This paper considers the political role of the organized bar from three perspectives: the historical question of the stance taken by bar associations during the major civil rights debates of the post-World War II period; the sociological question of the extent to which legal associations can act collectively on highly contentious political issues; and the legal question concerning the implications of legal formalism for the politics of the bar. Contrary to the belief that legalism is an inherently conservative means of justifying professional inaction on fundamental issues, the paper argues that in fact legalism may well be the most important basis of intra-professional consensus on those issues as well as the most powerful means by which the profession can influence state and national governments. Legalism can be understood as a common professional idiom which allows mobilization on divisive issues. It can be used in support of both liberal and conservative causes. In this sense, within certain limits, legalism is neutral–an expedient which enables the profession to act politically in circumstances which otherwise would effectively immobilize its collegial associations.

This article explores the advantages and disadvantages of referring discovery matters in complex cases to special masters. In the first section Brazil explains how the results of his earlier research into the discovery system exposed problems that the appointment of masters might help solve. He then describes the kinds of pretrial tasks and roles federal courts have assigned to special masters and the ways that using a master can expedite and rationalize the case development process. In the second half of the article, the author assesses the major objections to delegating judicial responsibilities to masters and the problems that frequent appointments might cause. Along the way, Brazil offers practical suggestions to judges about how to avoid potential difficulties and how to maximize the effectiveness of this increasingly popular procedure.

The work of state intermediate appellate courts is often described as “correcting legal errors” and “supervising” trial courts. But what do these labels mean in practice? This article explores the intermediate appellate process through a study of criminal appeals in a California Court of Appeal. Part I describes the characteristics and dispositions of criminal appeals. Contrary to popular impression, a conviction was reversed in only about 5 percent of these appeals. To explain the low reversal rate, part II draws upon interviews with justices of the Court of Appeal to examine the institutional norms and perspectives guiding the court's decisions. The basic decision norms described by the justices are norms of affirmance: for example, the harmless error rule and the substantial evidence rule incline the court to affirm despite certain legal errors or factual questions. Moreover, the particularistic approach the court typically takes in its decision making apparently sensitizes it to the substantive characteristics prevailing in criminal appeals: the crimes are serious and there is little doubt about factual guilt. The low reversal rate and the analysis of the court's norms suggest that intermediate appellate review of criminal convictions is narrower and more constrained than the “error correction” and “supervision” labels imply. Part III explores the implications of the case study for appellate policy.

The notion that there are constitutional limitations on the power of the states to export their tax burdens to residents of other states has been the predicate of recent court challenges to state taxing schemes. The concept of state tax exportation and its implications for constitutional analysis have not, however, been systematically explored by the courts. The economics of state tax exportation suggest that a judicial inquiry into the extent of state tax exportation would be a formidable if not an insuperable task. And the Supreme Court, when recently confronted with an opportunity to constitutionalize a principle of excessive state tax exportation, flatly declined to do so. It is nevertheless possible that the concept of state tax exportation may have a role to play in constitutional analysis as a vague admonition to the states not to transgress some yet to be defined norms of fiscal balance in our federal system.

This article examines the problems inherent in any endeavor to rank law schools on a qualitative basis. Analysis of possible ranking criteria forces the conclusion that attempting to assign specific rankings based on objective criteria is a futile task. However, objective tests are suggested which indicate, on application to available data, that about 40 of the approximately 165 ABA-AALS-accredited law schools are of superior quality and differ among themselves only as to an image of prestige.

The American legal system, structured in an entrepreneurial mode, relies upon the individual actor to personally evaluate the burdens and benefits of invoking the law on his or her own behalf. Without discounting the contribution to our understanding of legal mobilization which has been made by the access-to-justice movement, the author argues that focusing on the poor and the distribution of legal services has limited our understanding of the legal system.

The article presents an alternative analytic framework for examination of citizen use of the law. The model of legal mobilization presented focuses on demands rather than needs, on citizens rather than lawyers or judges, on decision making rather than access, and on invoking the law rather than compliance with it. Drawing on the literature and available empirical evidence, the author attempts to analytically clarify the complex process of legal mobilization by organizing relevant variables into a decision-making model that focuses on the individual actor and the factors weighed in deciding whether and how to proceed in mobilizing the law.

Under a California procedure, parties to litigation may agree to have their cases referred to retired judges for private trial. While the procedure affords substantial benefits in some kinds of cases, it does involve problems that will probably limit its more general use.

