Law and

Society
An Introduction

John Harrison Watts • Cliff Roberson

Law and
Society
An Introduction
Law and
Society
An Introduction
John Harrison Watts • Cliff Roberson

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 For Harrison
To Gary Bayens who has been such a great mentor. As an
inspiration for my daughters: Whitney, Mariah, and Makayla.

For Cliff
To Elena Azaola for her continuing support, to Stephanie
Teeselink for her assistance, and Geneva, Nikkita, Isiah,
Trevor, Amy, Iain, and Asher—my grandchildren.
Contents

Preface xv
About the Authors xvii

1 An Overview of Law and Society 1

Chapter Objectives 1
Introduction 1
Law and Society 2
Definitions of Law 4
Functions of the Legal System 7
Dysfunctions of the Legal System 9
Law and Morality 11
Classifications of Legal Rules 12
Approaches to Law and Society 18
Consensus Paradigm 18
Conflict Paradigm 19
Rule of Law 20
Summary 22
Endnotes 27

2 Legal Systems 31
Chapter Objectives 31
Common-Law Systems 31
Civil-Law Systems 35
Islamic 38
Socialist 38
American Indian Law 39
Theories of Law 40
Natural Law 41
Legal Positivism 43
European Pioneer Theorists 43
Baron de Montesquieu (Charles Louis de Secondat
1689–1755) 43
Herbert Spencer (1820–1903) 44
Sir Henry Sumner Maine (1822–1888) 44

vii
viii Contents

Interrelationship between Society and Law 45

Karl Marx (1818–1883) 45
Max Weber (1864–1920) 46
Emile Durkheim (1858–1917) 47
Sociological Jurisprudence Movement 48
Roscoe Pound 49
Benjamin Nathan Cardozo (1870–1938) 50
Legal Realism 51
Oliver Wendell Holmes 51
Karl Llewellyn (1893–1962) 52
Jerome Frank (1889–1957) 52
Max Gluckman (1911–1975) 52
Modern Legal Theorists 53
John Rawls 53
Richard Posner 53
Laura Nader 54
Donald Black 54
Edward Levi 55
Critical Legal Studies 55
Feminist Legal Theories 56
Critical Race Theory 57
Summary 58
Endnotes 61

3 Social Research Methods 63

Chapter Objectives 63
Introduction 63
Fundamentals of Research 64
Methods of Inquiry 65
The Experimental Method 67
The Classic Experimental Design 68
The Solomon Four-Group Design 69
The Posttest-Only Control-Group Design 70
Quasi-Experimental Designs 70
Nonrandomized Control Group Pretest-Posttest Design 70
Time-Series Designs 71
Equivalent Time-Samples Design 72
The Observation Method 72
Types of Participant Observation 73
Simulation Research 75
The Survey Method 76
Personal Interviews 77
Contents ix

Telephone Interviews 78
Mail Surveys 78
Historical and Archival Research 80
The Case Study 82
Policy and Evaluation Research 84
Differentiating Between Social and Criminal Justice 87
Key Terms 90
Endnotes 90

4 Legal Structures 93
Chapter Objectives 93
Introduction 93
Courts 94
Court Jurisdiction 94
Court Organization 95
The State Court System 95
Courts of Limited and Specific Jurisdiction 96
State Court of Appeals 96
Federal Court System 97
U.S. District Courts 97
U.S. Courts of Appeals 98
Supreme Court of the United States 98
Court Unification Movements 99
Classifications of Law 100
Common Law and Civil Law Systems 100
Sources of Law: Constitutional, Statutory, and Case Law 101
Constitutional Law 101
Statutory Law 102
Case Law 103
Scope of the Law 103
Administrative Law 103
Civil and Criminal Law 104
Functions: Substantive and Procedural Law 106
Participants 106
Litigants 107
Counsel 107
Judges 108
Juries 109
Grand Juries 110
The Court Administrator 110
Flow of Litigation in Civil Proceedings 111
Flow of Criminal Proceedings 114
x Contents

Lawmaking 117
U.S. Congress 118
State Legislatures 121
How a Bill Becomes a Law 122
Introduction of a Bill 122
Assignment to Committee 122
First, Second, and Third Readings 123
Senate 123
Conference Committees 123
Executive Actions 124
Administrative Agencies and Rulemaking 124
Lobbyists 124
Governance of Lobbyists 125
Law Enforcers 126
Local Law Enforcement 127
State Law Enforcement 127
Federal Law Enforcement 127
Punishment 128
Sentencing Guidelines 128
Correctional Institutions 129
Community-Based Corrections 130
Summary 131
Endnotes 135

5 Social Control 137

Chapter Objectives 137
Behavior and Social Controls 137
Informal Social Controls 139
Enforcement of Norms 140
Social Norms and Deviance 142
Moral Learning 142
Formal Controls 144
Criminal Law 146
Texas Penal Code, Section 49.02 147
Victimless Crimes 148
White-Collar Crimes 150
Civil Commitment 150
Administrative Law 151
Tort Law 151
Contract Law 152
Controlling Dissent 152
Individual Rights versus Law and Order 152
Contents xi

Civil Disobedience 152

Freedoms of Speech, Association, and Press 154
Language Morphology Issues 154
Summary 155
Endnotes 156

6 Lawmaking as a Form of Social Control 159

Chapter Objectives 159
Introduction 159
Nature of Lawmaking 164
Group-Influence Model 165
Functionalist View 165
Conflict Perspective 166
Legislative Lawmaking 166
Legislative Committee Work 168
Role Orientation 169
Term Limits 170
Congressional Investigation 173
Administrative Lawmaking 177
Proclamations and Executive Orders 181
Judicial Lawmaking 187
The Use of Writs 188
Lawmaking by Precedents 189
Interest Groups 193
Source of Funds 195
Endnotes 196

7 Dispute Resolution 199

Chapter Objectives 199
Introduction 199
Hidden Harmony Myth 201
Dispute Categories 201
Dispute Resolution Methods 201
Hierarchy of Types 203
Litigation as a Means of Resolving Disputes 203
Alternative Dispute Resolution 204
Court-Annexed Arbitration 205
Mediation 206
Arbitration 206
Selecting an Arbitrator 209
Conflict Resolution and Delinquency 210
International Arbitration and Mediation 211
xii Contents

Endnotes 212

8 Social Change and Law 215

Chapter Objectives 215
Introduction 215
Nature of Social Change and Law 216
Courts as Mechanism for Social Change 217
Magnitude of Court Decisions 222
Legitimacy of Law to Create Social Change 223
Public Opinion 224
Limitations of Law to Create Social Change 224
Impact of Social Change on Law 225
The Civil Rights Movement 226
The Antiwar Movement 226
The Women’s Movement 228
Rights for Sexual Minorities 229
Endnotes 230

9 Lawyers 231
Chapter Objectives 231
Introduction 231
The Legal Profession 232
The Legal Profession in the United States 233
Evolution of the Legal Profession in the United States 233
Legal Education 234
The Legal Profession Today 237
Courthouse Work Groups 237
Malpractice 238
Private Practice 239
Lawyer Advertising 239
Should Attorneys Be Allowed to Advertise? 239
Advertisement Restrictions 241
Solicitation of Clients 243
Fields of Practice 243
The Internet 243
Professional Responsibility 244
Lawyer’s Duties to the Client 244
Client’s Rights 246
Duties to Others 247
Conflicts of Interest 249
Trial Publicity 249
Prohibited Conduct by Attorneys 250
Contents xiii

Future of the Law 250

Summary 251
Endnotes 255

10 Private Life and the Law 257

Chapter Objectives 257
Introduction 257
Right to Privacy 258
Privacy Act of 1974 259
Freedom of Information Act 261
The Right of Publicity 264
The Federal Electronic Communications Privacy Act
(ECPA) 265
Computer Fraud and Abuse Act 265
Abortion 278
Pornography 281
Pornography and the Internet 281
Endnotes 283

11 Crime and Justice Issues 285

Chapter Objectives 285
Introduction 285
Exclusionary Rule 286
Plea Bargaining 291
Hate Crimes 292
Stalking 297
Interstate Stalking Punishment and Prevention Act of 1996 298
Punishment 299
State Anti-Stalking Legislation 299
Capital Punishment 301
The Death Penalty in America 302
Imprisonment 303
Private Prisons 304
Endnotes 305

12 Labor Issues and the Law 307

Chapter Objectives 307
Introduction 307
Governmental Labor Policies 308
National Labor Relations Act 309
Present State of Labor Unions 311
xiv Contents

Federal Preemption 311

Exclusivity 311
Employers and Employee Rights 313
Bargaining Subjects 313
Right-to-Work Laws and Unions 315
Concerted Action 316
Union Affairs 317
Fair Labor Standards Act 318
Discrimination 319
Equal Employment Opportunity Commission 320
Pregnancy 320
Age Discrimination 321
Reverse Discrimination 321
Workers’ Compensation 322
Endnotes 323
Preface

This text on the study of law and society is more than a look at how law con-
trols or influences our society. It is designed to open the students’ eyes to the
fascinating topics involving law and society. Our approach is to present a text
that may be used in a one-semester course on law and society or a sociology
of law course. While each chapter builds on the previous chapters, the text is
designed so that the chapters may be studied in a different order, depending
on the design of the course.
The text is written in a manner that may be understood by college stu-
dents and thus enable instructors to focus on selected issues and topics
during class time. Too often in the law and society area, textbooks can be
understood only by instructors, and thus valuable class time must be used
to explain the meaning of the concepts covered in the text. To overcome this
problem, we followed the example of Ernest Hemingway and used familiar,
concrete words and short sentences whenever possible. This approach should
allow valuable class time to be used to encourage critical thinking on the part
of the students.
A few acknowledgments are appropriate: Carolyn Spence, our edi-
tor, for her encouragement and guidance; and our colleagues at Washburn
University, Professors Ted Heim, Michael Birzer, and of course the depart-
ment chair, Gary Bayens. A hug of appreciation to Prudy Taylor Board, the
project editor at Taylor & Francis, and Doug Burke, the copy editor, for an
admirable job in producing a text from the manuscript.

xv
About the Authors

Harrison Watts, PhD, is an associate professor in the Criminal Justice and

Legal Studies Department at Washburn University, Topeka, Kansas. Dr.
Watts’s research interests are legal issues surrounding criminal law. He is the
author of numerous book chapters, journal articles, and instructors’ resource
manuals to accompany textbooks.

Cliff Roberson, LLM, PhD, is an emeritus professor of Criminal Justice at

Washburn University, Topeka, Kansas. Dr. Roberson recently retired as the
managing editor of the international journal, Police Practices and Research
(PPR). PPR is a refereed journal and is distributed in 48 countries. Previously,
he served for four years as the editor in chief of the Professional Issues in
Criminal Justice Journal. He has authored or co-authored more than 50
books and texts on legal subjects.

xvii
An Overview of Law
and Society
1
Chapter Objectives

After reading this chapter you should be able to

• Describe the issues involved with the law and its interchange with society
• Provide a workable definition of law
• Explain how law influences our daily lives
• List and explain the three approaches to issues in law and society
discussed in the chapter
• Discuss the roles sociologists should take when addressing law and
society issues
• Define the concept of rule of law

Introduction

In today’s society, law permeates all forms of our social behavior. The law is
everywhere, with us and around us. To get to class, traffic law dictated the
manner in which we drove or where we walked across the street. Law even
governs our right to sit in class and our obligations to pay tuition. It is a vast,
though sometimes invisible, presence. Chapter 1 introduces readers to the
issues involved between law and society. The problems with definitions of
law are discussed along with classifications of law. Three approaches to law
and society issues are discussed, along with the ramifications associated with
each approach. The final section of the chapter looks at the concept of the
“rule of law.”
The study of law and society has never been more interesting and impor-
tant as it is today. In studying law and society, we should remember that the
law is an enormous and complicated process. Any attempts to simplify it
are usually a failure. The law is also parochial in nature. For example, math-
ematics is more or less the same subject in Rome, Italy, as it is in New York,
New York. The legal system operating in Rome, however, is vastly different
from the legal system operating in New York. While two plus two should
always equal four, the law is constantly changing. Presently, the pace of social
change is unsurpassed in history. The pace of legal change is also unmatched

1
2 Law and Society: An Introduction

in history. Yet, often the law does not keep pace with social change. As will
be noted in the text, changes to laws frequently lag behind social change. In
the text, we present the major theories and points of view without advocating
any particular slant. Our goal is to expose the readers to the major theoreti-
cal perspectives without advocating a particular position, ideology, or theo-
retical position.
Chapter 3 examines the contributions of sociological research and its
impact on the law. There are differences of opinion over what roles sociolo-
gists should take when conducting research in law and society issues. The
traditional approach is that sociologists should conduct their research in a
value-neutral and empirical fashion and then report the findings in a simi-
lar manner. Others contend that sociologists should do more than merely
describe and explain social events. They contend that sociologists should
assert their rights to criticize and advance ways of rectifying or redressing
law and society problems.

A PARADOX
The more civilized individuals become, the greater is the individual’s
need for law, and the more law he or she creates. Law is but a response
to social needs.1
Do you agree with the paradox? Assuming that the paradox is correct,
how do you explain it?

Law and Society

Law and society is the field of study that encompasses the many relationships
between, and the effects of law on, the social sciences and humanities. What
do we mean when we use the term law and society? Secondly, how does the
concept of law and society differ from the field of sociology of law? It may be
easier to consider the second question first.
It is sometimes difficult to distinguish between the fields of law and
society and the sociology of law. There is no bright line separating the
two disciplines. For the purposes of this text, we have accepted Javier
Trevino’s concept of the distinction between the two.2 According to him,
sociology of law analyzes the relationship between law and society from a
sociological perspective, while law and society examines the relationship
from a broader point of view that includes the social sciences as well as
the humanities. Under that concept, sociology of law is a subset of law and
society. Trevino states:
An Overview of Law and Society 3

I define sociology of law, or legal sociology, as an academic specialty within

the general discipline of sociology that attempts to theoretically make sense
of, and explain, the relationship between law and society, the social organiza-
tion of the legal institution (order or system), the social interactions of all who
come in contact with the legal institution and its representatives…, and give
meaning that people give to their legal reality.

Trevino compares his definition of sociology of law with Friedman’s

definition of law and society. Friedman describes law and society as a move-
ment that involves the efforts of legal sociologists and other scholars who
study judicial behavior, historians who explore the role of nineteenth cen-
tury lawyers, psychologists who seek to determine why juries behave the
way they do, and so on. For the purposes of this text, we will consider law
and society as the field of study that encompasses the many relationships
between, and the effects of law on, the social sciences and humanities.
However, many researchers consider that the two terms, law and society and
sociology of law, are interchangeable. For example, Dragan Milovanovic’s
definition of the sociology of law is very similar to Trevino’s definition of
law and society.3
The disciplines of law and sociology are both concerned with norms,
which are rules that prescribe the appropriate behavior for people in given
situations. Both are also concerned with the nature of legitimate authority
and conflict resolution. Other concerns of both disciplines include issues
of human rights, mechanisms of social controls, the relationship between
individuals and political organizations, and formal contract commitments.4
While there are many overlapping concerns, as we will note later, there are
also substantial differences between law and sociology.
In the study of law and society, we should keep in mind that the law is an
authoritative and reactive problem-solving system that is designed to meet
specific social needs. The search for truth has different meanings to the law-
yer and the social scientist. Lawyers and social scientists are, also, reinforced
by different professional cultures. Legal thinking is also different from “sci-
entific” thinking. As noted by Vilhelm Aubert, reasons for this difference in
thinking include:

• Law is more inclined toward what happened in a specific case, while

the social sciences focus on the general.
• Law does not attempt to establish dramatic connections between
means and the ends, e.g., the impact of the verdict on the defendant’s
future conduct.
• The truth in law is normative and not probabilistic, i.e., a law is valid
or invalid, or something happened or it did not happen. There is no
middle ground.
4 Law and Society: An Introduction

• The law is generally oriented toward the past or the present and is
rarely concerned about the future.
• Legal consequences may be valid even if they did not occur. For
example, in a given fact situation involving an alleged theft, the ele-
ment “ownership of property” is valid even if that element is absent
from the fact situation, and thus a required element of the crime is
missing.
• Law is generally a win or lose process with little room for compro-
mise, e.g., the client either wins or loses the case. This does not mean
that there are not compromises in litigation, but only if the case goes
to a judicial conclusion. There is no middle ground.5

The lawyer is an advocate. He or she is concerned about the resolution of

the problems of his or her client. Lawyers are also guided by precedents. In
contrast, the social scientist attempts to attack problems with an open mind
and makes decisions only after all the evidence has been examined.
Lawyers and behavioral scientists do not talk the same language, accord-
ing to Edwin Schur. Lawyers tend to make decisions in the here and now,
while the social scientist has an apparently unlimited willingness to suspend
final judgment on an issue.6 Legal professionals use a strange language that
includes specialized vocabulary and an arcane style, a language that is for-
eign to the social scientist.
In the next section, we will look at the difficult task of defining law. The
concept of society is easier to define. It has several common definitions. One
common definition, and the one we will use for the purposes of this text,
is that a society is a group of people usually having geographical boundar-
ies and sharing certain characteristics such as language or culture. Another
definition is that it is a body of persons associated for a common purpose,
e.g., an association, club, or fraternity. The third definition is that it pertains
to the wealthier portion of a community. For our purposes, we will not use
the latter two definitions when we refer to society.

Definitions of Law

Law is extremely important in our society. Explaining exactly what is meant

by the word law is difficult. Definitions vary widely. Lawrence Friedman
states that law is an everyday word, part of our basic vocabulary. It is, how-
ever, a word of many meanings, “as slippery as glass, as elusive as a soap
bubble.” Law, like the legal system and the legal process, is not a concrete
object. It is a concept, an abstraction, and a social construct.7
John Austin claimed that law may be defined without any reference to
its content. According to him, law is simply the command of the sovereign,
An Overview of Law and Society 5

backed by appropriate sanctions. He defined the sovereign as that individual

or body to whom the people have a habit of obedience.8 Austin’s definition
has clarity, but there are many kinds of law to which the model of command
cannot be applied without distortion, e.g., the law of contracts. Too often, our
definitions of law, like Austin’s, concentrate on criminal law and the police.
But law is more than criminal justice. It also includes our civil obligations,
duties, etc. The latter obligations are more numerous than those imposed by
the criminal statutes.
Roscoe Pound, a principal figure in sociological literature, stated that law
was a specialized form of social control that exerts pressure on an individual
“in order to constrain him or her to do his or her part in upholding civilized
society and to deter him or her from antisocial conduct, that is, conduct at
variance with the postulates of social order.”9
Max Weber suggests that law is an order characterized by legitimacy. He
states that “an order will be called law if it is externally guaranteed by the prob-
ability that coercion (physical or psychological), to bring about conformity or
avenge the violation, will be applied by a staff of people holding themselves espe-
cially ready for that purpose.”10 He argues that law has three distinct features
that distinguish it from customs and conventions. The three distinct features are

• The pressures to comply with the law are external.

