This essay takes the theme of the 1999 annual meeting of the Law and Society Association, “The Legal Imagination: Taking on Cultural Studies,” as an occasion for trying to promote an engagement between sociological studies and cultural studies. It argues that mass mediated images are as powerful and pervasive as other social forces with which sociological studies is already engaged and that the time has come to move from the study of law on the books and in action to law in the image. This argument is developed by analyzing the significance of the ubiquitous presence of tropes of fatherhood in popular cultural iconography about law. Drawing on psychoanalysis, gender theory, and film studies, this essay presents a close reading of a single film, The Sweet Hereafter. This film exemplifies the ways in which fatherhood becomes one of the key terms through which law is mythologized and through which fantasies and anxieties about law are expressed. Exploring the imagination of law in and through mass medicated images, like those contained in The Sweet Hereafter, is an important and engaging new frontier for sociolegal studies.

This study departs from mainstream criminology to approach youth conflict and violence from a youth-centered perspective drawn from cultural studies of young people and sociolegal research. To access youth orientations, we analyze experiential stories of peer conflict written by students at a multiethnic, low-income high school situated in an urban core of the western United States. We argue that youth narratives of conflict offer glimpses into how young people make sense of conflict in their everyday lives, as well as insights as to how the images and decisional bases embedded in their storytelling connect to adult-centered discourses found in popular media and formal education. Our analyses identify a range of story types (“tales”), each marked by a different narrative style, that students fashion as they write about peer conflict: “action tales,” “moral tales,” “expressive tales,” and “rational tales.” In our study, students wrote a majority of stories in the action-tale narrative style. We propose three alternative explanations for this pattern using class code, moral development, and institutional resistance perspectives. Finally, we discuss the theoretical and policy implications of our work and raise questions for future research.

During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interest-group politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self-justification even as it leaves the ultimate validity of racial preferences open to question.

In this article we examine how the concept of hate crime has been transformed in judicial discourse from a broad ambiguous category, which generated substantial controversy and opposition, to a focused determinate legal construct, which has been largely accepted as a legitimate legal practice. We track changes in judicial rhetoric across 38 appellate court opinions that consider the constitutionality of hate crime cases (1984-1999), and we propose a theoretical framework for analyzing the “settling” of legal meaning. A qualitative interpretive analysis demonstrates that the meaning of hate crime that emerges across the series of cases is much richer and nuanced than the collection of words contained in the statutes, and that the domain of hate crime has expanded across the series of cases to include a broader range of behaviors and mental precursors. Quantitative analysis shows that, over time, judges have developed a more economical and formulaic rhetoric for responding to petitioners' constitutional challenges to hate crime statutes and have converged around sets of arguments for negotiating challenges. We discuss the implications of these findings for traditional jurisprudential analyses, sociolegal research on judicial decisionmaking, and research on the social construction of deviance.

Much of the British empire was acquired by purchase rather than conquest, but indigenous peoples usually acquired little wealth despite extensive land sales. Explanations of where the money went tend to blame either the imprudence of indigenous sellers or the duplicity of British buyers. This article suggests that a focus solely on the conduct of the individuals operating within the land market rests on a poor theoretical understanding of the relationship between law and markets, an understanding that blinds historians to the allocative effects of markets' constitutive rules. Using New Zealand as an example, the article shows how the British modified the structure of the land market over the 19th century, sometimes intentionally and sometimes inadvertently, to transfer wealth from the Maori to themselves.

This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianism—decisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes.

The changing rights of legally designated officers provides a comprehensive framework for following American constitutional development over time, in both public and private settings. Rights are defined as judicially enforceable claims on the person or actions of another; development, as enduring change in constitutional provision, structure, and doctrine. It is proposed that constitutional development as a historical process has consisted of a shift in the balance between the rights of officers and the rights of citizens. The framework is demonstrated empirically in connection with the Bill of Rights, federalism, and the separation of powers. Officers' rights is recommended as a method for studying constitutions comparatively and for linking constitutional development to other political events and phenomena like social movements and parties.

I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takèngën, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges' perceptions of a more individualized society.

In this article, I consider how a second face or dimension of covert political power was used to deny legal immigration status to Vietnam War military resisters who sought refuge in Canada during the early years of the largest politically motivated migration since the American Revolution. Recently declassified historical records and interviews with former politicians and administrators reveal that the Canadian Immigration Department and its minister misled the public in advancing an official myth about the evolution of this migration. Until successfully exposed by persistent and innovative investigative journalism, the backstage use of political power kept American Vietnam military resisters who were seeking to legally immigrate defensively framed in a symbolic package that defined them as culturally unsuitable. Several thousand American military resisters lived illegally in Canada until conflict about their plight was successfully broadened and transformed into an effective collective grievance and claim under Canadian immigration law. Once the gap between Canadian immigration law and its practice was fully exposed, the conflict about this policy grew rapidly to include a number of cultural elite groups and a master framing of these American servicemen as unexpected symbols of Canadian sovereignty. A fully elaborated explanation of the collective transformation of sociolegal grievances into successful legal claims requires combined attention to the macrolevel interaction of political power and cultural symbolism.