This article reports on the experience of Special Masters appointed to regulate pretrial phases of a large civil antitrust suit. It describes techniques for expediting discovery, determining claims of privilege in production of documents, establishing stipulations of undisputed facts, and controlling and resolving disputes arising in discovery. It suggests a “managerial” approach to pretrial that is flexible and experimental and that may be useful in controlling the pretrial phase of other “big” cases.

In litigation, judges often disqualify attorneys who violate American Bar Association (ABA) disciplinary standards. Many practitioners, judges, and scholars are growing increasingly hostile to these disqualifications. In this article the author criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to ABA standards for withdrawal or ineligibility to accept a case. He argues that the remedy of disqualification should only rarely be used, even when it is clear that an ABA disciplinary standard has been violated. He criticizes the view that the standard for court-ordered disqualification should be roughly equivalent to ABA standards for withdrawal or ineligibility to accept a case. And he canvasses the Second Circuit's development of a new standard of disqualification—the trial taint test—as well as some recent developments that undercut that standard.

Beginning with a survey of the application of computers to the law—how they are used now and how expected to be used in the future—this article presents a model of computerized document drafting systems and describes the capabilities such systems must have. A description of a template document that will specify the content, the form, and the rules for completing a class of documents is followed by a discussion identifying the facilities a document designer needs to specify such a template document, which in effect defines the language needed for the template design. A simple, easily implemented template drafting language (TDL) and a prototype software system (ADD) that can assemble documents drafted in this language have been designed and used to create security agreements drafted in accordance with Article 9 of the Uniform Commercial Code.

The substitution of no-fault compensation for recoveries at tort law in cases of work-related injuries would, according to turn-of-the-century reformers, minimize resort to adjudication. Charges of unanticipated controversy and excessive litigation under state compensation statutes, however, have been raised periodically for several decades.

This article presents the findings of current research into the prevalence of disputes, attorney involvement, and court suits under workers' compensation legislation in Illinois, the locale of specific criticism. The author offers an explanation of the obstacles to discovering the incidence of work-related injuries, along with a description of the handling of both undisputed and disputed claims. By following the itinerary of a sample of 6, 652 compensation claims filed during 1978 through several stages of administrative and judicial processing, she then examines the persistence of these primarily disputed claims from initiation to resolution. Her major finding is that under workers' compensation legislation in Illinois, litigation, whether defined as attorney involvement or court action, may not be as excessive as charged. The research uncovers the need for more precise standards for defining a surfeit of controversy and offers suggestions for meeting this need.

The majority of prisons today have an internal grievance mechanism that gives inmates an opportunity to air complaints and seek solutions to individual and institution-wide problems. This study reports on the way the mechanism functions at two Illinois state prisons—one minimum security and one maximum security. The main findings are: (1) that the mechanism is heavily and repetitively used by only a portion of the inmate population, (2) that the grievances filed range widely in type as well as in merit, although it is clear that there is much frivolous activity, (3) that inmates win only a small percentage of their cases, either at the first-instance level or on appeal, and (4) that among both line prison staff (at least at one of the prisons) and inmates there is considerable dissatisfaction with the process, although a minority of prisoners and the higher echelon prison administrators can be counted on for more favorable assessments. The article goes on to compare these findings with the generally articulated objectives of the grievance process and concludes with a series of suggestions that have been made for improving its workings.

Most studies of the legal profession, done in metropolitan settings, have indicated that the profession is characterized by deep divisions associated with varying practice patterns, professional status, and orientation. But the sources of division within the bar include more than the specialization and stratification that are typical of the bar in metropolitan settings. Community context also appears to be a source of division. It determines not only the character of a lawyer's cases and clients but also the manner in which practice is conducted. This comparison of practice patterns in Missouri of rural lawyers with those in a middle-sized city (Springfield) revealed that while the small town context protects the bar from the centrifugal forces of stratification found in larger settings, it also has elements that challenge the professional independence of the practitioner. The small town or rural practitioner is very much a part of the local life, and thus local opinion and values have a salience for practice patterns not typical of larger settings. In addition, these rural lawyers are less likely to be engaged exclusively in law practice.