• The external pressures involve coercion or force.
• Those who implement the coercive threats are individuals whose
official roles are to enforce the law.

Even though customs are rules of conduct, they are not laws because
they do not have the above three functions, and they are generally observed
without deliberation and “without thinking.” Weber labels customary rules
of conduct as usages and points out that there is no sense of duty to follow
them. He considers “conventions” as rules of conduct that involve a sense
of duty and obligation. Pressures, including expressions of disapproval, are
exerted on individuals who do not conform to conventions. Conventions,
unlike the law, lack specialized personnel to implement coercive power to
enforce. Critics of Weber contend that he places too much importance on
coercion and ignores other considerations that induce individuals to obey
the law.11
R. M. Dworkin looked at the “concept of law.” He claimed that law exists
in at least three different senses, each of which is problematic. First, there is
“law” as a distinct and complex type of social institution. Under this sense,
we may consider that “law” is either one of the proudest achievements of
man, or that “law” is an instrument through which the powerful oppress
the weak, or that “law” is more primitive in some societies than in others.
Second, there is “law” as a body of rules that are distinct from other types of
6 Law and Society: An Introduction

rules in society. Third, there is “law” as a particular source of rights, duties,

and obligations in relations with other individuals.12
Donald Black states that law is a governmental control system. According
to him, law is “normative life of a state and its citizens, such as legislation, liti-
gation, and adjudication.”13 Black contends that there are several styles of law
that are observable in every society. Each style of law corresponds to a style
of social control.
Black lists four styles of social control that are represented in law: penal,
compensatory, therapeutic, and conciliatory. The penal style views the devi-
ant as a violator of a prohibition and therefore subjected to condemnation and
punishment. The compensatory style sees a person as bound by a contractual
obligation and therefore owes restitution to the victim. In both the penal and
compensatory style, there is an accuser and a defendant, i.e., a winner and a
loser. In the therapeutic style, the offender’s conduct is described as abnormal
and needing help. The conciliatory style sees the deviant as representative of
one side of a social conflict, and there is a need to resolve the conflict without
consideration of who is right or wrong. Both the therapeutic and conciliatory
styles are designed to help people in trouble and to ameliorate an unpleasant
social situation.
Black contends that the quality of law varies in time and space, that it var-
ies across the centuries, decades and years, months and days, even the hours
of a day. He also contends that it varies across societies, regions, communi-
ties, neighborhoods, families, and relationships of every kind. Black states
that it varies with who complains about whom, who the legal official is, and
who the other parties are. It varies with all aspects of the social environment.
Former Supreme Court Justice Benjamin Cardozo defines law as “a
principle or rule of conduct so established as to justify a prediction with
reasonable certainty that it will be enforced by the courts if its authority is
challenged.”14 Oliver Wendell Holmes defines law as “the prophecies of what
the courts will do in fact, and nothing more pretentious.”15
It is easy to agree with E. Adamson Hoebel, who once noted that the
search for the definition of law is as difficult as the search for the Holy Grail,
and trying to define it precisely can be frustrating.16 It may be easier to con-
sider not a definition, but a framework or perspective for looking at and
understanding the law. The framework includes considering the law

• as a body of rules and

• as a process.

Cardozo, in his previously noted definition, considers the law as a body

of principles or rules of conduct. Relying on the body of rules as the defini-
tion of law implies that if you can recite the rules, you understand the law.
As we progress in the text, you will note that understanding the legal issues
An Overview of Law and Society 7

involves more than a mere recital of the rules. Accordingly, the focus of the
text is on the “legal system,” which is an expanded domain and includes law.
In addition to indicating the problem with finding a single definition of
law, the foregoing definitions show that there are alternative ways of looking
at law. They also indicate the universality of its applicability. Considering law
as both a body of rules and as a process or system allows the reader to take a
considerably broader vision of law. This viewpoint requires the individual to
think not only of the rules (laws), but also of lawmakers, lawbreakers, law-
yers, victims, police, and all others involved in the legal system. It also allows
for consideration of the values that influence individuals and the interaction
among the actors in the legal system.

Functions of the Legal System

The role of the legal system is primarily social control. Everything else is
secondary. It has structure, e.g., courts, lawyers, lawmakers, and police. It
has substance, e.g., rules, norms, and behavior patterns of people. It also has
culture. The legal culture is the climate of social thought and social force that
determines how law is used, avoided, or abused.17 In Chapter 2, the major
legal systems in the world are discussed.
We do not mean to imply that a formal legal system is required in all
societies. For example, some of the early traditional societies relied exclu-
sively on “customs” as the source of rules of appropriate behavior and
resolved disputes by mediation and conciliation by village elders. Many
societies today rely both on a legal system and on “customs” monitored and
enforced by the village elders. In some societies, the majority of disputes
are resolved by village elders. In the United States, we rely very heavily on
the formal legal system to resolve our disputes. Accordingly, we are a very
litigious society.
Conflict or dispute resolution is one process by which the legal system
implements its social control aspects. The dispute or conflict may be two peo-
ple arguing over ownership of an automobile, a married couple over child
custody in a divorce proceeding, or classes of individuals in disagreement
of “the right to demonstrate.” Often the phrase “dispute resolution” is used
when we are talking about small-scale local disagreements between individ-
uals and businesses. Conflict resolution is generally used when referring to
macro disagreements between groups or classes of individuals.
The legal system is also an instrument of social engineering, e.g., restrict-
ing the right of tobacco companies from advertising in order to reduce the
number of individuals who smoke. U.S. citizens are required to pay federal
taxes. A part of the taxes are then given to the needy in the form of food
stamps, medical care, and other types of assistance. The concept of social
engineering does not mean that the legal system is constantly at work
8 Law and Society: An Introduction

reforming society. Generally, the legal system functions to maintain a status

quo rather than to force a change.
The law enforces property rights, creates a monetary system, and enforces
contracts in its function of maintaining a framework of order and thus provides
social control. This does not mean that the legal system is always maintaining
the status quo. There are times when the legal system does enforce change. For
the most part, the change must be regular, orderly, and in a patterned way. In
most cases, for change to take place, there must be an official modification of
the rules (either by Congress or court decision), and then the modification is
enforced by enforcers in the legal system. In many cases, the system also acts
as a safety valve; it prevents too much change and slows down change that goes
too fast. The legal system is also a method for distributing goods and services.
It rations scarce commodities. It uses taxes to redistribute wealth by progres-
sive taxing and then providing public funds to those less fortunate.
Milovanovic provides a similar view as to the functions of a legal system.
He states that law has repressive, facilitative, and ideological dimensions.18
According to him, any given system of law will probably have aspects of all
three within it, although one may be dominant. The repressive function refers
to the coercive nature of the law. Law can be more or less repressive, as the
repressive function is variable. Repressive refers to the degree of mobilization
of physical force in furtherance of social control. There is a theoretical argu-
ment regarding the degree of repression needed within the legal system. One
view (Freudian or Hobbesian perspective) contends that because of strong
hedonistic, self-centered (egoistic), or biological impulses, individuals left in
a state of nature would act out their impulses without regard to the rights of
others if it were not for the repressive functions of the law.
A different perspective contends that while some repressive functions
of the law are necessary, an excessive amount is generated to maintain a
political economic system advantageous to those in power. According to the
Marxist position, the propertied class uses the repressive functions of law to
maintain control at the expense of the laboring class.
The facilitative functions refer to the degree to which the law aids in
ensuring predictability and certainty in behavioral expectations. According
to this perspective, in a rapidly changing society, people need reference
points. We need to know what can happen when we fail to make a car pay-
ment. Can the finance company have us committed to jail? The facilitative
functions of law provide reference points for both the finance company and
for us. Both can predict what will happen if we go to court over the failure to
make the car payment.
The third function of law is as an ideological perspective. Milovanovic
contends that ideology as a belief system is always present in a legal system.
According to him, the law systematically embodies the values of some people
and disregards some values of others. Ideological and repressive functions of
An Overview of Law and Society 9

the legal system often appear together, with the repressive functions enforc-
ing the ideological perspective.

Dysfunctions of the Legal System

There are certain dysfunctions of the legal system that should be consid-
ered. For example, in many cases, justice is denied, and in some cases, inno-
cent people are convicted. Often the wealthy use the law to their advantage.
Reasons given for these dysfunctions include the legal system’s conserva-
tive tendencies, the rigidity inherent in its formal structure, the restrictive
aspects associated with its social control functions, and the fact that certain
types of discrimination are inherent in the law.
Hans Morgenthau suggested that the legal system perpetuates the sta-
tus quo, with the courts being the chief instruments of the system acting as
agents of the status quo.19 By maintaining the status quo, the law has a defi-
nite tendency toward conservatism. Once rights and duties are established
by the legal system, revisions are generally avoided in the interest of protect-
ing predictability and continuity. Social changes in society generally precede
legal changes. Accordingly, in times of crisis, the law is subject to breaking
down, thus providing an opportunity for discontinuous adjustments. A good
example of social changes preceding legal changes occurred in the case of
Baby M.20 In that case, a married couple paid a young woman to bear a child,
using the husband’s sperm. When the baby was born, the womb mother
refused to give up the baby, claiming that she was its mother. The court held
that the contractual agreement could not be enforced. The court then treated
the case as a simple custody dispute case and awarded custody to the father.
Since then, many states have enacted statutes regulating surrogacy contracts.
Some states have enacted legislation banning them.
Legal rules are generally drafted with general, abstract, and universal
terms that produce rigidity inherent in its framework. Accordingly, legal
rules operate as straitjackets in certain situations.
Another dysfunction of the legal system concerns the restrictive aspects
of normative controls. Norms are shared convictions regarding appropri-
ate or inappropriate patterns of behavior for members of a group. Norms
serve to combat social disorganization. In some cases, the legal system can
overstep its boundaries and overregulate certain behaviors and thus become
repressive. According to Roscoe Pound, in the nineteenth century, the public
administration in the United States was hampered by an overrestrictive use
of the legal system.21
Certain types of discrimination are dysfunctions of the legal system. The
system’s rules generally apply to everyone, but the effect of these rules may
fall unevenly on some individuals. As Anatole France21a once stated: “The law
in its majestic equality … forbids the rich as well as the poor from sleeping
10 Law and Society: An Introduction

under bridges, begging in the streets, and stealing bread.” If the traffic fine for
speeding 10 miles over the posted limit is $80.00, what financial effect would
payment of this fine have on you? Would it have the same effect on a multi-
millionaire? The law is often applied unequally. For example, Donald Black
states that the more wealth that people have, the more litigious they are, and
the more success they have with their litigation as well.22 He also contends
that an automobile accident causing an accidental injury to a wealthy person
is more likely to be defined and litigated as a case of negligence than a simi-
lar injury to a person of lesser status. The criminal law case of the famous
football player O.J. Simpson is a good example. Many consider that O.J. was
acquitted not because he was innocent, but because he had an expensive legal
team. If you were under indictment for murder, would you prefer a court-
appointed attorney or the finest legal team that money can buy?

CULTURAL INSANITY
Blaine Gamble was charged with robbing the First National Bank
of Herminie, Pennsylvania. Gamble, allegedly dressed as an elderly
woman, entered the bank and robbed the tellers at gunpoint. At a pre-
trial motion before U.S. District Court Judge William Standish, Gamble
requested that a black psychologist or psychiatrist with expertise on
cultural insanity examine him. He contended that he was a victim of
posttraumatic stress disorder caused by “unwarranted exposure, vic-
timization and repetitive confrontation with white racism.” He stated
he had had scraps with the police and that when he was a teenager, his
mother had showed him a magazine cover depicting a murder victim.
He claimed that he was innocent by reasons of cultural insanity caused
by longtime exposure to racism.23
Should he be allowed to submit this evidence to the jury?

The law is subjected to outside pressures. These pressures come from

special-interest groups, each advocating their special interest or belief.
Regardless of whether you support “gun control” or are against it, you must
recognize that the National Rifle Association is one of the strongest special-
interest groups in the United States. A similar interest group “protects” the
rights of our school teachers. One teacher’s association had so much influ-
ence with senators and congresspersons that a former secretary of education
labeled the association as a “terrorist organization.”
Should we, as a civilized society, use the death penalty? Is abortion a wom-
an’s freedom of choice, or is it murder? Should gay couples be allowed to marry?
These controversial issues indicate that the law is subject to outside pressures.
An Overview of Law and Society 11

Law and Morality

What should be the relationship between law and morality? The First
Amendment to the U.S. Constitution provides that Congress shall make no
law respecting an establishment of religion or prohibiting the free exercise
thereof. There are numerous examples, however, of the law supporting one
view of morality over other views when values clash, e.g., forbidding prayers
in public schools or a woman’s right to abortion. It is often stated that the
bodies of law in the various states in the United States are among the most
moralistic laws in the world.

FIRST AMENDMENT RIGHTS AND THE PULPIT

A 1954 amendment to the Internal Revenue Service Tax Code prohib-
its all tax-exempt organizations, including churches, from directly or
indirectly endorsing candidates for political office. This restriction pre-
vents clergy from advocating a certain political candidate when they
are in their pulpits. In the 2008 election, a small group of clergy held
a Pulpit Freedom day. Thirty-three clergy took an active part in the
event. In the 2012 presidential campaign, a similar Pulpit Freedom day
was held, and over 1,000 clergy took part in it.
While clergy are citizens and have the right to express their politi-
cal opinions, does the flaunting of their political muscle subject their
churches to losing their tax exempt status? Many of the involved clergy
contend that the 1954 amendment to the tax code was politically moti-
vated and is unconstitutional.
Should religious leaders have the right to recommend to their congre-
gations which political candidates they should vote for?
Was the restriction in the tax code designed to increase tax revenue, or
was it designed to control certain individuals’ behavior?

In a pluralistic society like ours, it would be hard for law and morality
to be identical. In almost all societies, however, there is a strong relation-
ship between law and morality. The role of morality and values of social con-
trol are discussed in Chapter 5. One scholar summarized the relationship
between law and morality as follows:

• Society has a moral order. The many different and sometimes con-
flicting values of individuals and institutions may merge into domi-
nant moral positions in a society. These dominant moral positions
constitute the “core” of the moral order. The core is dynamic and as
it changes, society moves in that direction.
12 Law and Society: An Introduction

• The law has moral content. The moral content of the law is also
dynamic and over time as it changes, the law tends to move in the
direction of the change.
• The moral content of the law and the moral order in society are sel-
dom identical.
• A natural and necessary affinity exists between the moral content of
the law and the moral order in society.
• When there is a gap between the two, movement to close the gap
is likely.24

Classifications of Legal Rules

There are common classifications of legal rules (laws). One classification is by

content, i.e., substantive or procedural. A second classification is criminal or
civil. A third classification could be based on how the rule was formulated,
i.e., legislative, administrative, or judge-made. Each law fits within each of
the three classifications, e.g., the prohibition against wrongly taking some-
one’s property without permission would generally be classified as substan-
tive, criminal, and statutory law. Finally, laws may be classified as public or
private laws.
All legal rules may be classified as either substantive or procedural
according to their content. Substantive laws consist of rights, duties, and
prohibitions. They inform us which behaviors are permitted and which are
prohibited. A statute that prohibits firing a weapon from an automobile is
a substantive statute, as is a statute that prohibits the unlawful killing of
another human being. Procedural laws are rules concerning how the legal
process is to be administered, enforced, changed, and used. The laws involv-
ing search and seizure are procedural laws. Laws that describe the formal
processes required to draw up valid wills are also procedural laws.
A public law is one that is concerned with the structure of government,
the duties and powers of officials, and the relationship between individuals
and the government. Public law includes constitutional law, administrative
law, criminal law, and laws relating to the proprietary powers of the state and
its subdivisions. Private laws are substantive, and procedural laws concern
the relationships between individuals. Private laws include the law of torts,
contracts, property rights, wills, inheritance, marriage and dissolution of
marriage, and adoption.
Civil law, as private law, is intended to govern the relationships between
individuals. Violations of civil laws are considered as torts, i.e., private
wrongs for which individuals may seek redress in civil courts. Criminal law
looks at the definition of crime (substantive) and the prosecution of crime
(procedural). Violation of a criminal law is a crime and is an offense against
An Overview of Law and Society 13

the peace and dignity of the society. The distinction between criminal sub-
stantive statutes and civil substantive statutes is that only the violation of
a criminal statute places a person in jeopardy of a criminal sanction, e.g.,
confinement and/or fine. A crime is considered as a “public” offense, and in
theory it is the state, not the individual, who is harmed. It is the state that
takes action against the offender. Henry Hart states that a crime is conduct
that will incur a formal and solemn pronouncement of the moral condem-
nation of the community. According to Hart, both the moral condemna-
tion and the consequences that may follow constitute the punishment for
the offense.25
An act may be both a criminal and civil wrong. For example, Joseph
takes money by force from Robert. The act would be considered the crime
of robbery, and Joseph would be subject to criminal penalties for his con-
duct. The act would also be the private wrong (tort) of wrongful conversion
of property, and Robert could sue Joseph for monetary damages.

CONFLICTED JURY DECISIONS

The famous ex-football player, O.J. Simpson, was found not guilty
of the 1994 murder of his ex-wife Nicole Brown Simpson and her
friend Ronald Goldman in a criminal case prosecuted by the state of
California.
In a separate case, Ronald Goldman’s father, in a civil action, sued O.J.
in a California State court for the wrongful death of Ronald. The jury in
the 1997 civil case found O.J. liable for the wrongful death and awarded
the Goldman family a large sum of money. In the criminal case, the state
was required to prove beyond a reasonable doubt that O.J. committed the
murder. The criminal jury concluded that the state had failed to meet its
burden of proof. In the civil case, the Goldman family was required to
establish by a preponderance of evidence that O.J. committed the acts
that caused the wrongful death of Ronald. Probably because of this lesser
burden of proof, O.J. was determined to be liable for the death of Ronald
Goldman and ordered to pay monetary damages.

Laws are also classified as to their manner of enactment: constitutional,

statutory, judge-made, executive orders, or administrative. Constitutional
law is generally concerned with political organizations and their pow-
ers. It also sets substantive and procedural limitations on governments.
Constitutional law by its very nature is a public law. A law that is created by a
duly enacted statute is a statutory law. Statutory law is also known as legisla-
tive law. Statutory law may either be a public or private law. Judge-made law,
14 Law and Society: An Introduction

also known as case law, is based on appellate court decisions. Usually case
law interprets constitutional and statutory provisions. Executive orders are
regulations issued by the executive branch of a government. Administrative
law is that body of law created by administrative bodies.

