Writing in 1950, Hurst (1950: 183) noted that there was far more opinion on the function of courts than actual knowledge of their work. Thirty years later his assessment was only slightly more encouraging, but he noted at least some positive developments. Among them was “a substantial increase in ordered collection and assessment of facts about the flow of court business” (1980–81: 407), some of which tried to cover broad areas of the country and reached back into the nineteenth century. Much of this came from a number of longitudinal studies of court business the findings of which began appearing in publications in the mid-1970s. These were ambitious, pioneering, and often theoretically challenging studies that have spawned a thriving subfield in both the United States and Europe. One of these works is a sixteen-state study of supreme courts covering the years 1870 to 1970, conducted by Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler. My purpose here is to provide an overview of the seven articles reporting on this study that appeared between 1975 and 1987, and to provide a critical review of the four central articles in the series.

Stephen Daniels' essay examines the series of studies of state supreme courts by Bliss Cartwright, Lawrence M. Friedman, Robert A. Kagan, and Stanton Wheeler, studies that report the results of what I will call the State Supreme Court Project. In this comment, I will not focus on the critique that Daniels makes of these studies; rather, I will consider a broader set of issues that his essay and the articles that he discusses raised for me.

The intellectual odyssey of the concept of legal pluralism moves from the discovery of indigenous forms of law among remote African villagers and New Guinea tribesmen to debates concerning the pluralistic qualities of law under advanced capitalism. In the last decade, the concept of legal pluralism has been applied to the study of social and legal ordering in urban industrial societies, primarily the United States, Britain, and France. Indeed, given a sufficiently broad definition of the term legal system, virtually every society is legally plural, whether or not it has a colonial past. Legal pluralism is a central theme in the reconceptualization of the law/society relation.

Merry's comprehensive review shows us how studies of plural normative orderings during the past twenty-five years have greatly enriched our understanding of the complexity of normative structures, their interdependence and the ways in which these structures are involved in human agency. At the same time her review illustrates how little conceptual progress has been made. We do not have a more acute understanding nor a refined conceptual usage of the terms law, normative order, or pluralism. In a way this is reassuring. It tells us that stimulating new research and methodological approaches can be developed without giving much thought to these conceptual problems. The best historical writings in legal pluralism in colonial societies, such as the Dutch studies on Indonesian societies, did not excessively ponder whether the local normative systems should or should not be called law. The neo-classicists of legal pluralism such as Macaulay (1963) and Moore (1973) explicitly did not present their data as legal pluralism, and when Galanter (1981) tells us about indigenous law in western societies he does not make much fuss about it.

Since both law and society and law and economics apply social science concepts and methods to the problems of the legal system, one might think that the two disciplines are natural allies. Indeed, with the largely empirical focus of law and society and the strong emphasis on theory in law and economics, the benefits from collaboration between the two would seem to be particularly great. Perhaps surprisingly, though, they have often been at odds with one another, with both groups willing to concede only grudgingly that the other has made useful contributions to the study of legal and public policy issues. The hostility is reflected in the fact that, at recent law and society meetings, very few devotees of law and economics have been in attendance, either as speakers or as members of the audience. What then can explain this chill?

In his discussion of modern society, Habermas begins with Weber's thesis of a universal rationalization process within which the rationalization of law plays a central part. Thus his starting point is the classical thesis of the formal rationalization of law as advanced by Weber (1960; Schluchter, 1979). Habermas tries to show that Weber's theorizing is deficient because he underestimates the specific historical role of the materialization of law (1981, Vol. 1: 332). Additionally, such theorizing does not allow us an adequate grasp of some recent developments that proceduralize law (Teubner, 1983, 1984; Eder, 1986). From the perspective of Weber's theory of formal rationalization, the processes that materialize and proceduralize law appear to be aberrations from the normal path of modern legal development. Habermas suggests that, far from being deficient, these processes are necessary forms of law in the process of modernization. The appearance of deficiency proceeds from Weber's attempt to separate morality from law and to conceptualize a moral-free law, a corollary of Weber's plea for a value-free science. Habermas concludes that formal rationalization is an inadequate model of law operating in the modern welfare state. Thus a new model is in order.