In this article I address the historical interrelationship of law and social science. I explore the separation of “law” and “social science” during the later 19th century, examine their relationship over the next 50 years, and finally take up their more elaborate post-World War II interaction, culminating in the birth and development of the law and society movement. The narrative focuses on two realms of encounter, the intellectual and the institutional, or “spatial,” and in the latter case on two particular locales—the academy and the state. Histories of the interaction of law and social science have mostly pursued its academic aspect, resulting in a history of encounters expressed primarily as pedagogical disputes. But encounters between law and the social science disciplines are also competitions between distinct languages of state formation. Moments of encounter are moments of rivalry in the state, not simply in the common room. Mostly, I conclude, law wins.

Constitutional scholars have conceptualized Reconstruction debate mainly as a debate over the meaning of the original Constitution. However, Civil War narratives that identified “the problems” with slavery and emplotted the events of slavery politics were a major vehicle by which the Fourteenth Amendment was debated. Dispute over a text (the original Constitution) and dispute over the description of events intertwined. This article elucidates the content of slavery/war narratives and applies them to the domain of constitutional law. Crucial elements of the Northern Democratic war narrative were endorsed by the Supreme Court in the Slaughter-House Cases (1873), even though the Democrats were the legislative losers. Democratic history, grounded on a strong strain of white supremacy extending back to Stephen Douglas, played a crucial role in legitimating the Court's narrow doctrinal interpretations of the Fourteenth Amendment.

One of the most controversial issues in policing concerns allegations of racial bias. This article examines citizens' perceptions of racialized policing in three neighborhoods in Washington, D.C., that vary by racial composition and class position: a middle-class white community, a middle-class black community, and a lower-class black community. In-depth interviews examined residents' perceptions of differential police treatment of individual blacks and whites in Washington and disparate police practices in black and white neighborhoods. Findings indicate, first, that there is substantial agreement across the communities in the belief that police treat blacks and whites differerently; and secondly, there is racial variation in respondents' explanations for racial disparities. On the question of residents' assessments of police relations with their own community relative to other-race communities, a neighborhood difference is found, with the black middle-class neighborhood standing apart from the other two neighborhoods.

Theorists of Critical Legal Studies (CLS) have argued that the abstract, individualistic, and state-dependent character of rights makes them of dubious value for groups fighting for social change. Southern civil rights organizers in the early 1960s engaged in the kind of power-oriented strategy that CLS writers advocate in lieu of a rights-oriented one. However, the rights claims they made inside and outside courtrooms were essential to their political organizing efforts. Far from narrowing collective aspirations to the limits of the law, activists' extension of rights claims to the “unqualified” legitimated assaults on economic inequality, governmental decisionmaking in poverty programs, and the Vietnam War. What made possible this novel formulation was not only the multivalent character of rights but also key features of the social, political, and organizational contexts within which rights were advanced.

Legal scholars have recently been extolling the explanatory potential of behavioral law and economics. This new scholarship seeks to marry insights from traditional microeconomics with findings from the behavioral sciences to produce a descriptively accurate and predictively powerful account of human motivation and decisionmaking to put in the service of legal policy. I examine the claims being made on behalf of this new approach. I argue that legal scholars cannot simply use behavioral science in the place of standard microeconomics. More specifically, I argue that once empirical findings are incorporated into legal policy analysis, it becomes necessary to forsake aspirations of broad generalizability and predictive determinacy. I conclude that legal policies and initiatives need to be informed by a modest conception of social science. Such a conception acknowledges the limitation of social science knowledge and recognizes that strong causal explanations of human behavior cannot be permitted to supplant normative debate.

In the mid-1980s, many blood transfusion recipients and close to half of Japanese, American, and French hemophiliacs realized that they had been infected with HIV-contaminated blood. In this article I argue that the legal conflicts over HIV-tainted blood in those three nations defy conventional comparative claims about courts, conflict, and compensation. I first describe the similar policy responses of France, Japan, and the United States as public health officials came to realize that HIV threatened the safety of the blood supply. I then focus on what happened when infected individuals began to demand redress. I argue that the mobilization around law by plaintiffs, the centrality of the courts in handling conflicts over HIV and blood, and bold, innovative responses by the judiciary were not distinctive characteristics of the American conflict. Instead, law and courts in all three nations were central players in the battles over blood. Most strikingly, in comparison to courts in the United States, those in France and Japan have been significantly more responsive to plaintiffs' claims. When one looks beyond the courts to legal and legislative action more broadly, the United States has been the least accepting of the plethora of demands for recompense.