ADMINISTRATIVE LAW EXAMPLE

TITLE 29 CODE OF FEDERAL REGULATIONS § 1904(1)(A)
If your company had ten (10) or fewer employees at all times during the
last calendar year, you do not need to keep OSHA (Occupational Safety
and Health Administration) injury and illness records unless OSHA
or the BLS (Bureau of Labor Statistics) informs you in writing that you
must keep records under § 1904.41 or § 1904.42. However, as required
by § 1904.39, all employers covered by the Occupational Safety and
Health Act must report to OSHA any workplace incident that results in
a fatality or the hospitalization of three or more employees.

Judge-Made Law
The Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436
(1966) addressed four different cases involving custodial interrogations.
In each case, the defendant was questioned by police officers, detec-
tives, or a prosecuting attorney in a room in which he was cut off from
the outside world. In none of the cases was the defendant given a full
and effective warning of his rights prior to the interrogation process. In
all the cases, the questioning elicited oral admissions and, in three of
them, signed statements that were admitted at trial.
In the Miranda case, he was arrested at his home and taken in cus-
tody to a police station, where he was identified by the complaining
witness. He was then interrogated by two police officers for two hours,
which resulted in a signed, written confession. At trial, the oral and
written confessions were presented to the jury. Miranda was found
guilty of kidnapping and rape and was sentenced to 20–30 years impris-
onment on each count. On appeal, the supreme court of Arizona held
that Miranda’s constitutional rights were not violated in obtaining the
confession.
The U.S. Supreme Court stated: “The prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against
self-incrimination.”
An Overview of Law and Society 15

Separate Is Not Equal: Another Example of Judge-Made Law

In the case of Brown v. Board of Education, the U.S. Supreme Court
declared state laws establishing separate public schools for black and
white students unconstitutional.26 The decision overturned the 1896
decision of Plessy v. Ferguson, which held that state-sponsored segre-
gation was legal. The U.S. Supreme Court held in the 1896 decision
that as long as the separate facilities for the separate races were equal,
segregation did not violate the Fourteenth Amendment clause that
“no State shall … deny to any person … the equal protection of the
laws.”
The Brown case, decided on May 17, 1954, in a unanimous (9–0)
decision, stated that “separate educational facilities are inher-
ently unequal.” Brown established the rule that racial segregation
was a violation of the Equal Protection Clause of the Fourteenth
Amendment of the U.S. Constitution. This decision paved the way
for school integration and is considered as a major victory of the
civil rights movement.

The principal legal systems may also be classified as common law, civil
law, socialist, and Islamic systems. Common law is that system of law used in
the United States and Great Britain, which relies on precedents set by judges
to decide a case. In this classification, civil law refers to those legal systems
whose developments are based not on case law, but on the basic law found
in codes. The civil law systems’ development was influenced by the Corpus
Juris Civilis, which were a collection of Roman law codes. France is a civil
law system. France’s system is based on the civil code of France, which was
first enacted in 1804. One distinction between a common law system and
a civil law system is the role that precedents play in a case. For example, in
a case involving a criminal homicide, in the common law system the judge
would look to precedents for a definition of criminal homicide if the statute
is unclear. In a civil law system, the judge would look only to the codes for
the definition.
The source of socialist law is legislation, and the role of the court is
to apply it. In the Islamic system, law is integral to the religion. Islam
implies that the individual should submit to the will of God, and the rules
of conduct are based on divine command and revelation. The distinctions
between these systems and the basic concepts of each are discussed later
in the text.
16 Law and Society: An Introduction

REGINA V. DUDLEY AND STEPHENS

Dudley and Stephens were indicted for the murder of Richard Parker
on the high seas.27 At trial in Devon on November 7, 1884, the jury
found the following facts:28
On July 5, 1884, the prisoners, Dudley and Stephens, with one
Brooks, all able-bodied English seamen, and the deceased were the
crew of an English yacht. They were cast away in a storm on the high
seas 1,600 miles from the Cape of Good Hope, and were compelled to
put into an open boat belonging to the said yacht. There was no sup-
ply of water and no food except for two tins of turnips, and for 3 days
they had nothing else to subsist on. On the fourth day, they caught a
small turtle, upon which they subsisted for a few days, and this was
the only food they had up to the 20th day, when the act now in ques-
tion was committed. That on the 12th day the remains of the turtle
were entirely consumed, and for the next 8 days they had nothing to
eat. They had no fresh water, except such rain as they caught in their
oilskin capes. At the time, the boat was drifting on the ocean and was
probably 1,000 miles from land.
On the 18th day, when they had been without food for 7 days and
without water for 5, the prisoners spoke to Brooks and suggested that
someone should be sacrificed to save the rest. The boy, to whom they
were understood to refer, was not consulted. Brooks dissented. Dudley
proposed that lots should be cast who should be put to death to save the
rest, but Brooks refused to consent, and it was not put to the boy, and
in point of fact, there was no drawing of lots. On July 25, Dudley told
Brooks that he had better go and have a sleep. He then made signs to
Stephens that the boy had better be killed. Stephens agreed.
Dudley offered a prayer asking forgiveness for them all. Dudley then
went to the boy and put a knife to his throat and killed him. All three
fed upon the body for 4 days. On the fourth day, they were rescued by
a passing boat. If the three men had not fed upon the body of the boy,
they would probably not have survived to be picked up and rescued. The
boy, being in a weaker condition, was likely to have died before them.
Were the defendants guilty of murder? How would you rule?

Argument for the Crown (prosecutor)

The law is that when a private person acting on his own judgment takes
the life of a fellow creature, his act can only be justified as self-defense—
self-defense against the acts of the person whose life is taken. The pris-
oners were not protecting themselves from any acts of Parker. If he had
An Overview of Law and Society 17

had food and the prisoners had taken the food from him, they would
have been guilty of theft, and if they killed him to obtain this food, they
would have been guilty of murder.

Argument for the Prisoners (defense counsel)

This homicide is excusable through unavoidable necessity and upon the
great universal principle of self-preservation, which prompts every man
to save his own life in preference to that of another. The essence of the
crime of murder is intention, and here the intention of the prisoners was
only to preserve their life.

Judgment of the Court

There remains to be considered the real question in this case—whether
the killing under the circumstances set forth in the verdict be or be not
murder…. We are dealing with a case of private homicide not imposed
upon men in the service of their Sovereign and in the defense of their
country…. Though law and morality are not the same, and many things
may be immoral which are not necessarily illegal, yet the absolute
divorce of law from morality would be of fatal consequence; and such a
divorce would follow if the temptation to murder in this case were to be
held by law an absolute defense of it. It is not so. To preserve one’s life is
generally speaking a duty, but it may be the plainest and highest duty to
sacrifice it…. It is not correct, therefore, to say that there is any absolute
or unqualified necessity to preserve one’s life….
In this case, the weakest, the youngest, the most unresisting, was
chosen. Was it more necessary to kill him than one of the grown men?
The answer must be “NO.”
The court then proceeded to pass sentence of death upon the pris-
oners. The sentence was later commuted by the Crown to six months’
imprisonment.

Questions:
1. Do you agree with the court’s statement that there is no “absolute or
unqualified necessity to preserve one’s life”? Justify your answer.
2. Brooks did not take part in the killing, but fed on the boy. Should he
also be punished? Note that he did nothing to prevent the killing.
3. In a footnote attached to the opinion of the court, the judge stated
that his brother had proposed the following logic: “If the two accused
men were justified in killing Parker, then if not rescued in time, two
of three survivors would then be justified in killing the third, and
of the two who remained, the stronger would be justified in killing
the weaker, so that three men might be justifiably killed to give the
18 Law and Society: An Introduction

fourth a chance of surviving.” If you were the defense counsel in this

case, how would you rebut that argument?
4. If all four seamen, including the victim, had agreed and a lot was
drawn, would it still be murder to kill the individual who drew the
unlucky lot?
5. Do you agree with the Crown’s reduction of punishment to only 6
months’ confinement? What should have been the punishment in
this case?

Approaches to Law and Society

Sociological issues regarding law and society generally are framed in one
of two conceptions of society: consensus and conflict. The two conceptions
are also referred to as “society’s paradigms” and are discussed in the fol-
lowing sections. They are ideal types. There are elements of truth in each
paradigm.

Consensus Paradigm
The consensus approach sees society as a functionally integrated, relatively
stable social system held together by consensus of basic values. Under this
approach, the social order is considered as more or less stable, and individuals
can achieve their interests by cooperation. The consensus approach stresses
cohesion, solidarity, integration, cooperation, and the stability of society.
Society is united by a shared culture and by basic agreement on its funda-
mental values and norms. Social conflict is the result of struggles between
individuals and groups who do not have a sufficient understanding of their
common interests and basic interdependence. Law is seen as a neutral frame-
work for maintaining social integration.
Roscoe Pound contended that law in a heterogenous society like the
United States can best be understood as a social compromise with an
emphasis on social order and harmony. 29 He contended that the histori-
cal development of law indicates what the law has become—a means of
providing for the common good and the satisfaction of social wants.
According to Pound, law is a form of social change directed toward
achieving social harmony. He sees the purpose of law as maintaining
and ensuring the values and needs required within the social order.
The primary purpose of the law, according to him, is to control inter-
ests and maintain harmony and social integration. The law does this not
by imposing one group’s will on others, but by controlling, reconciling,
An Overview of Law and Society 19

and mediating the diverse and conflicting interests of individuals and

groups within society.
Harry Bredemeier sees the law as essentially a neutral agent that dis-
penses rewards and punishments without bias by supplementing informal
social controls with formal mechanisms for generating and sustaining
cooperation. 30 To him, law is a body of rules designed to maintain order
and stability. Talcott Parsons argues that the primary function of the
legal system is to maintain integrity and mitigate potential elements of
conflict. 31

Conflict Paradigm
The conflict paradigm takes the exact opposite approach. The conflict theo-
rists see the law as a weapon of the ruling class to maintain a status quo. The
conflict approach emphasizes the role of special-interest groups in society.
Many conflict theorists agree that social institutions were originally designed
to meet basic survival needs, but are now controlled by the power elite that
manipulates them expressly to maintain its own privileged position of wealth
and power.32 Richard Quinney contends that law is an expression of interest
and a device to control society. He states:

Law is made by men, representing special interests, who have the power to
translate their interests into public policy. Unlike the pluralistic conception of
politics, law does not represent a compromise of the diverse interest in society,
but supports some interests at the expense of others.33

William Chambliss, who embraces the conflict perspective of law, con-

tends that the power of economic and commercial interests to influence
legislation is illustrated by a historical analysis of vagrancy laws. He notes
that the vagrancy laws in England were established during a period when
there was a need for cheap labor by landowners and that the purpose of the
vagrancy laws was to force those who were able-bodied and unemployed
to work.34 Lawrence M. Friedman examined the vagrancy laws in the state
of Mississippi during the 1870s. He argues that those laws were designed
to force blacks to go back to work under conditions of virtual serfdom.35
Friedman also noted that other laws made it illegal for outsiders to “entice”
workers away from their jobs—by offering better jobs that would enable
black workers to “defraud” employers by quitting their work on white
farms. In practice, the law worked to keep the black farmhands chained to
white masters.
20 Law and Society: An Introduction

Rule of Law

In 1739, David Hume asked the following question:

Here are two persons who dispute for an estate; of whom one is rich, a fool, and
a bachelor; the other poor, a man of sense, and has a numerous family: the first
is my enemy; the second my friend. To whom should the estate be awarded?

To Hume, the moral decision would be to award the estate based on prin-
ciples of law without regard to any passions or particular motives. We have
established general rules that are unchangeable by spite or favor, and by par-
ticular views of private or public interest. By following this course of action,
we are adhering to the “rule of law,” not the “rule of man.”36
The concept of “rule of law” refers to the practice of a society of deciding
legal disputes based on the established legal principles and rules and not on
the passions or motives of individuals. For example, following the rule of law,
the judge in making the decision in answer to Hume’s question should decide
the issue based only on principles of law and not whether one person is more
worthy than the other.37
Eugen Ehrlich stated in 1912:

The principle that the courts must base their decisions exclusively upon the law
was never more important…. The sovereignty of the state in the field of law, which
is so significant for modern law, is based on the stability of the legal norms.38

Ehrlich argued that adhering to the “rule of law” in making legal decisions pro-
vides the stability to our society. Immanuel Kant noted that “the best Constitution
is that in which not Men but Laws exercise” the powers of the state.39
Jean Jacques Rousseau contended that the power of the state to make
laws originated from a social contract among members of the society. He
also advocated the necessity of following the “rule of law.” Rousseau opined:

From whatever side we approach our principle, we reach the same conclusion,
that the social compact sets up among the citizens an equality of such kind,
that they all bind themselves to observe the same conditions and should there-
fore all enjoy the same rights. Thus, from the very nature of the compact, every
act of Sovereignty, i.e., every authentic act of the general will, binds or favors
all the citizens equally; so that the Sovereign recognizes only the body of the
nation, and draws no distinctions between those of whom it is made up.40

As can be noted from these quotations, the concept of government by the

“rule of law” and not the “rule of man” has been discussed for several centu-
ries. How valid is the concept today?
An Overview of Law and Society 21

In December 1999, George Melloan, in discussing the central economic

lessons of the 20th century, augured that the rule of law must be sustained. He
stated that “nation-states have a role to play in maintaining a rule of law, insur-
ing national security and preserving the stability of money. But ultimately it is
the freedom offered each individual that creates economic wealth.”41
The concept of the rule of law applies to the government as well as the
private individual. Accordingly, the government must also abide by the law.
For example, Bruce Gilley, an Asian Wall Street Journal correspondent, noted
that Hong Kong will be both a litmus test and a challenge for China’s evolv-
ing sense of the rule of law. As a litmus test, it will provide further evidence
of whether Beijing is taking seriously the notion of a state subject to law.
And as a challenge, it will force lawyers and jurists in China to consider the
deficiencies of their own system as they watch with bemusement how their
own government is forced to play by the rules in legal dealings with Macau.42
Michael S. Horn, an international lawyer discussing an Indonesian presi-
dent who attempted to establish the concept of rule of law in his country,
stated that the tasks confronting a president and his cabinet are daunting.
Nowhere has the rule of law been established overnight. The rule of law
requires a government’s willingness to subordinate itself to law, sacrificing
flexibility and other powers in favor of a promise of certainty. He noted that
governments often do not like the results when they become subject to their
own laws, and the temptation is great to bend the rules at times.43
In 1997, the British government arrested Augusto Pinochet, the former
dictator of Chile, on a warrant from a Spanish magistrate who wanted him
extradited to Spain, where he would face trial for murder, torture, and other
“crimes against humanity.” A British court quashed (invalidated) the war-
rant on October 28, 1998. An English appellate court reinstated the warrant.
The warrant raises an interesting question regarding the rule of law.
Should Pinochet be punished for any murders or other atrocities that he
was proven to have ordered or permitted during the time he was ruler of the
country? If he violated the law, shouldn’t he be punished like any other citi-
zen? To allow him to go unpunished appears to establish a double standard.
Pinochet, like many former rulers in South America, surrendered his
power only after receiving assurances that he would not be punished for what
he and his regime had done. There is some question as to whether this is a
legal condition that a ruler may attach to an agreement to step down from
office. Will punishing him encourage other dictators to cling to power at all
costs if they might otherwise be snatched and tried by any country that can
get its hands on them? No head of state who has stepped down voluntarily
has ever been criminally sanctioned by another nation, particularly (as in
this case) over the objections of his own country.44 How would you rule on
the case? Would your answer be different if it was proven that he had ordered
22 Law and Society: An Introduction

the 1976 car bombing in Washington, DC, that killed Orlando Letelier and
Ronni Karpen Moffitt? How does the rule of law apply in this case?
In March 2000, the British home secretary released Pinochet and allowed
him to return to his home in Chile. The secretary stated that Pinochet was
too sick to be extradited to Spain to face charges of torture. Despite his
release, the case may have established new international law. The fact that he
was arrested, that four countries sought his extradition, and that his claim
of immunity was rejected may indicate a change in the way the world deals
with former dictators.45 Does the British action in allowing him to return to
Chile comply with the rule of law?