The first difficulty in Eder is that the experience of academics working in the common law tradition renders us skeptical about the possibility that there could be something like an overall sociological theory of “the law.” What those in the Weberian tradition, including for these purposes Habermas, see as the law appears to us as quite a jumble of relatively discrete topics, such that the law of torts which looks different from the law of criminal procedure and, what is worse, the law of the sixth amendment's requirements with respect to counsel which looks different from the law of the sixth amendment's requirement with respect to confrontation of adverse witnesses. Nor does it seem to us that there are any readily available generalizations concerning long-term trends, as distinct from short-term variations attributable to differences among judges in their political preferences.

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

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

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

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

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

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

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

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

The history of the modern movement for civil rights for people with mental disabilities is chronicled in the three editions of the American Bar Foundation's treatise, The Mentally Disabled and the Law. Each presents a snapshot of the status of the law at the time of its publication. Taken together, they provide an overview of the extent of the movement's successes and the speed with which they have been attained in recent years. The first edition, published in 1961, describes the law as it had developed during the years following World War II, and argues that it has been “an opportune time to re-evaluate the law” (Lindman and McIntyre, 1961: 14) and to bring it into conformity with modern scientific understanding of the nature of mental disability and contemporary public opinion concerning individual rights (Ibid.). The second edition, published in 1971, recounts the changes that had taken place in the 1960s, primarily the increasing federal activity in the field of mental disability, as well as scattered developments in state case law and legislation. But its authors again conclude that “[t]he factors conducive to a thorough examination and réévaluation of the laws as they relate to the rights of the mentally disabled exist today to a greater extent than ever before” (Brakel and Rock, 1971: 8).

Although it is beyond doubt that participation observation is one of the best methods by which to gather precise information about the role of police in Japanese society, Japanese scholars have rarely undertaken this kind of research. The sole exception has been juvenile delinquency, but even in this area Japanese scholars have failed to explore juvenile crime. Japanese police refused either to be observed or criticized by Japanese scholars, even to the point of opening the interrogation rooms, or Ryuchijyo, in police stations. Believing that the low crime rate in Japan reflected their success, police officials concluded that they had little to learn.

Since the 1940s Takeyoshi Kawashima has been Japan's most distinguished legal sociologist. It is hardly an exaggeration to say that commenting on Kawashima's contributions to the sociology of law is almost equivalent to commenting on the sociology of law in Japan itself (1982–1986). International readers have not fully appreciated his work for two reasons. First, few of his writings are in English and those pieces that are translated do not encompass his major contributions. Second, there are relatively few works published in English on the sociology of law in Japan. Those studies that have appeared stress the uniqueness of Japanese legal culture. As a result, international readers have come to consider Kawashima's scholarship (while brilliant) irrelevant to theory building in the sociology of law.

These five recent books explore important questions regarding the press and the First Amendment. With the exception of A Question of Sedition, all deal with the relationship between the press and the public, rather than the relationship between the press and the government. In the 1950s and 1960s, most First Amendment doctrines were carved out through conflicts between the government and the press. In A Question of Sedition, Washburn presents such a conventional First Amendment setting in his description of the harassment of the black press by the Roosevelt administration during World War II. Washburn tells the unsurprising story of the attempts by J. Edgar Hoover and others in the government to silence the black press and its denunciation of discrimination in both the military and in American society. The hero in Washburn's story is Attorney General Francis Biddle, who almost single-handedly prevented official government suppression of the black press during World War II. In many ways, Washburn's book is an official recognition of Biddle's “contribution to the preservation of freedom of the press” (p. 205). On a more subtle level, however, it is also a description of the antilibertarian forces at work in our society (explained more in The Tolerant Society).