Some of us see law as largely marginal to American life (see, e.g., Macaulay, 1984), but other colleagues assert that law constitutes society. One position does not contradict the other because we are talking about different things. Cases, statutes, and enforcement agencies very seldom directly influence everyday life. At the same time, law is an important part of culture. Despite many debates (see, e.g., Hall, 1977; Harris, 1980; Ortner, 1984), legal culture affects everyday life in important ways. At the very least, it provides a vocabulary with which we rationalize our actions to others and ourselves. As Geertz (1983: 173, 232) insists, “law is not a bounded set of norms …, but part of a distinctive manner of imagining the real.” Law is “meaning … not machinery.” It is “a species of social imagination.” It “is constructive of social realities rather than merely reflective of them.”

This paper discusses Japanese research on legal consciousness (ho-ishiki) and civil disputing. The author presents a recent explication of Takeyoshi Kawashima's concept of legal consciousness as a cultural factor and also proposes to explore the possibility of treating it as an individual, attitudinal factor. He also reviews large-scale surveys of aggregate-level culture and studies on individual-level disputing behavior. The need and possibility of a longitudinal study of individual disputing behavior that uses individual-level attitudes and regional culture as explanatory variables is suggested.

The Japanese Civil Liberties Bureau (CLB) was created to promote individual rights but evolved into an organization that mediates disputes between private parties. Unlike comparable institutions in other societies, the CLB is able to mediate large numbers of cases effectively. Although the conditions under which the agency was created and continues to flourish may be unique to Japan, the ability of the CLB to function in a complex, urbanized society should not be attributed to Japanese tradition and culture alone. Instead, institutions like the CLB play an important role in the shaping of that culture, helping the Japanese to settle disputes without litigation and enabling them to perceive their society as one with little need for litigation. The experience of the CLB should make us rethink some of our commonly held assumptions about how the Japanese deal with disputes.

Many explanations have been proposed for gender differences in criminal court outcomes, but none has been grounded in a systematic study of the reasoning processes used by court officials in sanctioning male and female defendants. Interviews with thirty-five court officials (prosecutors, defense attorneys, probation officers, and judges) are presented here to assess extant theory and to offer a reconceptualization of why gender differences may emerge in the course of “doing justice.” The interviews reveal that the sanctioning process is structured by familial paternalism, that is, a concern to protect family life, men's and women's labor for families, and those dependent on defendants. Familial paternalism more accurately explains family- and gender-based disparities in sentencing than existing social control arguments, and it is distinguished from female paternalism, which is based on the view that women, as the “weaker sex,” are subject to greater court protection than men before the criminal court.

In this paper the author analyzes the exercise of prosecutorial discretion to “go forward” with charges. The author examines the relationship between sources of uncertainty in decision making and the initial decision to begin the criminalization process. Organizational theory bearing on uncertainty avoidance provides the perspective guiding the analysis. The author uses a maximum likelihood procedure to estimate the net effects on the probability of prosecution of a set of variables measuring uncertainty emerging within the backdrop of prosecutorial concern for obtaining a conviction at a jury trial.

We report here the results of two empirical studies of laws mandating a jail term of forty-eight consecutive hours for repeat-offender drunk drivers. In both cases, noncompliance by judges, abetted by other criminal justice system actors, was extensive, and substantial proportions of offenders were not imprisoned as mandated. We explain these findings as evidence of both a disjunction between formal and operative definitions of the behavior in question—drunk driving—and the great difficulty of controlling the discretion of actors in the criminal justice system.

Lower federal courts are crucial to the interpretation and implementation of Supreme Court decisions. Research demonstrates considerable variation in their responses to these decisions. Explanations of these responses are not well developed, and few efforts test competing hypotheses. My research tests the hypotheses derived from two models of lower court behavior—a legal model and a political model. The analysis demonstrates that the legal model accounts for more variation in the use of Supreme Court decisions by lower federal courts.

This research note examines the relationship between fee arrangements and negotiation in civil litigation. Data collected by the Civil Litigation Research Project suggests a strong tendency for lawyers working on a contingent fee basis to focus their negotiation on monetary goals. While this finding should not be surprising, it has significant implications for recent discussions of negotiation and settlement.