Summary

• In today’s society, law permeates all forms of our social behavior. The
law is everywhere with us and around us.
• Three approaches to law and society issues are discussed with the
ramifications associated with each approach.
• The study of law and society has never been more interesting and
important as it is today.
• The law is parochial in nature.
• The current pace of legal change is also unmatched in history. Yet,
often the law does not keep pace with social change.
• There are differences of opinion over what roles sociologists should
take when conducting research in law and society issues.
• The traditional approach is that sociologists should conduct their
research in a value-neutral and empirical fashion and then report
the findings in a similar manner.
• Others contend that sociologists should do more than merely
describe and explain social events. They contend that sociologists
should assert their rights to criticize and advance ways of rectifying
or redressing law and society problems.
• It is sometimes difficult to distinguish between the fields of law and
society and the sociology of law. There is no bright line separating
the two disciplines.
• Javier Trevino’s concept of the distinction between the two is that
sociology of law analyzes the relationship between law and society
from a sociological perspective, while law and society examines the
relationship from a broader point of view that includes the social sci-
ences as well as the humanities.
• Under that concept, sociology of law is a subset of law and society.
• Friedman describes law and society as a movement that involves
the efforts of legal sociologists and other scholars who study judicial
An Overview of Law and Society 23

behavior, historians who explore the role of nineteenth-century law-

yers, psychologists who seek to determine why juries behave the way
they do, and so on.
• The disciplines of law and sociology are both concerned with norms,
which are rules that prescribe the appropriate behavior for people in
given situations. Both are also concerned with the nature of legiti-
mate authority and conflict resolution. Law is more inclined toward
what happened in a specific case, rather than in general as is the situ-
ation in the social sciences.
• Law does not attempt to establish dramatic connections between
means and the ends, e.g., the impact of the verdict on the defendant’s
future conduct.
• The truth in law is normative and nonprobabilistic, e.g., a law is valid
or invalid or something happened or it did not happen. There is no
middle ground.
• The law is generally oriented toward the past or present and is rarely
concerned about the future.
• Legal consequences may be valid even if they did not occur. For exam-
ple, in a given fact situation involving an alleged theft, the element
“ownership of property” is valid even if that element is absent from
the fact situation and thus a required element of the crime is missing.
• Law is generally a win or lose process with little room for compro-
mise, e.g., the client either wins or loses the case. There is no middle
ground. This does not mean that there are not compromises in litiga-
tion, but only if the case goes to a judicial conclusion.
• Explaining exactly what is mean by the word law is difficult.
Definitions vary widely. Lawrence Friedman states that law is an
everyday word, part of our basic vocabulary. It is, however, a word
of many meanings, “as slippery as glass, as elusive as a soap bubble.”
Law, like legal system and legal process, is not a concrete object. It is
a concept, an abstraction, and a social construct.
• John Austin claimed that law may be defined without any reference
to its content. According to him, law is simply the command of the
sovereign, backed by appropriate sanctions.
• Roscoe Pound, a principal figure in sociological literature, stated
that law was a specialized form of social control that exerts pres-
sure on an individual “in order to constrain him or her to do his or
her part in upholding civilized society and to deter him or her from
anti-social conduct, that is, conduct at variance with the postulates
of social order.”
• Max Weber suggests that law is an order characterized by legitimacy.
He states that “an order will be called law if it is externally guaran-
teed by the probability that coercion (physical or psychological), to
24 Law and Society: An Introduction

bring about conformity or avenge the violation, will be applied by a

staff of people holding themselves especially ready for that purpose.”
• Even though customs are rules of conduct, they are not laws because
they do not have these three functions (external pressure involving
coercion or force exercised by law enforcement officials), and they
are generally observed without deliberation and “without thinking.”
• R. M. Dworkin looked at the “concept of law.” He claimed that law
exists in at least three different senses, each of which is problematic.
First, there is “law” as a distinct and complex type of social institu-
tion. Under this sense, we may consider that “law” is either one of
the proudest achievements of man, or that “law” is an instrument
through which the powerful oppress the weak, or that “law” is more
primitive in some societies than in others. Second, there is “law” as
a body of rules that are distinct from other types of rules in society.
Third, there is “law” as a particular source of rights, duties, and obli-
gations in relations with other individuals.
• Donald Black states that law is a governmental control system.
According to him, law is “normative life of a state and its citizens,
such as legislation, litigation, and adjudication.”
• Black contends that there are several styles of law that are observable in
every society. Each style of law corresponds to a style of social control.
• Former Supreme Court Justice Benjamin Cardozo defines law as “a
principle or rule of conduct so established as to justify a prediction
with reasonable certainty that it will be enforced by the courts if its
authority is challenged.”
• The role of the legal system is primarily social control. Everything
else is secondary. It has structure, e.g., courts, lawyers, lawmakers,
and police. It has substance, e.g., rules, norms, and behavior patterns
of people. It also has culture. The legal culture is the climate of social
thought and social force that determines how law is used, avoided,
or abused.
• The legal system is also an instrument of social engineering, e.g.,
restricting the right of tobacco companies from advertising in order
to reduce the number of individuals who smoke; requiring U.S. citi-
zens to pay federal taxes.
• The law enforces property rights, creates a monetary system, and
enforces contracts in its function of maintaining a framework of
order and thus provides social control. This does not mean that the
legal system is always maintaining the status quo. There are times
when the legal system does enforce change.
• The law is subjected to outside pressures. The pressures come from
special-interest groups, each advocating their special interest or belief.
An Overview of Law and Society 25

• In a pluralistic society like ours, it would be hard for law and moral-
ity to be identical. In almost all societies, however, there is a strong
relationship between law and morality.
• There are common classifications of legal rules (laws). One classifica-
tion is by content, i.e., substantive or procedural. A second classifica-
tion is criminal or civil. A third classification could be based on how
the rule was formulated, i.e., legislative, administrative, or judge-made.
• All legal rules may be classified as either substantive or procedural
according to their content. Substantive laws consist of rights, duties,
and prohibitions. They inform us which behaviors are permitted and
which are prohibited.
• A public law is one that is concerned with the structure of govern-
ment, the duties and powers of officials, and the relationship between
individuals and the government.
• Private laws are substantive and procedural laws are those that con-
cern the relationships between individuals. Private laws include the
law of torts, contracts, property rights, wills, inheritance, marriage
and dissolution of marriage, and adoption.
• Laws are also classified as to their manner of enactment: constitu-
tional, statutory, judge-made, executive orders, or administrative.
• Constitutional law is generally concerned with political organizations
and their powers. It also sets substantive and procedural limitations
on governments. Constitutional law by its very nature is a public law.
• A law that is created by a duly enacted statute is a statutory law.
Statutory law is also known as legislative law. Statutory law may
either be a public or private law.
• Judge-made law, also known as case law, is based on appellate court deci-
sions. Usually case law interprets constitutional and statutory provisions.
• Executive orders are regulations issued by the executive branch of
a government.
• Administrative law is that body of law created by administrative bodies.
• The principal legal systems may also be classified as common law,
civil law, socialist, and Islamic systems. Common law is that system
of law used in the United States and Great Britain, which relies on
precedents set by judges to decide a case.
• France has a civil law system. France’s system is based on the civil
code of France, which was first enacted in 1804.
• One distinction between a common law system and a civil law sys-
tem is the role that precedents play in a case.
• The source of socialist law is legislation, and the role of the court is
to apply it.
26 Law and Society: An Introduction

• In the Islamic system, law is integral to the religion. Islam implies

that the individual should submit to the will of God, and the rules of
conduct are based on divine command and revelation.
• Sociological issues regarding law and society generally are framed in
one of two conceptions of society: consensus and conflict. The two
conceptions are also referred to as “society’s paradigms.”
• The concept of rule of law refers to the practice of a society of decid-
ing legal disputes based on the established legal principles and rules
and not on the passions or motives of individuals.

Questions in Review
1. The traditional approach of sociologists in conducting research in
the area of law and society has been to carry it out in a value-neutral
and empirical fashion. What role should they take in rectifying or
redressing law and society problems?
2. It is difficult to distinguish between the fields of law and society and
sociology of law. How would you distinguish between the two?
3. The disciplines of law and sociology are both concerned with norms,
the nature of legitimate authority, and conflict resolution. How are
they different?
4. Defining what is meant by law is difficult. It is a word of many mean-
ings. How would you define it?
5. Both customs and conventions are rules of conduct. How do they
differ?
6. Donald Black lists four styles of social control that are represented in
law: penal, compensatory, therapeutic, and conciliatory. Define each
style.
7. Oliver Wendell Holmes defines law as “the prophecies of what the
courts will do in fact, and nothing more pretentious.” What are the
problems with this definition of law?
8. The role of the legal system is primarily for social control. How does
it achieve that role?
9. One of the dysfunctions of the legal system is that innocent individ-
uals are convicted of crime. How could the system rectify or reduce
the occurrence of this dysfunction?
10. There is a strong relationship between law and morality. Is this rela-
tionship too strong or not strong enough?
11. The two common value conceptions of society are consensus and
conflict. What are the basic tenets each?
12. The concept of rule of law refers to the practice of societies in decid-
ing legal disputes based on law and not on passions or particular
motives. Why is the rule of law important in society?
An Overview of Law and Society 27

Practicum
Assume you are the manager of a resort in Southern California. One of your
employees is required to “walk” the grounds at least once each hour. The
walking of the grounds is very difficult for the employee because she is obese.
She requests the use of the resort’s golf cart to cover the area.
How would you answer her request?
Consider the following facts:

• Case law: Three recent federal court decisions hold that obesity is a con-
dition (disability) under the Americans with Disabilities Act (ADA).
• Statutory law: The ADA requires employers to accommodate dis-
abled individuals as far as reasonably possible so that they can per-
form their jobs.
• Society: According to a 2012 report from the Centers for Disease
Control and Prevention, adult obesity has more than doubled in the
United States from 1970 to 2012. Researchers predict that by the year
2030, almost half of the people will be considered as obese.46

Endnotes
1. Adapted from E.A. Hoebel. (1954). The law of primitive man: A study of com-
parative legal dynamics (p. 292). Cambridge, MA: Harvard University Press.
2. A.J. Trevino. (1998). Nine law and society/sociology of law textbooks and read-
ers for the 1990s: A comparative review. Teaching Sociology, 26, 354–380.
3. D. Milovanovic. (1994). A primer in the sociology of law (2nd ed., pp. 5–6). New
York, NY: Harrow and Heston.
4. L. McIntyre. (1994). Law in sociological enterprise: A reconstruction (pp. 10–27).
Boulder, CO: Westview Press.
5. V. Aubert. (1973). Researches in the sociology of law. In M. Barkum (Ed.), Law
and the social system (pp. 50–53). New York, NY: Lieber-Atherton.
6. E. Schur. (1968). Law and society: A sociological view (p. 8). New York, NY:
Random House.
7. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 17). New
York, NY: Norton.
8. A. Flew. (1999). A dictionary of philosophy (2nd ed., p. 31). New York, NY:
Gramercy.
9. R. Pound. (1941). In my philosophy of law (p. 18). St. Paul, MN: West.
10. M. Weber. (1954). Law in economy and society (E. Shils & M. Rheinstein, Trans.,
p. 27). Cambridge, MA: Harvard University Press.
11. E.A. Hoebel. (1954). The law of primitive man: A study of comparative legal
dynamics. Cambridge, MA: Harvard University Press.
12. R.M. Dworkin. (1977). The philosophy of law (pp. 2–3). New York, NY: Oxford
University Press.
13. D. Black. (1976). The behavior of law (p. 2). New York, NY: Academic Press.
28 Law and Society: An Introduction

14. B. Cardozo. (1924). The growth of the law (p. 52). New Haven, CT: Yale
University.
15. O.W. Holmes. (1897, March). The path of law. Harvard Law Review, 1897(10),
457–461.
16. E.A. Hoebel. (1954). The law of primitive man: A study of comparative legal
dynamics. Cambridge, MA: Harvard University Press.
17. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 21). New
York, NY: Norton.
18. D. Milovanovic. (1994). A primer in the sociology of law (2nd ed., pp. 8–9). New
York, NY: Harrow and Heston.
19. H. Morgenthau. (1993). Politics among nations (revised by K.W. Thompson, p.
418). New York, NY: McGraw-Hill.
20. In the Matter of Baby M, 537 A.2d. 1227 (N.J. 1988).
21. R. Pound. (1914). Justice according to law. Columbia Law Review, 14(1), 12–13.
21a. Anatole France. (1894). Le Lys Rouge (The Red Lily). (Originally published in
France.) Reprinted 2010, Charleston, S.C.: Nabu Press.
22. D. Black. (1976). The behavior of law (p. 27). New York, NY: Academic Press.
23. Houston Chronicle. (1999, December 24). p. 9A, col. 1.
24. L.D. Wardle. (1980). The gap between law and moral order: An examination of
the legitimacy of the Supreme Court adoption decisions. BYU Law Rev., 1980,
811–835.
25. H.M. Hart, Jr. (1958). The aims of criminal law. Law and Contemporary
Problems, 1958(23), 401.
26. 347 U.S. 483 (1954).
27. Law Reports, Queen’s Division, Vol. 14. (1884–1885). pp. 273–288.
28. Note: The facts have been edited to reduce the length of the material and to
make the case more readable.
29. R. Pound. (1943, October). A survey of social interests. Harvard Law Review,
1943(57), 1–39.
30. H.C. Bredemeier. (1961). Law as an integrative mechanism. In W.J. Evan (Ed.),
Law and society: Exploratory essays (pp.73–90). New York, NY: Free Press.
31. T. Parsons. (1961). The law and social control. In W.J. Evan (Ed.), Law and society:
Exploratory essays (pp. 56–72). New York, NY: Free Press.
32. M. Useem. (1984). The inner circle: Large corporations and the rise of business
political activity in the U.S. and U.K. New York, NY: Oxford University Press.
33. R. Quinney. (1970). The social reality of crime (p. 35). Boston, MA: Little, Brown.
34. W.J. Chambliss. (1964). A sociological analysis of the law of vagrancy. Social
Problems, 12(1), 67–77.
35. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 299). New
York, NY: Norton.
36. The question has been edited to make it easier to read. Taken from David Hume,
A treatise of human nature, Vol. II, Book III “Of Morals,” Section VI “Some
Further Reflections Concerning Justice and Injustice.” Reprinted in C. Morris
(Ed.). (1959). The great legal philosophers: Selected readings in jurisprudence.
Philadelphia, PA: University of Pennsylvania Press. (Original work published
1740)
An Overview of Law and Society 29

37. One manuscript reviewer asked: “But, what if there was a statute saying that the
‘more worthy’ should receive any property in dispute?” This would raise serious
questions regarding the “due process” rights involved in the statute.
38. E. Ehrlich. (1959). Fundamental principles of the sociology of law: Part IV, Social
and state sanctions of norms. Reprinted in C. Morris (Ed.), The great legal phi-
losophers: Selected readings in jurisprudence. Philadelphia, PA: University of
Pennsylvania Press. (Original work published 1913)
39. I. Kant. (1791). The Philosophy of Law: An exposition of the fundamental prin-
ciples of jurisprudence as the science of right (W. Hastie, Trans.). Edinburgh,
Scotland: T.&T.
40. J.J. Rousseau. (1959). The social contract, Book II, Chapter IV. Reprinted in C.
Morris (Ed.). The great legal philosophers: Selected readings in jurisprudence.
Philadelphia, PA: University of Pennsylvania Press. (Original work published
1762)
41. G. Melloan. (1999, December 28). Global view: The central economic lesson of
this century. The Wall Street Journal Interactive Edition.
42. B. Gilley. (1999, December 16). Macau and the future of China. Dow Jones
Newswires.
43. M.S. Horn. (1999, December 15). International commentary: Indonesia needs a
Magna Carta. Wall Street Journal Interactive Edition.
44. S. Taylor, Jr. (1998, November 9). Bad effects of feel-good laws. Texas Lawyer.
45. A. MacLeod. (2000, March 3). Pinochet goes free, but sets a precedent. Christian
Science Monitor, p. 1.
46. L. Jones. (2012, October 1). Legal issues involving obesity and the ADA. The
National Law Journal, 2012, 4.
Legal Systems
2
Chapter Objectives

After studying this chapter, you should be able to

• Explain the difference between common law and statutory law

• Discuss what constitutes common law
• Differentiate between civil law and common law systems
• Discuss the theoretical aspects of the U.S. legal system
• Identify the pioneers and contemporary legal theorists
• Explain the difference between “natural law” and “positivism”
• Discuss how judges make law

Common-Law Systems

In this chapter, the major legal systems and legal theory are explored. The
theoretical aspects of our law are also examined. The chapter also includes a
discussion on both pioneer and contemporary theorists.
Common law is considered as judge-made law because it developed out of
decisions made in prior cases that were adopted as precedent. The name “com-
mon law” comes from the idea that English medieval law, as administered
by the courts of the realm, reflected the “common” customs of the kingdom.
Whereas civil-law judges resolve disputes by referring to statutory principles
arrived at in advance, common-law judges focus more intently on the facts of
the particular case to arrive at a fair and equitable result for the litigants.
The three major nations whose law is based on common law are the
United States, Canada, and England. The common-law system was origi-
nated in England after the Norman Conquest. It is used in English-speaking
countries except Scotland and South Africa.1 Colonial expansion transferred
the common-law systems to those Third World countries formerly controlled
by England. In some of the countries, like those with Muslim populations
and India, the adoption of the common-law system was not complete. In
those countries, portions of the system exist along with the traditional forms
of their own legal systems.

31
32 Law and Society: An Introduction

At the time of the Norman Conquest there was no uniform criminal law in
England. Individual courts were dominated by sheriffs who enforced village
rules as they saw fit. To reduce the arbitrary aspects of the law, William the
Conqueror decreed that all prosecutions should be conducted in the name of
the king. This practice exists today in criminal-law cases, where all criminal
cases are conducted in the name of the state, people, or commonwealth.
By the 1600s, the primary law of England was based on the mandatory
rules of conduct laid down by the judges. The rules became the common law
of England. Prior decisions were accepted as authoritative precepts and were
applied to future cases. When the English settlers came to America in the
1600s, they brought with them the English common law.
The legal system in the United States is presently a complex blend of com-
mon and statute law. When the first English colonists came to America in the
17th century, they brought English customs with them, but there was little
expertise in law. Colonial charters, or agreements with England, gave the colo-
nists the Englishmen’s traditional rights that had developed as part of the com-
mon law. But there were few men trained in the law, few judges, and no schools
of law. Local jurisdictions passed their own statutes to meet specific situations.
During the American Revolution, there was hostility toward the English
in America. This hostility extended to the common-law system. Most of the
new states enacted new statutes that defined duties and responsibilities in
the legal area. The statutes, however, were basically a restatement of English
common law. All states, except Louisiana, can trace their legal systems to the
English common-law system. Louisiana, whose system was originally based
on the French and Spanish code law concepts, officially adopted common law
as the basis for their system in 1805.
One of the basic principles of common law is the doctrine of judicial review.
This doctrine provides courts with the authority to review all statutory enact-
ments, judicial decisions of lower courts, and administrative determinations
within their jurisdiction. This common-law principle was formally recognized
by the U.S. Supreme Court in the famous case of Marbury v. Madison.2 In that
case, Chief Justice John Marshall held that it was the duty of the courts to deter-
mine what the law is and that when the courts apply a rule or statute to a particu-
lar case, they must of necessity expound and interpret that rule or statute. If two
laws conflict, the courts must decide on the operation and scope of each.
At the time that Chief Justice Marshall made the decision, President
Thomas Jefferson objected to the concept of judicial review. In an 1820 letter,
Jefferson stated: “To consider the judges as the ultimate arbiters of all con-
stitutional questions is a dangerous doctrine … and one which would place
us under the despotism of an oligarchy.” Jefferson correctly pointed out that
the concept of judicial review is not contained in our federal constitution.
Despite Jefferson’s fears, every state’s highest court in the United States has
accepted the principles set forth in Marbury v. Madison.
Legal Systems 33

MARBURY V. MADISON (1803)

The Marbury v. Madison case is generally considered to be the most
important early U.S. Supreme Court decision and the leading authority
for the concept that the Court has the power and duty to strike down
acts of Congress that violate the Constitution. In the first years of our
republic, the powers and role of the courts were unsettled. They are
treated only briefly in the Constitution itself. It was in the Marbury
case that the power of judicial review was first used.3 Chief Justice
John Marshall opined that an act of Congress conflicted with the
Constitution. His critics attacked his decision as a naked assertion of
power, and one that was not justified by the Constitution.
In the presidential election of 1800, Thomas Jefferson defeated the
incumbent president John Adams. The election campaign was bitter.
At that time, the new president did not take office until March 3, 1801.
Two weeks before Jefferson was inaugurated, the Federalist-dominated
Congress adopted and then President Adams signed two statutes. The
first statute was the Judiciary Act of 1801, which created a number of
new federal judgeships, which Adams quickly filled. The second created
a government for the newly created District of Columbia. The second
one also empowered the president to appoint justices of the peace for
the new city.
Just before leaving office, Adams appointed William Marbury to
one of the new justice of the peace positions. He was confirmed by the
Senate, but the commissions were not delivered by the secretary of state
to Marbury and three other appointees. When Jefferson took office, the
new secretary of state was James Madison. Madison asked the outgoing
secretary for the commissions. He refused to give them to Madison.
Marbury and the others then turned to the Supreme Court, asking it to
issue a writ ordering Madison to turn over the commissions.
When the Court met, Madison ignored the Court’s order to appear.
While Marshall believed that Marbury and others deserved the com-
missions, he believed that Madison would ignore any order to turn
over the commissions from the Supreme Court. This action would
humiliate the Court. Marshall’s decision was a brilliant legal opin-
ion. First, he criticized Madison (and therefore Jefferson). Next, he
avoided a confrontation with Madison by not ordering Madison to do
anything. Finally, he established the power of the Court to declare a
law of Congress unconstitutional. Marshall concluded that withhold-
ing the commission violated Marbury’s rights. He implicitly criticized
Madison and Jefferson by stating that even King George III of England
34 Law and Society: An Introduction

never fails to comply with a judgment of his court. Then he concluded

that the Judiciary Act of 1789, which authorized the Supreme Court
to issues certain writs, was unconstitutional, since that power was not
specified in Article III, Section 2 of the Constitution and that Marbury
must pursue this matter in the lower courts.

