Within the burgeoning global discourse on human rights, gender violence provides one of the most important examples of the use of rights to tackle a newly defined social problem. A comparison of three quite different approaches to violence against women in a single town, each of which is rooted in a global movement, reveals sharp differences in the way the problem is defined and the solutions are imagined. One approach focuses on the assertion of rights and relies on a feminist analysis of patriarchy, another on prayer and the elimination of enemy forces within a framework of Pentecostal Christianity, and one on repentance and reconciliation within the framework of the family and the community. Despite these differences, however, all three employ similar technologies of the self, focusing on knowing feelings, making choices, and building self-esteem. This article demonstrates how globalization allows differences on the basis of religion and culture while promoting similarities in techniques of fashioning the self, thus promoting modern subjectivity in the midst of difference.

Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law “from below”: a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.

In this essay I make a case for what I call a “moderate” and also an “empirically grounded” social constructionist approach, which I conceptualize as a further development of numerous strands of a longstanding and rich tradition. I argue that this approach, one I see as emergent now in cross-disciplinary work like that presented in this Symposium, can help to move scholarly discourse past the impasses posed by dichotomous, either/or thinking about law, society, and epistemology. To orient those unfamiliar with the pertinent scholarship, I begin with a sketch of the intellectual traditions and issues involved.

A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less-intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.

The experiences of 798 burglary and larceny defendants in the criminal courts of Mecklenburg County, North Carolina, in 1971 were studied to identify the factors having the greatest influence on the defendant's likelihood of emerging from court with an active prison sentence. The following variables were found to have a significant effect, listed in order of importance: (1) severity of offense (defined in terms of value of property taken and degree of skill required)—positive effect; (2) defendant's income—negative effect; (3) prior arrest record—positive effect; (4) strength of case against defendant as determined by promptness of arrest—positive effect. The influence of the defendant's sex could not be measured because there were too few females in the sample. Race, age, and employment were found to be of little or no importance. The four most important variables had a generally additive effect on prison probability.

Further analysis showed that the defendant's income affected not whether he was convicted of an offense, but the likelihood of going to prison after conviction. Most of this effect could be explained by the low-income defendant's poorer opportunity for pretrial release and greater likelihood of having a court-appointed rather than privately retained attorney. This suggests that the apparent disadvantage of the low-income defendant could be overcome by improvement of pretrial release and defense service.

The study's implications with regard to sentencing procedures are discussed. Judges' wide latitude in imposing sentence may enable the defendant's income to exert the large influence that it apparently does, but narrowing judicial discretion may not reduce the effect of income if present plea bargaining practices continue.

This article demonstrates how the content and meaning of California's consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an “institutional-political” theory that demonstrates how organizations' construction of law and compliance within an organizational field shapes the meaning of law among legislators and judges. This study examines case law and more than 35 years of California legislative history concerning its consumer warranty laws. Using institutional and political analysis, I show how auto manufacturers, who were initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers first using manufacturer-sponsored venues. Organizational venue creation resulted in public legal rights being redefined and controlled by private organizations.

Research on punitive attitudes has, so far, focused largely on people's retributive attitudes toward offenders. However, a large theoretical body of research indicates that concerns about different types of offenses and victims may be just as important in structuring punitive attitudes. Particularly, Moral Foundations Theory suggests that distinct punitive attitudes may be based in intuitive moral concerns (“moral foundations”) about offenses that victimize individuals, groups, and the “divine,” referring to bodily purity or sanctity. In this study, I develop measures of what I term “victim-centered punitiveness,” and use data from a nationwide survey of adult Americans (N = 915) to compare the sources of offender- and victim-centered punitiveness. As expected, different moral foundations shape offender- and victim-centered punitiveness in different ways, suggesting that they have distinct intuitive, moral bases. Other factors, including racial resentment, also have distinct effects on each type of punitiveness.

In recent years, police conduct has rapidly emerged as a major social and political issue. Although both the nature and the outcome of this controversy have important consequences for law and society, its most immediate effects have been evident in changing public attitudes toward police activities. Policemen have become the targets of growing and frequently irreconcilable popular demands both for the maintenance of “law and order” and for the elimination of “police brutality.” Law enforcement agencies, therefore, have seemed to encounter a mounting crisis of public confidence in police practices.

Although the effects of mounting public concern about crime and police protection probably have been most evident among whites (President's Commission on Law Enforcement and Administration of Justice, 1967: 144–149; Ennis, 1967; Feagin, 1970), a desire for increased police protection has also emerged among black Americans. In fact, black attitudes toward police practices have appeared to reflect a perplexing enigma. While many black citizens have complained about harsh or brutal police behavior, they also have expressed intense criticism of a lack of police protection.

