Socio-legal Literature Research Articles

Distributive Justice through Tort (and Why Sociolegal Scholars Should Care)

Drawing on two books central to an emerging sociolegal literature about tort—Fault Lines: Tort Law as Cultural Practice, a collection edited by David M. Engel and Michael McCann, and Torts, Egalitarianism and Distributive Justice, a monograph by Tsachi Keren‐Paz—this essay argues that tort law in the United States redistributes wealth in ways that ought to trouble sociolegal scholars and enlist their reformist energy. Read together, the two volumes offer considerable description and critique of a distributive injustice, and lead to important proposals for change.

Does Torture Work? A Sociolegal Assessment of the Practice in Historical and Global Perspective

Torture is absolutely prohibited and constitutes one of the core crimes under international law. There is a substantial body of sociolegal literature that addresses torture's illegality. But this article tackles the question “does torture work?” The analysis locates the practice of torture in historical and global perspective, accommodating but not constrained by post-9/11 scholarship on American torture. The titular question is treated more critically and comprehensively than a narrowly construed focus on the value and veracity of utterances produced as a result of pain and suffering. Drawing on scholarship from a variety of fields, the article addresses how torture works (i.e., why it has been used and its effects) in order to highlight the role of torture in the mutually constitutive histories of law-state-society relations. The final section uses the American case to offer conclusions about the efficacy and effects of torture.

Fire in the Hole: Empirical Testing of a Pro-Government/Anti-Plaintiff Bias in the Admissibility of Scientific Experts in Criminal and Civil Cases

This article examines the highly debated topic among sociologists, legal scholars and policy makers regarding the differential admissibility of expert evidence in criminal and civil cases. The U.S. standards and principles of the admission of scientific and non-scientific expert testimony has been greatly influenced by the U.S. Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. and concurrent cases commonly referred to as the Daubert trilogy. These cases have produced substantial legal commentary and some empirical research examining their effect on case outcomes and judicial behavior. Anecdotal evidence based on experience and case studies report a differential treatment of expert evidence in criminal and civil cases. In criminal cases, legal scholars complain that admissibility standards are applied too leniently favoring the admission of the prosecution’s experts over criminal defendants, suggesting a pro-government bias. Conversely, under the same admissibility standards, in civil cases, legal scholars complain that the standards are applied more strictly than in criminal cases and that expert evidence proffered by plaintiffs are scrutinized more rigorously than those proffered by civil defendants, suggesting an anti-plaintiff bias. Despite the perceived consensus among legal and socio-legal scholars about this bias, there has been little empirical research testing this phenomenon. The current study quantifies and systematically records the frequencies of the admissibility of a single form of expert evidence, cause and origin of fire experts, as proffered by prosecutors, criminal defendants, plaintiffs and civil defendants in criminal and civil cases. By holding the type of expert evidence constant between the types of cases and legal actors, we can empirically test the proposed pro-government/anti-plaintiff bias that has been conventionally accepted in the socio-legal literature based largely on anecdotal evidence.

What is Non-State Law? Mapping the Other Hemisphere of the Legal World

In recent years, the number of references to has increased dramatically. Most of these publications, however, on subjects ranging from customary law and indigenous rights to the rules of the world-wide-web, struggle with the same fundamental question: What is non-state law? Because most of this literature has a strong normative focus, important conceptual and empirical questions are left unanswered. This paper is an attempt to fill this gap. It is not a critique of the previous work by lawyers, social scientists and theorists. Neither does this paper set out its own theory of non-state law. Instead, its goal is more modest: to review the socio-legal literature on non-state law and to draw a tentative conceptual map of this hemisphere of the world. The first half of this paper discusses three waves of attention for non-state law in the socio-legal literature: colonialism, legal pluralism at home and globalization. In the second half, this literature is used to draw a conceptual map of non-state law. One dimension of this map differentiates between non-state law within and without the national state. The other dimension differentiates between non-state law as rules of conduct and as norms for decision. In this way, our map locates four different types of non-state law. Writing in the early twentieth century, Eugen Ehrlich argued that the scholars of his day seriously impoverished the science of law because they confined their attention to the national state. Today, in the rapidly changing Global Bukowina of the twenty-first century, Ehrlich's plea for a decoupling of law from the state has still lost little of its relevance and a liberation from these shackles seems more appropriate than ever.