As judicial decisions accumulate on a particular kind of dispute, gen-

eral rules or precedents emerge and become guidelines for judges deciding
similar cases in the future. Subsequent cases, however, may reveal new and
different facts and considerations, such as changing social or technologi-
cal conditions.
In the common-law system, a pyramidal structure of courts exists to
define and refine the law. At the base of the pyramid are trial courts. Above
the trial courts, layers of appellate courts, composed entirely of judges, exist
to adjudicate disputes. These disputes center on whether or not the trial judge
applied the correct principles of law. The interpretations of law made by appel-
late courts form the precedents that govern future cases. Furthermore, the
importance of a precedent for any given court depends on that court’s position
in the pyramidal structure; for example, a precedent set by an appellate court
has greater force in trial courts than in other similar level appellate courts.
If a common-law judge feels that the facts are sufficiently different from
prior cases and there is no binding precedent, then the judge is free to depart
from precedent and establish a new rule of decision This new decision sets
a new precedent, as it is accepted and used by different judges in other
cases. In this manner, common law retains a dynamic for change. As the
U.S. Supreme Court Justice Oliver Wendell Holmes wrote in his book, The
Common Law (1881): “The life of the [common] law has not been logic; it has
been experience.”

THE TRIAL OF WILLIAM PENN

William Penn, a Quaker, was a colonial hero of American liberty.
During the latter part of the 17th century, the Protestants perse-
cuted the Catholics and the Catholics persecuted Protestants. Both
Protestants and Catholics attacked the Quakers and Jews. It was dur-
ing this period that Penn established an American sanctuary that pro-
tected freedom of conscience. Almost everywhere else, colonists stole
land from the American Indians, but Penn traveled unarmed among
the American Indians and negotiated peaceful purchases. He insisted
that women deserved equal rights with men. He gave Pennsylvania a
Legal Systems 35

written constitution that limited the power of government, provided

a humane penal code, and guaranteed many fundamental liberties. In
1670, William Penn held a worship service in a quiet street that was
attended by a peaceful group of Quakers. Penn and another Quaker,
William Mead, were arrested on a charge of disturbing the king’s peace
and summoned to stand trial. As the two men entered the courtroom, a
bailiff ordered them to place their hats, which they had removed, back
on their heads. When they complied, they were called forward and held
in contempt of court for being in the courtroom with their hats on.4
Excerpts from the record of trial:
William Penn to Judge: I desire you would let be known by what law
is it you prosecute me, and upon what law you ground my
indictment.
Judge: Upon the common law.
Penn: Where is that common law?
Judge: You may not think that I am able to run up so many years, and
over so many adjudged cases, which we call common law, to
answer your curiosity.
Penn: This answer I am sure is very short of my question, for if it be
common, it should not be so hard to produce.
Judge: The question is, whether you are guilty of this indictment?
Penn: The question is not, whether I am guilty of this indictment, but
whether this indictment is legal. It is too general and imper-
fect an answer to state that it is the common law, unless we
knew both where and what it is. For where there is no law,
there is no transgression and that law which is not in being, is
so far from being common, that it is no law at all.
Judge: You are impertinent, will you teach the court what the law is?
It is Lex non scripta, that which many have studied 30 or 40
years to know, and would you have me tell you in a moment?
Penn: Certainly, if the common law be so hard to understand it is far
from being common.5

Civil-Law Systems

From its origins in continental Europe, the civil law has spread to areas
in Africa, Asia, and Latin America that were colonies of France, THe
Netherlands, Belgium, Spain, or Portugal. When they gained independence,
most of the former colonies continued the civil-law orientation of their legal
systems. Civil-law systems were also voluntarily adopted in South Korea,
36 Law and Society: An Introduction

Taiwan, Thailand, and Turkey. Today, civil law is used in most nations in
Europe and Latin America, as well as in some countries in Asia and Africa.
Japan has mostly a civil-law system with a mixture of common law in the
area of criminal procedure. The common-law influence in Japan was caused
by the American occupation following World War II. Until 2011, Mexico
used a Spanish civil-law system. In 2011, Mexico started its transition to the
common-law system.
The term civil law is derived from the ancient Roman term ius civile,
meaning law, which was used to distinguish the proper or ancient law of the
city of Rome from the laws applying to the people of the Roman Empire. The
civil-law systems are also referred to as Romano-Germanic law. The system
started in ancient Rome. The principles of Roman law were based on legisla-
tion and on the works of legal scholars who were routinely asked for their
opinions by judicial officers when confronting difficult legal questions. In
the 6th century, Roman Emperor Justinian ordered that all sources of law be
collected and consolidated. The consolidated law became the Corpus Juris
Civilis (Body of Civil Law), also called the Justinian Code.
The Justinian Code was essentially limited to the eastern half of the
Roman Empire; the western half had already been overrun by Germanic
invaders. From the 5th to the 10th century, Europe was in a cultural decline,
and no significant developments occurred in civil law. In the second half
of the 11th century, the Corpus Juris was rediscovered in Italy. At the same
time, the study of academic law was instituted at the University of Bologna,
where professors based their legal teaching on the Corpus Juris. Soon other
European universities followed, and the Corpus Juris became an important
part in the development of Continental Law until relatively modern times.
Other references included Canon law and the customs of merchants. Based
on these references, a body of written transnational law (known as jus com-
mune) was developed by academic legal scholarship, with which lawyers
and judges throughout continental Europe were familiar. Eventually, local
statutes and numerous local customs, often of Germanic origin, were also
committed to writing. In the frequent cases in which these local statutes
and local customs did not furnish an answer, however, courts and lawyers
tended to be guided by the transnational jus commune.
During the 17th and 18th centuries, the authority of the Corpus Juris
began to decline as its rules were reexamined in the light of reason. Several
attempts were made to develop a systematic and comprehensive codification
of modern civil law. France, under the guidance of Napoleon, adopted the
Code of Napoleon in 1804. With revisions, it still remains in force and has
been a major influence in the legal systems of most European countries and
in Latin America. The Code of Napoleon was made necessary by the diver-
sity and confusion of laws that had developed in France and other parts of
Europe during the Middle Ages and early modern period. The premise for
Legal Systems 37

the code was the idea that, for the first time in history, a law based purely on
common sense should be created, free of all past prejudices and inequities.
Under the code, all citizens were recognized as equal, and all class privileges
were done away with.
France’s efforts in addition to the Code Napoléon were the Commercial
Code (1808), the Penal Code (1811), the Code of Civil Procedure (1807), and
the Code of Criminal Procedure (1811). The influence of the Napoleonic code
was somewhat diminished at the start of the 20th century by the introduc-
tion of the German Civil Code in 1900 and the Swiss Civil Code in 1912.
Japan adopted the German code and Turkey, the Swiss code.
Codification of the civil law had several major consequences:

1. The codes constituted comprehensive and authoritative legal texts

that superseded all earlier authorities in the teaching of law as well
as in legal practice.
2. In each nation, the codes brought about a national unification of
the law. The unification, along with systematization and reform,
enhanced the certainty and predictability of the law.
3. In substance, the codes differed from one nation to another, thus
marking a shift from the transnational jus commune to sepa-
rate national legal systems. In recent years, there have been vigor-
ous efforts by the nations of the European Union and elsewhere to
replace certain isolated national laws with uniform legal practices.

While the codes of civil law and court procedures vary widely, in general
they are distinguished from common law in several significant ways. In civil
law, judicial interpretations are based primarily on this system of codified
written law, rather than on the rule of precedent that is emphasized in the
common law. The law of evidence, so important in common-law countries,
has no counterpart in the civil law. Civil law separates public and private law.
Generally, public-law disputes are determined by a hierarchy of administra-
tive courts, which are separate from the ordinary courts that have jurisdic-
tion over private-law disputes and criminal cases. In common-law countries,
private- and public-law disputes usually are determined by the same courts.
Trial by jury, an important feature of the common-law system, is not
often used in the civil law. A jury is never employed in the determination of
civil procedures. In some civil-law countries, laypersons participate in the
adjudication of criminal cases; generally, however, these laypersons do not
sit as jurors but act as judges who, together with professional judges, decide
on the innocence or guilt of the accused and on the sentence to be imposed.
The civil-law systems go further in implementing the principle of freedom of
contract, by specifically upholding almost all contractual promises and by
enforcing penalty clauses. Freedom to dispose property by wills and trusts
38 Law and Society: An Introduction

is more restricted in civil-law nations, where the testator’s children and any
surviving spouse receive a certain portion of a parent’s estate regardless of
the provisions of a will or trust.
Despite differences in methods, similarity is found in the ultimate results
reached by both civil- and common-law systems. The present trend is toward
a closer relationship between the common law and the civil law.

Islamic

The word Islam literally means to surrender to the will of God. The Islamic
legal system, rather than being independent, is an integral part of the Islamic
religion. Islamic law is derived from four principal sources: the Koran, the
Sunna, judicial consensus, and analogical reasoning. The Koran is considered
as the word of God as given to the Prophet. The Sunna includes the sayings,
acts, and allowances of the Prophet as they are recorded in the Hadith. The
judicial consensus is based on the historical consensus of legal precedents
and acts as limitations on individual judges. Analogical reasoning is used by
the judges for circumstances not provided for in the other sources.
The sanctions attached for violations of Islamic law are religious rather
than civil. Islamic law is based on religious and philosophical principles
that are alien to most of the non-Islamic world.6 To understand Islamic law,
one needs to have a basic knowledge of the Islamic religion and civilization.
Accordingly, errors may result when individually analyzing elements of
Islamic law.

Socialist

Many scholars point out that there are elements of civil-law tradition in the
socialist legal system. Others contend that there is not a separate legal family
of socialist law. There are also differences among the socialist countries.
Socialist law is based on legislation, and in Communist countries legis-
lation is an expression of the Communist Party. The socialist system can be
traced to the 1917 Bolshevik Revolution. Two years after the revolution, a state-
ment of principles was adopted to guide the administrative of justice in the
Russian Soviet Federative Socialist Republic. The statement said that the prole-
tariat should not adopt the ready-made bourgeois state machinery, but should
instead abolish it and create its own system of justice. However, Lenin and the
other leaders of the 1917 revolution did not have a precise pattern for a legal
system. The statement established a framework for the new society. It deprived
individuals of the ownership of land, banks, insurance companies, shipping
Legal Systems 39

fleets, and large-scale industry; created restrictions on the employment of

labor; and removed marriage and divorce from the sphere of church activities.
In 1922 and 1923, codes were developed in the Soviet Union to be used
in the courts in criminal, civil, family, land, and labor matters. In principle,
the legislature was to be the only source of law, but in practice it was the pre-
sidium, a smaller body elected from the membership of the legislature, that
has made the laws and day-to-day changes in it. Ratification by the whole
legislature was, according to the Soviet constitution, deemed necessary, but,
in actuality, altering presidium action became impossible.
In theory, the orders and decisions of the Communist Party were not a
source of law. But, in fact, the party provided the initiative for most legisla-
tive action, especially in economic planning. The wishes of the party were
followed because the party’s secretary was normally the real ruler of the
nation. Joseph Stalin, for example, was party secretary for the entire time he
ruled the Soviet Union.
Soviet law has always reflected the strong presence of the state in the lives of
the people. The law covered virtually every activity in which the state and its cit-
izens were engaged. There were extensive regulations concerning the ownership
and management of property. Central to these regulations was the provision
that the state owns and operates all the means of production. The state managed
economic planning, social insurance, artistic creation, and family relationships.
A court system was established by the judiciary act of October 31, 1922.
At the local level, there were people’s courts with a full-time judge and two
lay judges. The lay judges were selected for a few days of service from a panel
of local citizens. Appeals from the people’s courts went to provincial courts,
which also had original jurisdiction in certain security, criminal, and civil
cases. At the top of the legal system was the supreme court of the Soviet
Union. It heard cases on appeal from the provincial courts, but it was also
responsible for disciplining the lower courts, issuing rulings to interpret the
legal codes, and trying cases of a significant nature to the state. There was no
separation of powers between the executive, legislative, and judicial branches
of the government, and the courts were subject to legislative oversight.
Law in the Soviet Union changed in the early 1990s as a result of reforms
initiated by President Mikhail Gorbachev and the breakup of the Soviet
Union in 1991. The traditional view of law as an instrument of the state to
further the aims of Communist ideology was discarded, and ultimately the
Soviet Union itself ceased to exist.

American Indian Law

The American Indian nations in the United States are accorded the status
of “domestic dependent nations,” and the federal government is committed
40 Law and Society: An Introduction

to operating with them on the basis of government-to-government status.7

This status as “domestic dependent nations” was first recognized by the U.S.
Supreme Court in 1831.8 The Supreme Court held that our Constitution rec-
ognizes Indian sovereignty by classing Indian treaties among the “supreme
laws of the land” and establishes Indian affairs as a unique area of federal
concern. The Court noted that in the early Indian treaties, the United States
had pledged to “protect” Indian nations and that the treaties had established
federal trust responsibility in our government-to-government relations with
Indian nations. In addition, federal law provides that no obligation estab-
lished by any treaty lawfully made and ratified prior to March 3, 1871, shall
be impaired.9
For purposes of determining the status of Indian legal rights, “Indian nation”
means any tribe, band, or other group of Indians subject to the jurisdiction
of the United States and recognized as possessing powers of self-government.
“Powers of self-government” means and includes all governmental powers pos-
sessed by an Indian nation—executive, legislative, and judicial—and all offices,
bodies, and tribunals by and through which they are executed, including Indian
offenses, and means the inherent power of Indian nations, hereby recognized
and affirmed, to exercise criminal jurisdiction over all Indians.10

Theories of Law

There is no single, widely accepted, comprehensive theory of law and society.

The field is complex and polemical. The theories overlap, and theories that
are placed under one heading will contain many elements similar to those
placed under another heading. The theories discussed in this chapter were
grouped as a device to facilitate discussion rather than to reflect any definite
status of the theories discussed. In studying theory, we should keep in mind
that in modern societies there is a wide gap between what we understand to
be right and what is legally required of us. This point will be discussed later
in this chapter with the “bad man” example. In addition, the law is often at
odds with our personal and subcultural values and morality. For example, it
would be against our values to willingly allow a child to starve to death, but
in most cases there is no legal duty to save a stranger’s child. Two concepts
are apparent when looking at the growth of legal theory. First, we cannot
adequately study the development of legal theory in the terms of any one
moral or ethical view. Second, we must analyze law in a broader context than
our own.
In studying law as it develops when a society goes through moderniza-
tion and social development, two issues are apparent. First, why do changes
take place? And second, what are the forces that produce or hinder change in
our laws and our legal systems? The answers to these two questions depend to
Legal Systems 41

a great extent on our definition of the conceptual basis of law. The two most
popular conceptual bases are natural law and positivism. Natural law refers
to the concept that there are universal principles that we need to discover and
codify into the law—the law is there waiting to be discovered. Positivism is
based on the concept that neither law nor the legal system has any natural
connection with morality—laws and legal systems are created by humans.
Natural law is considered to be a general body of rules of right conduct
and justice common to all mankind. This concept grew from the observa-
tion of the operation of the laws of nature and their uniformity. Positive
law, on the other hand, consists of regulations formulated by the heads of a
country or society. In many cases, natural-law concepts agree with positive
laws that have to be enacted by governments. The prohibition against killing,
for example, is common to virtually all of mankind, and most nations have
enacted laws against it. The antikilling law could be considered as one with
both positive and natural law influence.

Natural Law
As noted earlier, the concept of natural law is based on the assumption that,
through reason, the nature of individuals can be discovered and that this knowl-
edge will provide the basis for the social and legal ordering of human existence.
Jean Dabin stated that natural law “consists in certain principles of right reason,
which causes us to know that an action is morally honest or dishonest accord-
ing to its necessary agreement or disagreement with a rational and sociable
nature.”11 The concept of natural law is present in the writings of ancient Greece.
For example, Aristotle maintained that natural law has universal validity, is free
of passion, and does not depend on whether we accept it or not.12
The position that we now accept as natural law had its first extended
explication in the writing of Cicero (106–43 B.C.). Cicero was concerned with
trying to explain the nature of law in relation to morality. He saw law and
morality as one. To him, law was the product of the gods. He contended that
law is the highest reason, implanted in nature, which commands what ought
to be done and forbids the opposite. Law is intelligence, whose natural func-
tion it is to command right conduct and forbid wrongdoing. Accordingly, law
was not a product of human action; instead it was the product of God.13 Cicero
also contended that compliance with the moral principles was sufficient for
law and that all natural moral requirements are also legal requirements.
The great English legal commentator, William Blackstone (1723–1780),
maintained that human laws are but realizations of God’s law, the moral
laws of nature. Accordingly, rules that look like laws and act like laws, but in
fact contradict God’s law, are simply not laws at all.14 Blackstone considered
that laws existed in nature and not exclusively in the books labeled “Laws of
England.” Later in life, Blackstone appeared to be quite willing to recognize
42 Law and Society: An Introduction

a distinction between human laws, laws that were laws even if immoral, and
natural laws. Blackstone has traditionally been identified with two of the cen-
tral positions in natural-law tradition. One position is the idea of morality as
a necessary criterion for the existence of valid law. The other is the idea that
human law is the realization of higher moral law, such that the higher but
unwritten moral law is just as much law as that which happened to be enacted
by legislatures or decided by judges. For example, murder would be unlawful
even if there was no statute prohibiting it.15

SIR WILLIAM BLACKSTONE (1723–1780)

Blackstone’s four-volume Commentaries on the Laws of England made
Sir William Blackstone the best-known of English and American writ-
ers on the law. For many years after his death, his books served as text-
books for the teaching of law both in England and in America. Jurists
of many countries cite the Commentaries as a source for some of their
rulings. Although all four volumes of the Commentaries appeared in
the 1760s, they remain today one of the best general histories of English
law.
Blackstone was born in London in 1723. His father died before his
birth, and his mother died before he was 12. He was raised by an older
brother. He entered Oxford University at age 18. When he first started
studying law, he wrote the famous poem “The Lawyer’s Farewell to His
Muse.” He was admitted to the bar in 1746.
At first, Blackstone was not very successful in the practice of law. He
returned to Oxford as bursar of a college. His first work on jurispru-
dence appeared in 1750. At that time, Oxford had no courses on law.
In 1758, Blackstone was appointed as Oxford’s first professor of com-
mon law. His lectures attracted wide attention, and he again entered
the practice of law. He was later elected to Parliament. In 1763 he was
appointed solicitor general to the queen. He resigned his professorship
at Oxford in 1766.
In 1765, the first volume of his Commentaries was published. The
last volume was published in 1769. The Commentaries were an immedi-
ate and popular success. Eight editions were printed in his remaining
11 years of life. In the 1770s he was appointed a judge and knighted.
Blackstone had nine children. He died February 14, 1780.