The complexity and linguistic construction of jury instructions can inhibit jurors' ability to comprehend and apply the law. Study 1 analyzes questions asked by actual deliberating jurors in order to identify sources of juror misunderstanding in criminal pattern jury instructions. Instructions concerning “reasonable doubt,” criminal “intent,” the use of evidence concerning prior convictions, and the general duties of jurors, are selected for further investigation. Study 2 uses videotaped trial materials to pinpoint linguistic problems that confuse jurors and interfere with their abilities to accurately comprehend and apply the selected pattern jury instructions. Available knowledge concerning psycholinguistics is then applied to rewrite the troublesome instructions; in addition, legal expertise is consulted to help assure that the rewritten instructions are legally valid. Study 3 demonstrates that the rewritten instructions improve jurors' understanding relative to Pattern or No instructions. Overall, the research indicates the availability to the criminal justice system of improved methods for instructing jurors accurately and effectively in the law.

Recent “alternatives” to law assume diverse forms and include various community mediation programs. Proponents see these programs as a triumph of empowered individuals and communities over the state. By contrast, early critics—in their various ways—view such programs as an expansion and intensification of state control. Against both, and working with “new informalist” insights, this article focuses on the political logic of community mediation practices. Drawing on Foucault, it explores mediation as a governmentalization (cf. expansion) of state dispute resolution which marshals both techniques of discipline and self in an attempt to produce peaceful individual selves. A case study is used to analyze community mediation as a confessional institution that deploys sociocultural pressures in search of nondisputing self-identities. The article concludes that the search for fixed notions of individual, self, or even community empowerment may entrench, rather than resist, current forms of regulation in dispute resolution arenas.

Legal culture is a socially derived product encompassing such interrelated concepts as legitimacy and acceptance of authorities, preferences for and beliefs about dispute arrangements, and authorities' use of discretionary power. This study investigated five attributes of legal culture by comparing subjective notions of law and the legal system of respondents from Turkey (Kurds), Lebanon, and Germany. Our samples fell into two distinct groups on cultural orientation: the German group showed a distinct individualistic orientation; the two other groups (Kurds and Lebanese) showed a relative collectivistic orientation. The findings suggest a substantial variety of legal preferences and practices between the two orientations. Collectivistic groups had a greater preference for abiding by the norms of tradition and religion and were less willing to let state law regulate in-group disputes; individualistic respondents showed a clear preference for formal procedures and guidelines. The study suggests that legal norms prevailing in Western societies may be inconsequential to people socialized in other cultures. Implications of diverse conceptions of law, legal expectations, and legitimacy for various cultural groups in multiethnic and plural societies are discussed.

This article examines the institutional impact of environmental management systems (EMSs), focusing on ISO 14001. It develops a pluralistic framework for thinking about the dynamic of corporate self-regulation that we term the polyphonic model. It argues that the adoption of ISO 14001 can move the firm into a new equilibrium trajectory, which enmeshes together environmental and economic goals and reflects greater sensitivity to ecological concerns. There is a positive reciprocal cycle between the pro-environmental structural changes induced by ISO 14001 and the employees' attitudes toward the firm and the environment. In order to examine ISO 14001 institutional impact, we conducted a series of interviews with managers and administered questionnaires to employees in 24 Israeli firms with and without certification. The findings indicate that the perceived environmental commitment of certified firms was higher than that of noncertified firms and was higher among employees that perceived the EMS as more highly integrated in the firm. Perceptions of the standard's integration were also found to be positively correlated with personal environmental commitment. The results also indicate that the increase in the firm's environmental commitment was positively associated with employees' organizational citizenship behavior within certified firms. Further indications of the pro-environmental dynamic induced by ISO 14001 were found in the in-depth interviews.

In jurisdictions throughout United States, thousands of sexual assault kits (SAKs) (also termed “rape kits”) have not been submitted by the police for forensic DNA testing. DNA evidence may be helpful to sexual assault investigations and prosecutions by identifying offenders, revealing serial offenders through DNA matches across cases, and exonerating those who have been wrongly accused, so it is important to understand why police are not utilizing this evidence. In this study, we applied focal concerns theory to understand discretionary practices in rape kit testing. We conducted a three-year ethnography in one city that had large numbers of untested SAKs—Detroit, Michigan—to understand why thousands of SAKs collected between 1980 and 2009 were never submitted by the police for forensic DNA testing. Drawing upon observational, interview, and archival data, we found that while practical concerns regarding resources available for forensic analysis were clearly a factor, as Detroit did not have the funding or staffing to test all SAKs and investigate all reported rapes, focal concerns regarding victim credibility and victim cooperation were more influential in explaining why rape kits were not tested. Implications for the criminal justice system response to sexual assault and rape kit testing legislation are examined.