Bureaucratic Disentitlement, Vulnerable People, and the Appeal of Review

This important study highlights how little we know and how much we ought to know about how administrative disputes arise (or, more to the point, fail to arise). The authors, David Cowan and Simon Halliday, state that the purpose of their study is to 'test the explanatory models of disputing behaviour which exist in the general socio-legal literature'. The study does far more than this, however, and provides a rare window into not just the practice of seeking redress for adverse discretionary decisions but also the perception of that redress from the vantage of those affected. This study is all the more timely and important in light of the kind of administrative disputes involving invariably vulnerable parties on which it focuses – that is, challenges of negative determinations for public housing. Reliable, empirical work among vulnerable groups in the administrative decision-making sphere is rare – especially studies, like this one, which emphasize interviews and data culled both from case-workers and welfare recipients across two different geographical settings. Because of the empirical heavy lifting undertaken by the authors, however, some of the richest normative questions raised by the study, such as the role of trust and dependence in the nature of bureaucratic authority, are only lightly touched and remain to be more fully developed.

Towards an enabling research agenda for the accounting/contracting nexus

Although it shares many similar concerns with the critical accounting project, the socio-legal approach has been neglected in the accounting literature. Drawing on the socio-legal literature, the paper argues that the law-and-economics model of contract ignores the diversity of judicial ideologies as well as failing to explain empirical evidence on the opportunistic use or non-use of contract in business relations. Presenting a summary of the complex linkages between accounting and contract, the paper demonstrates the possibilities of a shared enabling and emancipatory research agenda for the accounting/contracting nexus. Given that practitioners who promote strategic alliances and partnerships have already embraced much of the rhetoric of the relational contract, the paper argues for more empirical studies that examine whether the longer-term outcomes have delivered the proclaimed benefits.

Legal Consciousness and Dispute Resolution: Different Disputing Behavior at Two Similar Taxicab Companies

This article examines how workers perceive the laws and rules that regulate their workplaces and how these perceptions differ depending on whether one works in an organization with a high level of worker-manager cooperation versus one with a more conventional hierarchy. Using two cab companies as examples, this article explores how these divergent organizational structures generate different grievance cultures that in turn encourage alternate understanding of available choices and appropriate means for resolving such disputes. This work expands the current sociolegal literature on legal consciousness by focusing on formal and informal workplace grievance resolution and perceptions of workplace conflict. In exploring the critical decision making regarding grievance resolution, this article begins an important discussion about workplace empowerment and legal consciousness. This study uses qualitative methods to examine 33 open-ended interviews. The use of qualitative methods permits a vibrant dialog that illustrates the legal consciousness of the subjects. The subjects' own words reveal their comprehension of rules, regulations, and procedures as well as their individual relationships with the grievance-resolution options in their workplaces. To shout at a cheating coworker or to slash the tires of his car? To approach a manager who treated you unfairly or to bring a formal grievance? To accept unfair treatment without taking any action, or to quit outright?

Don>>t Trust Me, I>>m a Doctor: Medical Regulation and the 1999 NHS Reforms

This article examines recent developments in the regulation of the medical profession in England, with particular reference to doctors working in the National Health Service (NHS). It is argued that the Health Act 1999 and associated government policies are bringing about a shift from a 'light touch', self-regulatory paradigm to a government-driven, interventionist approach. It is suggested that the reason for the change is not simply a governmental concern with the quality and nature of care provided by doctors, but more significantly, a concern with the cost of that care. The article offers a critique of the new regime, drawing on the socio-legal literature on regulation. Some aspects of the reforms ignore the need to persuade doctors to comply, and may therefore result in cheating or 'creative compliance'; other aspects of the reforms provide doctors with opportunities to 'neutralize' their impact. It concludes with an examination of the wider significance of the change in regulatory paradigm, and of the agenda for future research in this field.

Rethinking Social Control

In the contemporary sociolegal literature, few concepts are invoked more frequently, and with less clarity of meaning and purpose, than that of social control. The ambiguity of the concept is due in large part to its circuitous historical provenance.' The early Chicago sociologists coined the term to signify the interpersonal foundations of the self and social order.2 Parsons synthesized it with elements of Durkheim and Freud as a central component of his social systems theory: Social control in his view was not just an interactional process, but a structural sine qua non of a healthy society.3 Partly in reaction to the smugness of the Parsonsian model, labeling theorists hewed closer to the original Chicago interpretation and gave the concept a critical spin by emphasizing the iatrogenic nature of much deviant behavior4 and by arguing that social control is not a systematic imperative but rather a construction of self-interested moral entrepreneurs.5 More recent critical scholars-a category that includes a wide range of theoretical perspectives,

Law Under Pressure

Carol Harlow and Richard Rawlings, Pressure Through Law