Saint Thomas Aquinas’s (1225–1274) writings on natural law were more

extensive and more sophisticated than those of Cicero and Blackstone. Today,
there is a tendency to associate the concept of natural law with Aquinas.
Legal Systems 43

While the concept of natural law does not have a necessary connection with
Catholicism or with religion in a formal sense, Aquinas’s concept of natu-
ral law became the central thesis of Catholic theology. He saw a distinction
between higher law and human law and appreciated the distinction between
moral soundness and legal validity.
According to Aquinas, law is nothing but an ordinance of reason for the
common good, promulgated by him who has the care of the community. That
natural law is promulgated by the very fact that God instilled it into individu-
als’ minds so as to be known by the individual. He contended that the first
principle in practical reason is the one founded on the nature of the good, i.e.,
good is that which all things seek after. The first precept of law is based on this
principle, and all laws should seek the good and avoid the evil. Every human
law has just so much of the nature of law as it is derived from the law of nature.
If at any point it departs from the law of nature, it is no longer a law but a per-
version of law. Laws framed by individuals are either just or unjust. If they be
just, they have the power of binding the conscience from the eternal law from
which they are derived. Law may be unjust in two ways. First, a law is unjust
when it is contrary to human good. Second, a law is unjust when it is contrary
to the divine good. Laws that are contrary to the divine good must in no way
be observed because “we should obey God rather than man.”16

Legal Positivism
Legal positivism has the basic premise that neither laws nor legal systems have
any natural or essential connections with morality. Laws and legal systems
are posited (put in place) by human beings, thus the name “positivism.” A
central theme of positivism is that what legal systems ought to be or ought to
do is not the same as what legal systems in fact are. They contend that some-
thing can be a legal system while still falling far short, morally, of what a legal
system ought to be. Accordingly, there is no necessary connection between
law and morality. For example, Nazi Germany had a legal system despite the
fact that the system contained laws that were immoral. For the most part,
positivists analyze law by studying the independent effects of objective social
conditions, such as social organization and culture, on legal concepts. They
look at changing social conditions as causes for changes in law.

European Pioneer Theorists

Baron de Montesquieu (Charles Louis de Secondat 1689–1755)

When Charles Louis de Secondat was christened in 1689 as the second son
of the well-to-do de Secondats, a beggar was chosen from the crowd to be
44 Law and Society: An Introduction

his godfather. His parents did this so that he would always look at the poor
as his brothers.17 His mother died when he was 11. He attended college at
Oration in southwestern France. At the age of 24, when his father died, his
uncle became his guardian. Not that he needed a guardian, but this was
a method to allow his uncle, the Baron de Montesquieu, who was with-
out heir, to pass his land and title to his nephew. When his uncle died, he
became the baron.
His most influential work was The Spirit of Law, which he completed in
1748. According to him, laws, in their most general signification, are the nec-
essary relations arising from the nature of things. All beings have their laws.
That law in general is human reason, inasmuch as it governs all individu-
als. Montesquieu considered that law was integral to its particular culture.
He attacked the natural law’s assumptions and contended that laws were
the results of societal factors such as customs, physical environment, and
antecedents. He argued that law should be considered in relation to its back-
ground, its antecedents, and its surroundings. According to him, laws were
relative and that there were no good or bad laws.

Herbert Spencer (1820–1903)

Spencer rejected the doctrines of natural law that were popular in 19th-
century England. He was strongly influenced by Charles Darwin. According
to Spencer, the natural selection and survival of the fittest were the deter-
mining factors involved in the evolution of civilization and law. The evo-
lution of society for Spencer was the growing differentiation between
individuals in the society and the increasing division of labor. According
to Spencer, the only function of government was as that of an overseer who
guards the safety of private property and sees that peace is not breached. He
argued that society does not need supervision and that maximum freedom
of individual action should be promoted by law.18 To him, any attempts
by the government to achieve greater social and economic equality among
individuals were ill-advised and unnatural. His laissez-faire doctrines are
still present in many political conservative attitudes in the United States.

Sir Henry Sumner Maine (1822–1888)

Sir Henry Sumner Maine founded the English historical school of law. To
him, legal history reflected patterns of evolution that recur in different soci-
eties and in similar historical circumstances. Maine contended that there
was only a limited number of possibilities for building and managing soci-
eties, and therefore legal forms reappear in seemingly different garb. He
noted that many of the legal rules and legal institutions that were present in
Roman feudalism were very similar to those noted in English feudalism. In
Legal Systems 45

his classical treatise, Ancient Law, Maine contended that the “movement of
the progressive societies has hitherto been a movement from status to con-
tract.” Status referred to a fixed condition in which the individual is with-
out will and without opportunity. As the societies evolve or progress, they
move away from a system of status to a social system based on contracts.
To Maine, legal relations were not based on one’s birth, but depended on
voluntary agreements.19

Interrelationship between Society and Law

What is the primary source of law? Is it the will of the people or of those
in power? The next three theorists—Karl Marx, Max Weber, and Emile
Durkheim—look at these issues. While their approaches are different, all
three discussed the essential interrelationships between legal institutions
and the social order.

Karl Marx (1818–1883)

Karl Marx was a philosopher, economist, historian, and sociologist. His
ideology may have caused more social change than any other person in the
modern world. Marx saw law as a form of class rule. Marx stated that every
society rests on an economic foundation—the mode of production of com-
modities. Marx opined that this was true for every society, regardless of its
stage of historical development. The mode of production has two essential
elements: the physical or technological arrangement of economic activity
and the social relations of production. The social relations of production
referred to the indispensable human attachments that people must form with
one another when engaged in economic activity. He saw the determinant
variable as the mode of production and that changes in this variable produce
changes in the way in which groups are attached to production technology.
His theory of law had three principal assumptions:

1. Law is a product of evolving economic forces.

2. Law is a tool used by the ruling class to maintain its power over the
lower classes.
3. In the future (communist society), law as an instrument of social
control will disappear.

To Marx, there would be no need for law in the final stages of societal devel-
opment when societies become stateless.
46 Law and Society: An Introduction

Max Weber (1864–1920)

Max Weber was a German lawyer and sociologist. Weber is considered by
many as the most important historical figure in the development of the soci-
ology of law.20 He was trained as a lawyer. Both Marx and Weber saw law as
an important source of meaning that enables people to interact with oth-
ers in economic and political life along rational and predictable lines.21 Both
considered the widening scope of political democracy and the inclusion of
the working-class interests into electoral politics and lawmaking as basic to
changing the rule of law. While Marx considered that the rule of law sup-
ported the power of the dominant class in society, Weber looked at the law
in relation to the power of the state. Weber viewed the law in its universality
and its support for individual freedom.22
Weber saw four ideal types of legal systems, which are seldom, if ever,
attained in their pure form. He stated that legal procedures are rational or
irrational. Rational procedures involve the use of logic and scientific meth-
ods to attain specific objectives. Irrational procedures rely on ethical or mys-
tical considerations such as magic or the supernatural. Next, he stated that
legal procedures could proceed, rationally or irrationally, with respect to for-
mal or substantive law. Formal law results when legal decisions are based on
established rules, regardless of the notion of fairness. Substantive law consid-
ers the circumstances of individual cases and the prevailing notion of justice
before making any decision in individual cases. Accordingly, his four ideal
systems are:

Substantive irrationality: This exists when cases are decided on some reli-
gious, ethical, emotional, or political basis rather than by general rules.
Formal irrationality: This exists when rules used are based on supernatu-
ral forces. It is irrational because there is a lack of understanding as to
why it works and formal because of the strict adherence that is required.
Substantive rationality: This exists when decisions are based on the
application of rules from nonlegal sources such as religion, ideology,
or science. It is rational, since the rules are derived from specific and
accepted sources. It is substantive because there is a concern for just-
ness of outcomes in individual cases.
Formal rationality: This involves the use of consistent, logical rules that
are independent of moral, religious, or other normative criteria that
are applied equally in all cases.

Weber’s typology also identifies three types of administration of justice:

Kahdi justice, empirical justice, and rational justice. Kahdi justice is that
justice dispensed by the judge of the Islamic Shari’a Court. Empirical jus-
tice consists of deciding cases by referring to analogies and relying on and
Legal Systems 47

interpreting principles. Rational justice is based on bureaucratic principles.

According to Weber, modern societies differ from the past in that modern
societies are in pursuit of the rational. He contends that the modern law of
the West has become increasingly institutionalized through the bureaucra-
tization of the state.

Emile Durkheim (1858–1917)

Emile Durkheim was a French sociologist whose most important contribu-
tion was probably in helping us understand the relationship between law and
social solidarity and the evolution of the legal systems.23 He was a pioneer in
the study of law and society. His study of the sociology of law is steeped in
positivist methodology. Durkheim sought to examine the social and moral
functions of law along with the sources of law in an attempt to highlight the
underlying patterns of social connectedness or solidarity.
To Durkheim, law was a measure of the type of solidarity in a society. The
term social solidarity refers to the persistent and ongoing expectations that
people establish with one another within a society. The shared expectations
in a primitive society are among persons with similar values, where the
expectations are close and personal. As the society becomes more complex,
the shared expectations are generally not close personal expectations. For
example, you need gas for your car. In today’s society, there is a shared expec-
tation with strangers that they will have gas for sale and that you will buy it.
If the first station you go to is out of gas, then you will go to the next. In the
very primitive society, the family may be depending on you to hunt and bring
home food. If you go swimming instead and do not go hunting, the family
will have nothing to eat.
According to Durkheim, there are two types of solidarity in a society:
mechanical and organic. Simple and homogenous societies are considered
as mechanical. In mechanical societies there are similarities of ideas, habits,
and attitudes. Most individuals in mechanical societies are almost self-suf-
ficient. Organic solidarity occurs when societies develop and become more
complex, heterogeneous, and differentiated by divisions of labor. Durkheim
considered law and society as more of a process of development from simple
to complex form as the societies become more organic and more differenti-
ated. As this process occurs, the law becomes more independent from its
social conditions and more differentiated.
Mechanical societies tend to be repressive, and their law tends to be pre-
dominantly penal in nature and regressive. As the societies develop toward
organic solidarity, their law tends to move away from regressive and more
toward restitutive, with more emphasis on compensation and less on punish-
ment. Contractual law is central to modern societies to regulate the complex
relationships that are a part of any organic society.
48 Law and Society: An Introduction

DURKHEIM ON THE FUNCTION OF CRIME

Durkheim contended that punishment under certain conditions acts as
social rituals that provide the “upstanding” members of the society with
opportunities to reaffirm and intensify their commitment to shared
values and a common identity. He uses an imaginary community of
saints to illustrate this point. In the community of saints of exemplary
individuals, criminal conduct is unknown. Faults that appear venial
to the average person would create a scandal among the exemplary
individuals, the same as a crime would in other communities. If, then,
the community of saints had the power to judge and punish, it would
define these faults as criminal and would treat them as such. To update
the parable, we could imagine a society in which murders, rapes, rob-
bery, etc., are eliminated, and the most serious crime remaining was
jaywalking. Then the most serious punishment permissible would be
imposed for the crime of jaywalking.
From his community-of-saints parable, four important ideas on
punishment arise:

• Punishment is more proactive than reactive.

• Ritual punishment and solidarity are functionally linked.
• Punishment is but a reflection of the solidarity needs of the
community.
• The behavior being punished may not have any direct harmful
consequences for the community.24

Bob Roshier disagrees with Durkheim. In his article, “The Function

of Crime Myth,” he states that to say that crime is functional and hence
necessary for a society means that we must always consciously retain
a stock of people whom we humiliate, imprison, or at the very least
regard as suitable cases for treatment. He states that Durkheim’s argu-
ment about crime is similar to the dispensation of justice described by
Lewis Carroll in Through the Looking Glass:
[The King’s Messenger, the Mad Hatter is] in prison now, being pun-
ished: and the trial doesn’t even begin till next Wednesday and of course
the crime comes last of all.25

Sociological Jurisprudence Movement

The sociological jurisprudence movement is an attack on legal formalism and
rationality. The movement’s most active period was from 1910 to 1920. Its
leaders were Roscoe Pound, Oliver Wendell Holmes, and Benjamin Cardozo.
Legal Systems 49

The movement predated and set the groundwork for legal realism.26 After
the movement, the appearance of formalism in the law was never the same.
Pound and Cardozo are discussed in this section. Holmes will be discussed
in the section on legal realism.27

Roscoe Pound
Roscoe Pound was a prolific writer who published his final essays when he
was in his nineties. For many years he was the dean of Harvard Law School.
His writings relied heavily on the philosophies of sociologist Edward Ross
and the pragmatist William James. According to Pound, social control
requires power—power to influence the behavior of persons through the
pressure of their fellow individuals. His notion of social control is reflected
in his definition of law as “a highly specialized form of social control, carried
on in accordance with the authoritative precepts and applied in a judicial and
administrative process.” He was more concerned with the results of the law,
i.e., how its application affected people than the causes of the development of
the legal form.
Pound contended that judges should be given a degree of discretion in
individual cases and should move away from mechanical applications of the
law. The standards used by judges should concern “equitable application.”
Formal logic should be merely an instrument used to arrive at a fair deci-
sion. Pound contended that the law should act so as to ensure the maximum
amount of fulfillment of interests in a society. It should do so by minimizing
sacrifices, waste, and useless friction.
Pound traced the stages in the development of law. According to him, the
stages started with the primitive forms and advanced toward the “socializa-
tion” of law. The goal in the most developed systems should be the maximum
fulfillment of wants and desires and that greater weight should be accorded
to public and social interests over private interests. He uses the example of
the evolution of property rights to show how property-use restrictions have
developed in the name of “the public good.” For example, at one time, when
a person owned land, he or she could use it in any manner he or she desired.
Presently, when one owns land, the land is owned subject to use restric-
tions placed on the property by the government, e.g., only for a single-family
residence.
One of Pound’s greatest achievements was in reconceptualizing how the
law should be understood. Roscoe Pound contended that ideas of what law is
for are largely implicit in the concept of what law is.28 Pound offered concep-
tions of what constitutes the law. The following list presents his four concep-
tions of what constitutes the law.

Divinely ordained rules: Law consists of god-given or handed-down

rules of conduct.
50 Law and Society: An Introduction

Recorded traditions of old customs: Under this conception, law is the

traditional or recorded body of precepts in which customs are pre-
served and expressed.
Recorded wisdom of the wise: Law is the recorded wisdom of the wise
men of old who have learned the safe course for human conduct.
Philosophically discovered system of principles: Law may be considered
as a philosophically discovered set of principles that express how
humans ought to conform their conduct.

Pound criticized the English-speaking positivists by stating that the pos-

itivists looked at a body of principles and policies and treated them as laws
that are binding on the officials in a society. He attributed this to a lawyer’s
natural tendency to associate laws and rules. He stated that English-speaking
lawyers were tricked into this tendency long ago by the fact that English uses
the same word, changing only the article, for “a law” and “the law.” Most
other languages use two words, e.g., loi and droit and Gesetz and Recht.29

Benjamin Nathan Cardozo (1870–1938)

Benjamin Cardozo was born in New York, the son of a Tammany-sponsored
judge on New York’s supreme court. His father was charged with political
corruption in the Boss Tweed scandal and resigned from office in disgrace.
His mother died when he was 9 and his father when he was 15. He was raised
by his older sister. Rather than going to public schools, he was tutored at
home by Horatio Alger, who later became famous for writing boys’ books
about poor but honest boys who always rose to success and fame. Cardozo
entered Columbia University at the age of 16. Later, as a young lawyer, he was
driven to redeem his family’s name that had been disgraced by his father.30
In his The Nature of the Judicial Process, Cardozo contended that judge-
made law was one of the existing realities of life. In that work, he attempted
to answer the questions: What is it that I do when I decide a case? To what
sources of information do I appeal for guidance? In what proportion do I
permit them to contribute to the results? And, if a precedent is applicable,
when do I refuse to follow it?
He first looked at the source of law used by a judge in making a decision.
He concluded that if the answer is not obvious, then the judge should look
to the common law for the rule that fits the case. According to him, most of
the changes in our legal system have been brought about by judges, and these
modifications are gradual—inch by inch. In his view, the directive forces of
law are philosophy, history, and custom, and the final cause (goal) of law is
the welfare of society.
Legal Systems 51

Legal Realism
The leaders in the legal realism movement were Oliver Wendell Holmes, Karl
Llewellyn, and Jerome Frank. The movement, based on pragmatism, was
popular from 1920 to 1940. Legal realism viewed law as more of a social sci-
ence, with sociology, economics, psychology, and philosophy as its guides. To
the realists, the laboratory is the real world. As pragmatists, the realists were
hostile to formalism, the use of abstractions, and exclusive reliance on strict
deductive types of reasoning. According to them, fixed rules and principles
should be discarded. Thus, rather than using mechanical reasoning, the judges
should be decision makers. Former Chief Justice Charles Evan Hughes, a real-
ist, once stated that the “Constitution is what the judges say it is.”

Oliver Wendell Holmes

Oliver Wendell Holmes Jr. (1841–1935) is considered as one of the founders of the
legal realism school. Holmes noted that legal realism is based on the concept that
judges formulate law by exercising choices as to which laws to use when making
legal decisions. Holmes contended that judges make decisions on the bases of
their conceptions of justness and then resort to formal legal precedents to sup-
port their decisions. Our judges, therefore, should be knowledgeable with not
only the law, but also with its historical, social, and economic aspects.
Holmes sought to define “law” as a prediction of what legal officials would
do. According to him, a legal duty is nothing but a prediction that if a man
does or omits certain things, he will be made to suffer in this or that way by
judgment of the court. Holmes used his famous example of a “bad man” to
illustrate his concepts. Thus, if you want to know the law and nothing else, you
look at it as a bad man would, who cares only for the material consequences
that such knowledge enables him to predict, not as a good man, who finds
his reasons for conduct in the vague sanctions of conscience.31 According to
Holmes, such a person does not care about the general moral pronouncements
and abstract legal doctrines, but only what the courts are in fact likely to do.