In their interactions with citizens, police officers are prohibited from (1) using unnecessary Force, (2) Abusing their authority, (3) speaking Discourteously, or (4) using Offensive language, all captured by the acronym FADO. However, acts of police misconduct are complex social phenomena that involve both following legal guidelines and responding to extralegal or mitigating circumstances. Using a factorial survey of police-civilian interactions that introduce various dimensions of FADO and surrounding circumstances, respondents are asked to rate from zero to ten the seriousness of police misconduct in an encounter. Findings show that respondents' judgments of the seriousness of misconduct consider both legal and extralegal dimensions. On the legal side of the ledger, officers' unnecessary use of force and use of offensive language significantly increase judgments of serious misconduct; on the extralegal side of the ledger, civilians' confrontational demeanor significantly reduces judgments of serious misconduct. The findings suggest that citizens expect officers to behave professionally, or by the book, but with a recognition that “street-level” discretion has a place in an officer's toolkit. Citizens' expectations that street-level discretion has its place is also demonstrated by findings for the dimension abuse of authority: Abuse or threatening behavior by officers is not a significant predictor of serious police misconduct. In addition, characteristics of the respondents explain propensities to observe different degrees of police misconduct. Controlling for the social status, political orientation, and prior experience of respondents with the police, we find that (1) blacks rate police misconduct significantly higher than their white counterparts, and (2) liberals rate police misconduct significantly higher than their conservative counterparts. Differences in judgments by blacks and whites and by liberals and conservatives concerning judgments of police misconduct have important implications for the legitimacy of police authority.

Recent research on the functions of imprisonment has begun to provide quantitative, empirical knowledge of its rehabilitative and deterrent effects. Much less is known, however, about the incapacitative effect of imprisonment. While it has long been understood that the physical segregation of prison inmates prevents them from engaging in some criminal activity (as well as much non-criminal activity) during the period of their confinement, quantitative estimates of the size of this effect have been lacking. Leaving aside all deterrent or rehabilitative and counter-rehabilitative effects, it is of some interest to know whether the incapacitative function of imprisonment is large or small.

Researchers often rely on published opinions to draw conclusions about cases decided by the courts, determinants of court decisions, and broader social phenomena. We demonstrate that 80 to 90 percent of employment discrimination cases filed in federal court do not produce a published opinion. There are good theoretical reasons to believe that the process generating a published opinion is not random and thus that samples of published cases will not be representative of all cases. Through a direct comparison of published and unpublished cases, we show that the two actually do differ in significant and predictable ways. Examining several studies that use cases with published opinions for a variety of purposes, we show how our understanding of the operation of employment discrimination law changes—in some instances, dramatically—when we look at all cases, whether or not they have published opinions.

This essay presents three accounts or narratives of globalization. Each narrative describes the triumph of a central character or institution (science, markets, law) against its challenges or enemies (ignorance, regulated or planned economies, human caprice and unreason). The stories convey moral tales about what justice might look like and how social relations might be justly organized and governed. I argue that under the dominant accounts of globalization, the dynamics of power are obscured so that social relations seem to be produced by invisible or natural forces. When the operation of power is masked, I argue, justice, and efforts to confine and regulate power, is made less probable. Law and society scholarship can contribute to a critique of globalization by continuing to identify the ways in which law and power are mutually implicated and embedded in social relations. Rather than describe current forms of international social exchange as globalization, a seemingly neutral terms, the essay urges scholars to identify the role of power by naming global social exchanges as “postmodern colonialism.”

Twenty years after the Supreme Court struck down existing death penalty statutes (Furman v. Georgia 1972) and a day after Justice Thurgood Marshall's death, the senior Justice of the U.S. Supreme Court, Harry Blackmun, charged the Court with coming “perilously close to murder” in its latest death penalty ruling. He made this charge in an unusual oral dissent from a decision which held that a federal appeals court could not hear newly developed evidence of a death row inmate's possible innocence (Herrera v. Collins 1992). The Court, nine months earlier, had barred a lower federal court from hearing new evidence challenging execution by asphyxiation as cruel punishment (Gomez v. U.S. District Court 1992) and had then taken the unprecedented step of ordering no further stays of execution (Vasquez v. Harris 1992).1 How did we reach this point when 20 years earlier the Court had declared that the death penalty as applied was too arbitrary to be constitutionally acceptable, and when virtually all other modern industrialized nations of the free world either had already, or soon would, do away with capital punishment?

This article challenges the prevailing scholarly belief that women have always been at the periphery of crime and argues that a central issue for those studying the criminal process should be the decline over time of women as criminal offenders and defendants. Our argument rests on examination of criminal cases in the Old Bailey in London for 1687–1912, as well as of data drawn from English and some American courts for this period. For much of the eighteenth century women made up a substantial portion (over 45 percent at times) of all those indicted for felony offenses, in sharp contrast to contemporary levels of less that 15 percent. We conclude that the change is “real”—it cannot be explained away as an artifact of selective reporting, shifting jurisdiction, short-lived idiosyncratic enforcement policies, etc. We argue that these changes parallel and may be explained by significant shifts in the roles accorded women in the economy, the family, and society, and we conclude that the vanishing female in the criminal process may reflect a shift to more private forms of social control brought on by shifting social attitudes and the rise of industrialism.

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.