In the control of stock fraud, criminal prosecution is the road not taken: only six of every hundred parties investigated by the Securities and Exchange Commission ultimately stand in judgment before a criminal court. This paper examines the role of criminal prosecution in controlling securities violations. It traces the SEC enforcement process in which most stock swindlers are diverted from criminal prosecution and treated civilly or administratively or spared legal action entirely. It finds that the criminal process attracts the most significant offenses, but also those about which little else can be done. In this light, the paper reconsiders the controversial finding that upper status white-collar offenders fare no better and often worse than their lower status counterparts at criminal sentencing. It finds a double standard, but one with some surprising implications.

During the twenty years since the founding of the Law and Society Association, a distinctive “law and society” discourse has emerged and been institutionalized in a multidisciplinary scholarly community, which has been instrumental in producing a tremendous increase in systematic knowledge about the law in action. The growth of law and society research has accompanied other changes in the distribution of information about the legal process, including a new legal journalism and greater media coverage that make the law in action more visible to a wider audience. Current distress of legal elites about the hypertrophy of legal institutions is viewed as a reaction to the increased currency of information that discredits the received picture of the legal world. The coincidence of structural changes in law with changes in the social institutions of knowledge about law creates the possibility of a more responsive and inquiring legal process.

In this paper I note the growth of analyses of law that focus upon its ideological character and content, and I identify problems and difficulties manifest in the ideological analysis in recent critical and Marxist texts. The paper argues that work focusing upon the ideological character of law realizes significant advances over that produced by the more orthodox approaches within the sociology of law and jurisprudence employing normative analysis. It is possible to make ideological analysis more rigorous. The paper outlines the elements of a theory of and methodology for the ideological analysis of law.

This study is an exploratory social history of litigation about public education. Using West digests as an index of appellate cases, it first examines the changing volume and character of litigation from the earliest recorded cases until 1981. It then relates trends in litigation to two broad phases of educational history: the system-building era, when courts helped to clarify the lines of authority in an ambiguously decentralized system; and the new functions of litigation in the twentieth century, when administrative progressives sought to use legislation to reshape schooling. It turns then to the relation between school law and social conflict over basic dividing lines of religion, race, and ethnicity and suggests that courts played a relatively small role in adjudicating such issues until recent times. Finally, it contrasts the recent history of litigation—by some called a “legal revolution”—when excluded groups sought to reshape schooling.

Law occupies a critical place in a Marxist theory of society. Yet Marx and Engels did not provide a coherent and detailed discussion of law. Subsequent writers in the Marxist tradition have either developed simplistic versions of the unsustainable thesis that the capitalist class dominates the legal apparatus in a capitalist society, or they have virtually abandoned Marxism as a framework for analysis of the law. This paper examines leading texts of Marx and Engels and employs them to provide the outlines of a plausible Marxist theory of law that can embrace the rich complexity of legal activity in a modern capitalist society.

Legal powers given to administrative agencies are frequently used as bargaining chips in negotiations between government and business. This paper develops a typology that helps to explain the empirical variety of such bartering. Inquiring into the historical development of bartering, the article shows that what is new is not the practice of but the discourse about bartering. The discourse legitimates bartering with legal powers. This, in turn, will reshape practice, affecting the bargaining positions of the parties, the mode of law-making, the role of third parties and the public, and the potential of the law to induce social change.

This article examines the impact of court-ordered structural reforms on a Texas penitentiary. The staff's prisoner control structure is analyzed before, during, and after the reform measures decreed in the complex and sweeping prison reform case Ruiz v. Estelle (1980). Participant observation and inmate disciplinary report data are utilized to examine how legal intervention affected the prison community. Results show that after the court order was inaugurated, inmate-inmate and inmate-guard violence escalated to new plateaus. The final section compares several aspects of the old and new prisoner control structures and discusses the implications of court reforms for prisoner control.

This article examines the patterns and changes in the way trial courts have handled both civil and criminal matters. It does so by looking for similarities between the civil and criminal dockets in all levels of trial courts in two rural counties in Illinois for a 90-year period (1870-1960). The data from these sites suggest that there may be an overall pattern in the way matters are handled, one that has fluctuations and changes within it but seems to have persisted over time. About 90 percent of the matters filed in the two counties did not involve a contested hearing or judgment. The pattern of handling matters was characterized, instead, by shifts between the routine processing of uncontested matters and matters that dropped out of the courts short of judgment. Contested matters were always the exception and not the rule. Contrary to some claims found in the literature, the shifts within the pattern seem to reflect changes in the mix of court business rather than some fundamental change driven by environmental factors and marking an overall demise of trials.

This paper focuses on the impact of fee arrangement on the amount of time lawyers are likely to devote to civil cases (“effort”). Drawing upon data collected by the Civil Litigation Research Project, we compare the behavior of lawyers working on an hourly fee basis with the behavior of contingent fee lawyers. Like previous work on this issue, the paper finds that fee arrangement does influence the amount of effort lawyers devote to a given case. However, contrary to previous work, the analysis indicates that the effect is not a simple effect on hours worked but a more complex effect on a number of aspects of lawyers' behavior. Together these produce an effect on hours that varies by size of case. For modest cases (with stakes of $6,000 or less), contingent fee lawyers spend less time on a case than hourly fee lawyers. Yet we find no statistically significant evidence of a differential in effort for larger cases but rather an indication that, if there is an effect, it may be in the opposite direction.

This paper examines the cases of 1017 homicide defendants in Florida. Two main data sources are used: the police department's classification of the case, as found in the FBI's Supplemental Homicide Reports, and the prosecutor's classification, as determined by court records. Each data set characterizes the homicide as involving felonious circumstances, possible felonious circumstances, or nonfelonious circumstances. Attention is focused on cases that differ in their police and prosecutorial classifications. Results indicate that differences in these classifications are related to defendant's and victim's race, with blacks accused of killing whites the most likely to be “upgraded” and the least likely to be “downgraded.” The process of upgrading is then shown to significantly increase the likelihood of the imposition of a death sentence in cases with white victims where no plea bargain is offered.

This paper explores the activities of civil litigants in a state trial court between 1820 and 1970. Litigation is considered as essentially a political activity in which the parties utilize the judicial system to promote their respective interests. The analysis indicates that all parties initiate and defend cases consistently in narrow fields across time, representing interests to which the litigants are easily connected. Moreover, if litigation has a large political component, then the inequities and balances of power existing between parties in the wider community probably affect judicial outcomes. To pursue this notion, I classify the court's clientele as either individuals or organizations. Evidence suggests that utilization of the legal process in general, and case outcomes in particular, are determined in part by the pairing of litigants opposing each other. Individuals have more often initiated than defended actions, and the dollar value of their claims has steadily increased, especially against organized opponents. By contrast, organizations have defended much more often than they have filed claims, and their claims are consistently smaller than those pursued by individuals. In general, judicial demands and outcomes vary systematically but consistently over time, according to the legally active group involved, the adversary pairing, and the issues between them.

Parole was introduced in California, and used for over a decade, primarily to relieve governors of part of the burden of exercising clemency to reduce the excessive sentences of selected state prisoners. Later, when parole was additionally used to relieve prison crowding, processes were initiated that eventually led to the adoption of a rehabilitative justification for parole. We outline these events and their background and briefly consider their implications for the study of penal reforms.