McBOYLE V. UNITED STATES

A federal statute was passed in 1919 making it a federal crime to take
a stolen vehicle across state lines. The McBoyle case involved a stolen
airplane, which was a new form of transportation in 1931 when the case
was before the Court. Justice Holmes wrote an opinion that criminal
laws must be interpreted very narrowly, and thus he concluded that an
airplane was not a vehicle for the purposes of this statute.32 He con-
cluded that when Congress passed the criminal statute, they intended
to include wagons, bicycles, automobiles, and trucks. At that time, most
members of Congress did not think of the airplane as a vehicle.
52 Law and Society: An Introduction

Karl Llewellyn (1893–1962)

Karl Llewellyn, a Columbia law professor, contended that what law officials
do about disputes is the law itself. To Llewellyn, rules are the heart of the law,
and the arrangement of rules in society in an orderly, coherent system is the
business of the legal scholar, while the drawing of a neat solution from a rule
to fit the case in hand is the business of the judge and of the advocate.33 He
stated that there is difficulty in framing any concept of law because there are
so many things to be included and the things to be included are unbelievably
different from each other.
According to Llewellyn, the term rule is very ambiguous. It could be pre-
scriptive with what ought to be or what judges ought to do. Or it may be
descriptive, e.g., this is what judges actually do in such cases. Or it may be
both, what they ought to do and what they do. Llewellyn wrote that there are
often respectable legal arguments that can be made on both sides of the same
case. A statement by a judge that “this is the rule” usually means “I find this
formula of words in authoritative books.” Llewellyn argued that a “real rule”
and the one that should be used by the judges would be only a prediction of
what the courts will do and nothing more. He sees the judge’s role as that of
a policy maker.

Jerome Frank (1889–1957)

Jerome Frank, an attorney and later federal court judge, berated common-law
judges for legislating feebly and timidly and for blindly relying on real or fan-
cied analogies with past cases instead of adapting their decisions to the grow-
ing needs of society as revealed by the moral standard of utility.34 He contended
that judges looked for rationalism from legal rules to support the results that
they had reached on other grounds. What other grounds do judges use to
arrive at proper results? Frank, influenced by psychoanalysis theories, consid-
ered the answer to be in the psychological preconceptions and attitudes of the
judges. He also stressed what he considered was a judge’s “situation sense.”35

Max Gluckman (1911–1975)

Max Gluckman was a distinguished British anthropologist who pioneered
the study of traditional African legal systems. He stressed social conflict and
mechanisms for conflict resolution while studying urbanization and social
change in colonial Africa. Rather than viewing African societies as closed,
stable systems, Gluckman recognized the often chaotic changes in those sys-
tems that were caused by colonialism and race conflicts. Despite being inter-
ested in conflict and in culturally complex settings, he argued that the social
systems could be analyzed as integrated systems.
By stressing the role of conflict in social life and the role of colonialism in
modern African societies, Gluckman moved social anthropology in Britain
Legal Systems 53

in a Marxist direction. Despite his conflict approach, he never abandoned the

more traditional British interest in societies as stable self-regulating systems.
He is noted for his use of detailed single-case studies to illustrate general
structural principles.

Modern Legal Theorists

John Rawls
John Rawls, a professor of philosophy at Harvard University, examined H.
L. A. Hart’s principle of fairness. He concluded that we have a moral obliga-
tion to obey the rules of a cooperative enterprise. Rawls stated that our moral
obligation to obey the law is a special case of the duty of fair play. Rawls
contended that obligations differ from duties in that obligations arise out of
the consequences of voluntary acts. He used the concept of natural duties
to establish a duty to obey all laws. The natural duty is a duty that would be
chosen by all rational persons under conditions of impartiality. According to
him, the crucial differences between a natural duty and a moral obligation
is that the natural duty does not depend on any voluntary act, so it applies
equally to the rich and the poor.36

Richard Posner
Richard Posner is currently chief judge of the Seventh Circuit Court of
Appeals and senior lecturer at the University of Chicago School of Law. Prior
to his appointment as an appellate justice in 1981, he was a professor at law
school. He has a distinctive stance in that he is a pragmatist in philosophy,
economist in methodology, and a Ronald Reagan conservative in politics.
Posner defended his pragmatic approach by describing it as an approach that
is practical and instrumental rather than essentialist—interested in what
works and what is useful rather than in what “really” is. According to him,
a pragmatist is not afraid to say that a little forgetting is a good thing. That
forgetting emancipates us from the sense of belatedness, which can be para-
lyzing. And that when applied to law, pragmatism would treat precedent as
policy rather than as a duty to follow.37
His chief contribution to law was in popularizing the “economic analy-
sis” approach to resolving legal disputes. According to him, law should be
designed to ensure that assets and opportunities are in the hands of those
who can and would pay most for them. Using this approach, he has argued
that mothers should be allowed to auction off their newborn babies38 and that
criminal laws that prohibit rape are just, because “even if the rapist cannot
find a consensual substitute … it does not follow that he values the rape more
54 Law and Society: An Introduction

than the victim disvalues it.”39 He contends that law should aim at achieving
the best consequences overall, taking into account not only the community’s
overall wealth but other desirable consequences as well. Posner has had great
influence in American law schools for decades.40

Laura Nader
Laura Nader was educated as an anthropologist. In 1960, she was appointed
as a professor of anthropology at the University of California. She has written
numerous articles on the comparative aspects of law in primitive societies.
Nader was interested in how the jurisprudence of advanced civilizations had
advanced from the primitive stages and studied the development from an
anthropological view.
Laura Nader also researched conflict resolution. She contended that there
were three distinct phases or stages in the dispute process: the grievance or
preconflict stage, the conflict stage, and the dispute stage. The grievance stage
begins when one or more parties perceive that an unjust situation exists. The
situation may be real or imaginary. If it is not resolved at the grievance stage,
it enters into the conflict stage. At the conflict stage, the situation involves
two parties. If it is not solved at the conflict stage, then it enters the dispute
stage. At the dispute stage, the situation there is the involvement of a third
party who is called on to act as a settlement agent.41

Donald Black
Donald Black, a sociologist at Yale University, contends that law is a form of
governmental control, and that the quantity of law varies in time and space. It
varies across the centuries, decades and years, months and days, even the hours
of a day. It also varies across societies, regions, communities, neighborhoods,
families, and relationships of every kind. He argues that the more stratification
present in a society, the more law it has. Stratification is the vertical aspect of
social life. He states that law varies inversely with other social controls and that
law is stronger when other social controls are weaker. Black contends that the
law varies with rank and increases as it nears the mainstream of culture and
decreases as it moves away. The law, according to him, is greater in a direction
toward less conventionality than toward more conventionality. Thus, there is
less legal control for the more conventional members of a society and more
legal control toward those who are less conventional.42 Black’s approach to law
exemplifies the positivistic approach noted earlier by Durkheim.
Black is often criticized for his statement that the law is an institution for
governmental control. According to his critics, the law is used for more than
direct government involvement. For example, people use the law to order
their private relations with one another and in many cases to get compensated
Legal Systems 55

for physical injuries. In addition, Black is also criticized because he fails to

adequately explain some of his terms. For example, he states that “the quan-
tity of law increases with the social complexity,” but he fails to explain why
the relationship occurs.43

Edward Levi
Edward Levi was a professor and later president of the University of Chicago
Law School. In his famous work, An Introduction to Legal Reasoning,44 he
looked at whether the judiciary should assume the function of lawmaker
in spite of, or in conflict with, the enacted law. To answer this question, he
looked first at the process of reasoning in the field of case law and in the
interpretation of statutes and constitutions. He rejected the concept that the
law is a system of known rules and applied by the judges. According to Levi,
legal rules are never clear, and if a rule had to be clear before it could be
imposed, society would be impossible. He argued that the process of legal
reasoning was a three-step process:

1. A similarity is observed between cases.

2. Next, the rule of law inherent in the first case is announced.
3. Then the rule of law adopted in the first case is made applicable to the
second case.

Critical Legal Studies

A group of junior faculty members and law students at Yale University began
a series of critical legal studies in the late 1960s.45 The Conference on Critical
Legal Studies was organized in 1977, and its annual conferences draw more
than 1,000 attendees.
The movement was influenced by Marxist-inspired theorists, and its
roots can be traced to the American legal realism movement of the 1920s
and 1930s. The legal realists had argued against the traditional concept that
the rule of law was supreme. They argued that law was based entirely on the
predilections of judges. To support this argument, they pointed out that good
lawyers could argue successfully on either side of a given case, and there-
fore there was nothing about the law that made any judicial decision inevi-
table. The realists discounted the concept that law was above politics and
the economy. They contended that law was not a science and that it was vir-
tually impossible to separate the law from politics, economics, and culture.
To them, there was nothing distinctly legal about legal reasoning—that legal
reasoning can not operate independently of the personal biases of lawyers
and judges. The law consists of many contradictions and, therefore, it is not
56 Law and Society: An Introduction

self-contained models of legal reasoning, as generally considered. Legal deci-

sions are inevitably based on political grounds. Legal realism disappeared
in the 1940s, and it was not until the 1970s that the work begun by Holmes,
Pound, Cardozo, Frank, and Llewellyn reemerged with the critical legal
studies movement. The attack, however, by the critical legal studies move-
ment was much more vehement and expansive in scope.46
The critical legal studies movement rejected the concept that law was
value free and above political concerns. The critical theorists contend that
the law only seems neutral and independent because it reflects the dominant
value system of a society and that law only seeks to maintain the status quo.
Law to them is a part of the system of power used by the group in power and
not a protection against them. Like the Marxist theorists, critical legal stud-
ies theorists contend that the law serves to maintain the status quo and thus
is actually a part of the system of power used by those in society to maintain
their power. Accordingly, law does not protect the weak, but is a weapon
against them. The critical legal studies movement’s major objective was to
develop and gain broader support for new legal doctrines that were more
representative of class, gender, and race differences. While the movement did
not accomplish its primary goal, it has indicated the extent to which politics
influences our legal system.47

Feminist Legal Theories

The feminist legal theories are concerned with the influence of gender and
gendered conceptions of the law. Many feminists contend that society is
patriarchal and dominated by men and is therefore not necessarily hospi-
table to women. Since law regulates all other societal institutions, the role
of gender is particularly crucial in law.48 Feminists point out that the laws
that are obviously about women, such as those involving rape, abortion,
sexual harassment, pregnancy, pornography, and child custody, were gener-
ally drafted and enacted by men. Originally, feminist legal theory was about
women; now it is a general theoretical approach to law. While feminists share
a common framework within which debates occur, they disagree too much
to have a common set of answers. A common concern of all feminists is: How
can the women’s situation best be served?
Feminists appear to be equally divided between two broad concepts: (a)
women should be treated equally and (b) women should be treated differ-
ently from men in order to ensure equality in results. The “equality femi-
nist” contends that women should be treated “just like men.” Elimination
of employment discrimination based on gender was an early victory for the
equality feminists. The “difference feminist” argues that formal similar-
ity of treatment is not enough, because women are different and that equal
Legal Systems 57

treatment would reproduce inequality. For example, if women were treated

just like men, how could they be given pregnancy benefits?49 The difference
view assumes the existence of “some essential aspect of human nature, some-
thing pre-given, innate, biological, and natural that cannot be changed.”50
The difference position is also referred to as the essentialism position.
Many feminists contend that it is not the comparison between men and
women that matters, but their relative power to each other. According to
Catherine MacKinnon, the task of feminism is to end the subordination of
women, not simply to make them equal in an abstract sense.51

Critical Race Theory

Critical race theory is mostly concerned with issues involving oppression,

difference, and lack of equality. Most scholars trace critical race theory back
to a workshop on critical race theory held in Madison, Wisconsin, in 1989.
Many of the scholars present at the conference had been previously involved
with critical legal studies.52 Other scholars contend that the 1989 conference
merely ratified what had already been in place.
The critical race theorists are a diverse group, speaking about many dif-
ferent areas of the law and with different voices, but with the central theme
of fighting oppression. The movement attempts to rectify the wrongs of rac-
ism while recognizing that racism is an inherent factor in our present society
and that its elimination is impossible. The critical race theorists contend that
an ongoing campaign against racism must be conducted to overcome rac-
ist oppression. They contend that racism is not only a matter of individual
prejudice and everyday practice, but it is also a phenomenon that is deeply
embedded within our society and legal institutions. The theorists also believe
that they have a duty to eliminate racism through reason and to devote their
efforts to separate legal reasoning and legal institutions from their racist roots.
One of the problems with critical race theory is the apparent contradic-
tion between the commitment to racial criticism and the emphasis on racial
emancipation. If the language used to describe justice is so infected by rac-
ism, what are the objectives of criticism? The theory is also criticized because
it lacks a standard methodology and a set of common tenets. Many see the
theory as a reformist movement and indistinguishable from traditional civil
rights movements.
The basic premise of the critical race theorists is that persons of “color”
are being oppressed in the United States. The use of the term critical is to
acknowledge that there is continuity between critical legal studies and criti-
cal race theory. Both are concerned with how the system works to support
and maintain a system of oppression. While the critical legal studies advo-
cates generally do not look beyond the law and legal institutions to identify
58 Law and Society: An Introduction

the forces that determine the content of legal rules, the critical race theorists
look beyond the law and legal institutions in a search for solutions.

Summary

• Common law is considered as judge-made law because it developed

out of decisions made in prior cases that were adopted as precedent.
The name common law comes from the idea that English medieval
law, as administered by the courts of the realm, reflected the “com-
mon” customs of the kingdom.
• Whereas civil-law judges resolve disputes by referring to statutory
principles arrived at in advance, common-law judges focus more
intently on the facts of the particular case to arrive at a fair and equi-
table result for the litigants.
• The three major nations whose law is based on common law are the
United States, Canada, and England.
• The common-law system was originated in England after the
Norman Conquest.
• It is used in English-speaking countries except Scotland and
South Africa.
• At the time of the Norman Conquest, there was no uniform criminal
law in England. Individual courts were dominated by sheriffs who
enforced village rules as they saw fit. To reduce the arbitrary aspects
of the law, William the Conqueror decreed that all prosecutions
should be conducted in the name of the king, a practice that exists
today in criminal-law cases where all criminal cases are conducted
in the name of the state, people, or commonwealth.
• By the 1600s, the primary law of England was based on the manda-
tory rules of conduct laid down by the judges. The rules became the
common law of England. Prior decisions were accepted as authorita-
tive precepts and were applied to future cases.
• When the English settlers came to America in the 1600s, they
brought with them the English common law.
• The legal system in the United States is presently a complex blend of
common and statute law.
• One of the basic principles of common law is the doctrine of judicial
review. This doctrine provides courts with the authority to review all
statutory enactments, judicial decisions of lower courts, and admin-
istrative determinations within their jurisdiction. This common-law
principle was formally recognized by the U.S. Supreme Court in the
famous case of Marbury v. Madison.
Legal Systems 59

• As judicial decisions accumulate on a particular kind of dispute,

general rules or precedents emerge and become guidelines for judges
deciding similar cases in the future. Subsequent cases, however, may
reveal new and different facts and considerations, such as changing
social or technological conditions.
• In the common-law system, a pyramidal structure of courts exists
to define and refine the law. At the base of the pyramid are trial
courts. Above the trial courts, layers of appellate courts, composed
entirely of judges, exist to adjudicate disputes. These disputes center
on whether or not the trial judge applied the correct principles of law.
• The interpretations of law made by appellate courts form the prec-
edents that govern future cases. Furthermore, the importance of a
precedent for any given court depends on that court’s position in
the pyramidal structure; for example, a precedent set by an appel-
late court has greater force in trial courts than in other similar-level
appellate courts.
• If a common-law judge feels that the facts are sufficiently different
from prior cases and that there is no binding precedent, then the judge
is free to depart from precedent and establish a new rule of decision.
• This new decision sets a new precedent as it is accepted and used by
different judges in other cases. In this manner, common law retains
a dynamic for change.
• There is no single, widely accepted, comprehensive theory of law and
society. The field is complex and polemical. The theories overlap, and
theories that are placed under one heading will contain many ele-
ments similar to those placed under another heading.
• Natural law is considered to be a general body of rules of right con-
duct and justice common to all mankind. This concept grew from the
observation of the operation of the laws of nature and their uniformity.
• Positive law, on the other hand, consists of regulations formulated
by the heads of a country or society. In many cases, natural-law con-
cepts agree with positive laws that have be enacted by governments.
The prohibition against killing, for example, is common to virtually
all of mankind, and most nations have enacted laws against it. The
antikilling law could be considered as one with both positive- and
natural-law influence.
• Legal positivism has the basic premise that neither law nor legal sys-
tems have any natural or essential connections with morality. Laws
and legal systems are posited (put in place) by human beings, thus
the name positivism. A central theme of positivism is that what legal
systems ought to be or ought to do is not the same as what legal sys-
tems in fact are.
60 Law and Society: An Introduction

• A group of junior faculty members and law students at Yale University

began a series of critical legal studies in the late 1960s.The move-
ment was influenced by Marxist-inspired theorists, and its roots can
be traced to the American legal realism movement of the 1920s and
1930s. The legal realists had argued against the traditional concept
that the rule of law was supreme. They argued that law was based
entirely on the predilections of judges.
• The critical legal studies movement rejected the concept that law was
value free and above political concerns. The critical theorists contend
that the law only seems neutral and independent because it reflects
the dominant value system of a society and that law only seeks to
maintain the status quo. Law to them is a part of the system of power
used by the group in power and not a protection against the powerful.
• The feminist legal theories are concerned with the influence of gen-
der and gendered conceptions of the law. Many feminists contend
that society is patriarchal and dominated by men and is therefore not
necessarily hospitable to women.
• Feminists appear to be equally divided between two broad con-
cepts:(1) women should be treated equally and (2) women should be
treated differently from men in order to ensure equality in results.
The “equality feminist” contends that women should be treated “just
like men.” Elimination of employment discrimination based on gen-
der was an early victory for the equality feminists.
• Critical race theory is mostly concerned with issues involving
oppression, difference, and lack of equality. Most scholars trace criti-
cal race theory back to a workshop on critical race theory held in
Madison, Wisconsin, in 1989. Many of the scholars present at the
conference had been previously involved with critical legal studies.
• The basic premise of the critical race theorists is that persons of
“color” are being oppressed in the United States. The use of the term
critical is to acknowledge that there is continuity between critical
legal studies and critical race theory.