Overall, the data suggest that the legal profession is divided not only by specialization and its attendant internal stratification but also by the size and character of the local context. In contrast to the view that the profession is a homogeneous professional subculture, we found that the bar may better be thought of as a rather loose-knit group with tenuous collegial ties whose professionalism is under constant challenge from the community in which law practice occurs.

In 1977 the National Labor Relations Board announced that it would no longer probe the truth or falsity of statements made in the course of representation campaigns. This decision, Shopping Kart Ford Market, overruled longstanding Board policy and was itself overruled the following year. Now, in August of 1982, the Board has again made a commitment to nonprobing and has reinstated the Shopping Kart standard (Midland National Life Insurance Co.,___ N.L.R.B.____, 110 L.R.R.M. 1489 (1982)). Such seesawing of Board positions suggests the difficulty of attempting to protect freedom of speech while simultaneously supporting other national labor policy goals, including employee freedom of choice and the integrity of representation elections. Critical to determining the appropriate standard for campaign speech is an understanding of how employees respond to misrepresentations or coercion in an employer's campaign rhetoric. This paper investigates the relationship between employer campaigning and employee response. Both employer and labor organization will have incentives to prevent coercive or misrepresentative speech at certain levels of violation severity. But in an intermediate range of speech in which that is not the case, the Board has a unique role to play in protecting the rights of individual employees and the public interest in the integrity of elections.

A criminal jury of fewer than 6 members and a jury in which 5 out of 6 can find a verdict were held unconstitutional by the U.S. Supreme Court for failing to meet the requirements of due process as mandated by the Fourteenth Amendment. In four states—Michigan is one of them—the 5 out of 6 jury is the standard civil jury. Two questions are raised: first, whether such a jury violates the Michigan state constitution; second, whether such a 5 out of 6 civil jury violates the federal Constitutiton even though the civil jury is not protected by the Fourteenth Amendment.

The part-time employment of full-time law students is a significant aspect of contemporary legal education. Successful socialization and training in law are presumed to require the undivided time, effort, and commitment of students. Part-time employment, therefore, is commonly believed to siphon those scarce personal resources away from the central task of legal education. This multi-school study of a sample of 1,370 law students attempted to determine the significant ways in which employed students were differentiated from nonemployed classmates in finances, attitudes, and uses of time, and whether type of law school and student's year in school had effects on patterns of student employment.

The incidence of part-time employment, while strongly related to personal financial resources, was found to be equally influenced by the type of school attended and year in school. While those settings varied substantially in the degree of permissiveness toward student part-time employment, students employed part time could not be distinguished statistically from their nonemployed classmates in terms of levels of involvement in law school or their levels of morale. Both temporal and attitudinal disengagement from law school were found to be commonplace among upper-class students in all school settings, but part-time employment did not appear to contribute to it uniquely.

Recent changes in the tax laws governing retirement plans may offer significant tax advantages to lawyers and other self-employed persons. The author discusses the provisions of the Economic Recovery Tax Act of 1981 as they affect self-employed lawyers and compares them with the advantages that may be obtained by incorporation—both firm incorporation and individual incorporations within a firm. He explores a variety of tax issues, including important related Tax Court decisions, and makes recommendations with respect to adopting a strategy by a particular lawyer or firm.

The third report in a study of career-relevant changes in interests, attitudes, and personality characteristics among first-year law students at Brigham Young University, this article examines the impacts of five kinds of possible causes of interest changes. The author elaborates what it means to say that a career-relevant interest has “changed” in light of changes due in part to both reconceptions of the content of law and of the demands and rewards of various work settings and to changes in the students' conceptions of themselves which carry with them changes in career interests.

The preponderance-of-the-evidence standard usually is understood to mean that the plaintiff must show that the probability that the defendant is in fact liable exceeds 1/2. Several commentators and at least one court have suggested that in some situations it may be preferable to make each defendant pay plaintiff's damages discounted by the probability that the defendant in question is in fact liable. This article analyzes these and other decision rules from the standpoint of statistical decision theory. It argues that in most cases involving only one potential defendant, the conventional interpretation of the preponderance standard is appropriate, but it notes an important exception. The article also considers cases involving many defendants, only one of whom could have caused the injury to plaintiff. It argues that ordinarily the single defendant most likely to have been responsible should be liable for all the damages, even when the probability associated with this defendant is less than 1/2. At the same time, it identifies certain multiple-defendant cases in which the rule that weights each defendant's damages by the probability of that defendant's liability should apply.