are quite wrong. Most of the time, [terrorists] come from middle-income families. Nor have terrorists lacked education. There is no evidence that they suffer from mental illness…. Alan Krueger argues that terrorism is a form of political protest, and those who lack civil rights and civil liberties not having other means of engaging in protest resort to terrorism. To Krueger’s point, we might add that when civil liberties do not exist citizens have only one prominent source of information – the state – and that source cannot be trusted. (p. 115)
Terrorism then becomes a reaction against information that the extreme positions assume can’t be right. Thus, in Sunstein’s work, the why and how of extremisms (like terrorism) can be associated with how individuals interact in communities – the trust they place in the information received, the confidence they derive from like-minded members, and the authority or submission they respond to as a member of the community.
February 4, 2010 at 12:09 am
Posted in: Articles and Books, Behavioral Law and Economics, Book Reviews, Law and Humanities, Law and Psychology, Philosophy of Social Science, Politics, Sociology of Law
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“I’ve Created a Very Large Microwave . . . And New Year’s Eve I Intend to Enter That Very Large Chamber . . .”
posted by Dave Hoffman
Many professors have turned of late to survey research, which promise to answer long-standing questions about individuals’ relationships with legal institutions and their understanding of the law. Occasionally, if you run these kinds of surveys, you’ll see respondents who aren’t quite taking the task as seriously as you might want them to. Listen to this pretty awesome recording, and try to figure out what the survey was designed to accomplish. Regardless, it’s probably a good general rule, in designing such surveys, not to call longmont potion castle.
(H/T: Noted surveyor D.B.)
January 19, 2010 at 4:50 pm
Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Sociology of Law
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A Proposed Study To Measure Law Clerk Influence
posted by Dave Hoffman
Judge food.
Citation studies as a proxy for judicial quality are all the rage. I concur with Larry that the effort spent often seems disproportionate to the result. Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.
Exogenous shocks open windows – of limited scope – which may help us penetrate this fog. There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance. Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it). That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.
So what’s the shock? I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality. Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls. As an organ of the government, the judiciary simply eats better brains when the economy stinks.
Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following. The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions. Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995. It’s 2018 or bust. Mitu et al., I call dibs!
October 7, 2009 at 8:34 am
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Sociology of Law
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