Questions in Review
1. What is the origin of the term common law?
2. How does common law differ from civil law?
3. Explain the importance of Marbury v. Madison.
4. What did Holmes mean when he stated that “the life of common law
has not been logic; it has been experience”?
5. How was the term civil law derived?
6. What is the basis of the Soviet legal system?
7. Explain the status of American Indian nations.
Legal Systems 61

8. Explain the difference between natural law and positive law.

9. Explain Weber’s four ideal types of legal systems.
10. How did Durkheim explain the development of legal systems?
11. Explain Roscoe Pound’s notion of social control.
12. How did the critical legal studies movement start?
13. What are basic concepts of the feminist legal theories?

Endnotes
1. G.F. Cole, S.J. Frankowski, & M.G. Gertz (Eds.). (1981). Major criminal justice
systems (p. 27). Beverly Hills, CA: Sage.
2. 2 L.Ed.60 (1803).
3. L.M. Friedman. (1997). American law: In introduction (Rev. ed., p. 209). New
York, NY: Norton.
4. P.K. Byers & S.M. Bourgoin (Eds.). (1998). William Penn. In Encyclopedia of
world biography (2nd ed.), 17 vols. Gale Research; reproduced in Biography
resource center. Farmington Hills, MI: Thomson Gale (2007); H. Fantel. (1974).
William Penn: Apostle of dissent (p. 6). New York, NY: William Morrow.
5. Trial of William Penn as reported in 6 How. St. Trials 951 (1670).
Social Research
Methods
3
Chapter Objectives

After reading this chapter you should be able to

• Establish a framework for understanding the relation between law

and society through social research
• Explain the relationship between research and policy making
• List and explain the research methods that are used to develop coher-
ent descriptions and explanations about social phenomena
• Discuss the roles sociologists should take when addressing law and
societal issues
• Define the concept of rule of law

Introduction

Sociological research in America has often focused on areas in which there

are significant legal aspects (for example, crime and delinquency). However,
there is no one general body of sociological understanding uncritically
accepted by everyone. In fact, there are a variety of theoretical perspectives
that are simply different ways of perceiving and understanding the social
world. Therefore, the distinctive feature of sociology is not so much what is
studied but how it is studied and explained.
In this chapter we address several issues relating to scientific inquiry.
Our aim is to help students establish a framework for understanding the rela-
tion between law and society through social research. Our primary focus is
to provide an overview of research methods that are used to develop coherent
descriptions and explanations about social phenomena. A secondary empha-
sis is given to contributions of research to social policy. As such, through-
out the chapter, examples are used to demonstrate the relationship between
research and policy making. The concluding section raises the issue of dif-
ferentiating between social and criminal justice.

63
64 Law and Society: An Introduction

Fundamentals of Research

Before we discuss some of the various methods that can be applied in

researching law in society, it is important to elaborate on a few terms that are
found in the process of scientific inquiry. We begin by providing a definition
of research and discuss the relationship between scientific research and the
structure of legal thinking.
Research is defined as a systematic method of inquiry into a phenom-
enon.1 The specific feature of a systematic method means that the researcher
deliberately conforms to a planned sequence of steps in order to study some
phenomenon. Every natural event (phenomenon) is assumed to have a
cause that is preceded by a number of conditions that are responsible for it.
Consequently, if these causal factors can be distinguished and reinstituted,
the event could be duplicated. This assumption in scientific research, which
is known as determinism, presumes that a certain level of predictability can
be achieved regarding the occurrence of natural events.
Researchers use a standard approach to scientific inquiry that is referred
to as the scientific method. The scientific method serves as a tool for devel-
oping scientific knowledge and skills. The general structure of the scientific
method, which is viewed as necessary for any research study, involves the
following elements:

• The gathering of a set of observations from a natural phenomenon

• The formulation of a hypothesis to explain the observations
• The execution of an experiment to test the hypothesis
• The analysis of data from test results
• The reporting of the findings and the generalization of the conclusions

When using scientific inquiry to conduct research relating to law in soci-

ety, researchers relate the structure of legal thinking to the recurrent types
of social interactions on which it is brought to bear. Often the sociological
analysis of legal thinking is viewed to be closely associated with logical or
philosophical analysis of law, or jurisprudence itself.2 Vilhelm Aubert notes
several characteristics of legal thinking that distinguish it from the kind of
thinking applied in the natural sciences. Two of these characteristics are very
useful for discussing the relationship between law and science.

1. Scientific approaches tend to emphasize, often to the exclusion of

everything else, that aspect of a phenomenon that is general. Judicial
opinions, and also legal theory, tend also to stress the unique aspects
of the case. Generalizations have a large, but not exclusive, part to
play in law. This stems in part from the concern with individual
Social Research Methods 65

justice, but it is also related to the need of the judge to avoid falsifica-
tion of his or her opinions. The normative status of a falsified verdict
is very different from the status of a falsified scientific hypothesis. It
is the duty of the scientists to risk falsification. It is an equally sacred
duty of the judges to take all the care they can to make no proposi-
tion that cannot be upheld, and to limit the applicability of their ver-
dicts so as to reduce the likelihood of falsification. The maximal use
of empirical data to achieve predictability of other phenomena is the
goal of scientists. The minimal likelihood of falsification, if neces-
sary at the cost of generalizability, is the major goal of the judge.3
2. Legal thinking is characterized by the absence of probabilism,4 both
with respect to law and with respect to facts. Events have taken place
or they have not taken place. A law is either valid or invalid. If factual
doubt is very great, the problem is not solved by the assignment of
probabilities to alternatives. Rather, it is solved by the introduction
of rules about the burden of proof, rules about who shall lose if doubt
is of a certain vaguely suggested magnitude. In many cases in which
the best available scientific guess is that a person committed a crime,
the attitude of the law is that the defendant has not committed the
crime because of the operation of the principle in dubio pro reo.4b
Legal thinking is based upon a normative view on truth, that certain
kinds of probable truth are more dangerous than others and demand
stronger proof. This thought is alien to science.5

Methods of Inquiry

In research, one of the critically important decisions to be made is how to go

about collecting data. The researcher chooses a method, which is a basic term
in research used to describe the gathering of accurate facts (data). The meth-
odology is a general approach to problem solving in various situations. It is
the plan or blueprint for a study and includes the who, what, when, where,
why, and how of an investigation.

SELECTED RESEARCH TERMINOLOGY

Variables: Concepts that have been operationalized, i.e., the concepts
we hold about some phenomenon will be defined and trans-
lated into values that can be measured.
Dependent variable: The variable that the researcher is attempting to
predict and, by convention, is denoted by the letter Y.
66 Law and Society: An Introduction

Independent variable: The variable that causes or precedes in time the

dependent variable and is usually denoted by the letter X.
Hypothesis: Specific statements about the relationship between two or
more variables.
Methodology: The manner in which accurate facts or data are col-
lected when conducting research.
Quantitative research: The researcher tends to gather data in the form
of numbers and employs various statistics to explore the rela-
tionship between selected variables.
Qualitative research: The researcher tends to gather data in the form
of words. The researcher chooses methods that allow for an in-
depth inquiry in the hopes of understanding the breadth of the
problem under study.
Random assignment: Each element of the population has an equal
probability of being assigned to a control and experimental
group.
Sampling: A procedure used in research by which a select subunit of a
population is studied in order to analyze the entire population.
Measurement: The assignment of labels (usually numbers) to observa-
tions and the analysis of the data consists in manipulating or
operating on these numbers.
Internal validity: Accuracy within the study itself. (Are we measur-
ing what we think we are measuring?)
External validity: Accuracy in the ability to generalize or infer find-
ings from a study to a larger population.
Reliability: The consistency and stability of the measurement. (If the
study were duplicated, would the instrument yield the same
answer to the same question upon second testing?)

Several methods can be applied in researching the sociology of law, and

often multiple methods are applied in such a study. For example, in a study
conducted to better understand the civil and criminal justice system process-
ing of child abuse and neglect cases, Noy Davis and Susan Wells employed a
methodology that consisted of four separate studies. The research methods
included: (a) a national survey of child protective services, law enforcement,
and court personnel in 41 counties; (b) a case study comparison of case pro-
cessing at two sites; (c) a case study of a site that actively prosecutes cases of
child physical abuse; and (d) a prospective case-tracking study of 450 cases
at one site.6 Moreover, some methods allow for direct causal inferences to be
made, while others provide less indisputable evidence of causation. Still other
methods are not concerned with causal inferences at all. Rather, these methods
Social Research Methods 67

are interested merely with classifying relations among measures, describing

things in terms of a set of characteristics, or discovering those characteristics.

The Experimental Method

The scientific study of the sociology of law is especially useful in three basic
types of situations.

1. When exploring the existing state of affairs to gain some insight into
the forces and factors that determine social reality
2. When the objective is to describe a relationship between the law and
society or vice versa
3. To explain, through sociological research methods, whether legal
precepts have attained their intended effects, and whether or not
they have also brought about any unexpected and undesirable effects

Data secured by these methods are likely to be more reliable the more quan-
titative they are (provided that the methods themselves are valid) and the
more opportunities there are to apply the experimental method.7
Experimental research, also known as the cause-and-effect method and
the laboratory method, involves the use of experiments to answer research
questions. In experimental research, subjects are randomly assigned to con-
trol and experimental groups, and the independent variable can be manip-
ulated. These groups are equivalent except that the experimental group is
exposed to the independent variable and the control group is not.
A good illustration of random assignment and variations in adminis-
tering the treatment can be seen in research conducted by Robert Davis,
Madeline Henley, and Barbara Smith on the effects of victim impact state-
ments on sentencing decisions and on victim satisfaction with the criminal
justice system. The subjects of this study were individuals who had testified
before the grand jury at the New York State Supreme Court between July 1988
and April 1989. The eligible population for inclusion in the study consisted of
those who had been victims of robbery, physical assault, attempted homicide,
or burglary. A total of 294 victims were randomly assigned to one of three
experimental conditions: (a) 104 victims were interviewed, with an impact
statement written and immediately distributed to the prosecutor, defense
attorney, and judge on the case; (b) 100 victims were interviewed to assess
impact, but no statement was written; and (c) 89 victims were assigned to a
control condition in which there was no interview or statement. Subsequent
interviews evaluated victim’s perception of their role in the proceedings and
their satisfaction with the outcomes.8
Experimental designs allow for exploration, description, and explanation
of causal relationships between the existence of law and social phenomena.
68 Law and Society: An Introduction

For example, let’s consider a field experiment designed to assess the effect
of various options for police responses to domestic-violence calls. The study
was conducted by Lawrence Sherman of the Police Foundation and the
Minneapolis Police Department. In the experiment, police systematically
varied the use of three approaches when responding to misdemeanor spousal
assault calls: (a) ordering the suspect to leave the home for 8 hours, (b) advis-
ing the couple to calm down, and (c) arresting the suspect. The researchers
found that the third option of arrest and a subsequent night in jail for the
offender appeared to produce the best results by cutting the risk of repeat
violence against the victim by 50%.9 The research study was widely publi-
cized and immediately became of interest to state lawmakers. In the 5 years
following the study, 10 states enacted laws making spouse assault a separate
criminal offense, and over half the states dismantled legislation that pre-
vented police from making an arrest if they did not witness the crime.10
It is common to classify research designs into two major groups: experi-
mental and quasi-experimental designs. In experimental designs, subjects
are randomly assigned to control and experimental groups, and the indepen-
dent variable can be manipulated. Quasi-experimental designs may include
combinations of these elements but not all of them. Typically, these designs
lack the ability to manipulate the independent variable and to randomize
subjects. We will first explore the true experimental design and then turn our
attention to the quasi-experimental methods.

The Classic Experimental Design

A diagram of the classic experimental design is provided in Table 3.1. The
central features of this pretest-posttest control group design are random
assignment into experimental and control groups, pretest of both groups O1
and O3, treatment to the experimental group only (where X designates the
independent variable), and a posttest of both groups O2 and O4. The differ-
ence between the posttest of the experimental group (deg) is compared to the
difference between the control group (dcg).
To illustrate the application of an experimental design in a social setting,
let’s suppose that we are interested in studying the cause-and-effect rela-
tionship between GRE preparation courses and admission rates to graduate
school. Our proposition is that students who take the GRE prep courses score
higher on the GRE exam and therefore increase their chances of admittance

Table 3.1 The Classic Experimental Design

Pretest Treatment Posttest Difference
Experimental group O1 X O2 O2B O1 = deg
Control group O3 O4 O4B O3 = dcg
Social Research Methods 69

to graduate school. In the simplest type of experiment, we create two groups

that are “equivalent” to each other. Both groups have similar people, who live
in similar contexts, have similar backgrounds, and so on. The experiment
relies on random assignment of people to groups and administering a pretest
to obtain baseline data. One group (the experimental group) gets the GRE
preparation course and the other group (the control group) does not. Now,
if we observe differences in outcomes (posttest) between these two groups,
then the differences must be due to the only thing that differs between them
(i.e., that one got the treatment and the other didn’t).
Experimental designs are intrusive and difficult to achieve in most social
situations. And, because an experiment is intrusive, the researcher is to some
extent setting up a factitious situation so that an assessment can be made
about the causal relationship with some degree of internal validity, i.e., to
rule out the possibility that something other than the treatment caused the
outcome. When this occurs, however, it concurrently limits the degree to
which the researcher can generalize the results to real contexts outside the
controlled experiment. There are two variations of this design that are stron-
ger in this respect: the Solomon four-group design and the posttest-only con-
trol group design.

The Solomon Four-Group Design

The Solomon four-group design is an extension of the pretest-posttest
control group design. It was named after its developer, R. L. Solomon,
who proposed it in 1949 in order to emphasize external validity fac-
tors. The Solomon four-group design, presented in Table 3.2, contains
the same features as the classic design, plus an additional set of control
and experimental groups that are not pretested. Then, a variable is intro-
duced to both experimental groups. The data are analyzed by doing an
analysis of variance of the posttest scores between the four groups (i.e.,
the two experimental groups O2–O5 and the two control groups O4B O6).
This design helps determine the effects of pretesting on the groups. This
design requires considerably larger samples because of the need for four
matched groups.

Table 3.2 The Solomon Four-Group Design

Pretest Treatment Posttest Difference
Experimental group O1 X O2
Control group O3 O4
Experimental group X O5
Control group O6
O2B O5 = deg
O4B O6 = dcg
70 Law and Society: An Introduction

Table 3.3 Posttest-Only Control-Group Design

Pretest Treatment Posttest Difference
Experimental group X O1
Control group O2
O1 compared with O2

The Posttest-Only Control-Group Design

The last of the true experimental designs is the posttest-only control group
design. This design is identical to the last two groups of the Solomon four-
group design, which are not pretested. The design is diagrammed in Table 3.3.
The samples are randomly divided into two groups, a variable is intro-
duced to one group, and then both groups are posttested to discover the differ-
ence, if any, in the two groups as the result of the introduction of the variable.
This design is used in those situations where a pretest is not practical. As an
illustration, suppose a researcher is examining whether playing violent video
games has an effect on aggressive thinking. The researcher selects a sample
that is randomly assigned to two groups. One group plays games with very
violent content and the other does not. Later, the two groups are interviewed.
To assess the effect of the violent games, situation questions are asked and
responses are recorded. The responses to the interview in the two groups are
compared. A significant difference between the groups will indicate that the
violent games may have had an effect on aggressive thinking.

Quasi-Experimental Designs
Quasi-experimental designs attempt to approximate the classic experi-
mental design but typically lack the ability to manipulate the independent
variable and to randomly assign it to experimental and control groups.
Quasi-experimental designs may be subdivided into the nonrandomized
control group pretest-posttest design, the time-series experiment, and the
equivalent time-samples design.

Nonrandomized Control Group Pretest-Posttest Design

The nonrandomized control group pretest-posttest design is similar to the
true experimental design except the two groups are not equivalent. For exam-
ple, juveniles released from correctional institutions in Texas where certain
types of prerelease counseling is provided are compared to juveniles released
from correctional institutions in Kansas where the prerelease counseling is
different. Circumstances beyond the control of the researchers prevent the
two groups from being equivalent. The lack of equivalent groups may affect
the validity of the project.
Social Research Methods 71

Time-Series Designs
The time-series experiment involves the taking of evaluations of a group
and then introducing a variable into the system. Then, another group of
evaluations is made to determine if there is any change in the group. If
a substantial change has resulted, the researcher may conclude that the
introduction of the variable was the cause of the difference. For example,
suppose we were interested in studying the effect of a new law restricting
handgun sales on reducing violent crimes. Measures of the violent crime
rate would be taken at successive time periods prior to the enactment of the
law, and other measurements would be taken after the intervention. This
method is sometimes called an interrupted time series because the series
of measurements is interrupted by a treatment. It is superior to simple
pretest-posttest designs in that multiple measurements show trends and
not just a simple analysis of the last point before and the first point after
the treatment. The distinction of quality between a time-series design and
a before-after design is illustrated by John Monahan and Laurens Walker
in their study of the impact of the Community Mental Health Centers Act
of 1963.

In 1963, the year the act was passed, the resident population of state mental
hospitals in the United States was approximately 5,000,000. In 1990, it was less
than 150,000. These before-after figures have been used to persuade Congress
of the effectiveness of the act. When a time-series with more than one mea-
surement before the passage is used, however, the results seem quite different.
A time-series shows the population of state mental hospitals to have increased
each year from early in the century until 1955, and decreased each year there-
after, with no noticeable acceleration in the rate of decrease in 1963, the year
the act was passed. In this light, the most plausible hypothesis is that the factor
causing the population decrease began in mid-1950s, and not in mid-1960s.
Many now view the introduction of psychotropic medication as the principal
method of treating patients, which indeed began in 1955, as the most plausible
hypothesis to account for the deinstitutionalization of mental hospitals.11

Another example is illustrated by Tomislav Kovandzic’s 2001 study

on Florida’s habitual offender laws. The presented study used a multiple
time-series design, pooling annual data for 58 counties in Florida from
1980 to 1998. Substantive findings showed the habitual offender extra
prison time and prison population variables suggest that Florida’s habitual
offender law may have slightly reduced rape, robbery, assault, burglary,
larceny, and auto theft. The study suggested that the impacts, although
small, were a result of incapacitation as opposed to deterrence. In sum-
mary, the results suggested that Florida’s habitual offender law was not
very effective at reducing crime. The study recommended that the Florida
72 Law and Society: An Introduction

legislature repeal the law and sentence repeat offenders under the state’s
sentencing guidelines.12

Equivalent Time-Samples Design

The equivalent time-samples design is a variety of the control-group time
series that attempts to control history in time designs. In this design, the
variable is present sometimes and absent at other times, thereby creating an
on-again, off-again design. This allows the researcher to study the differences
when the variable is present and when the variable is absent. For example, a
group of juveniles under study could be introduced to the variable of coun-
seling for 6 months, then counseling withdrawn for 6 months, etc. After a
time period of the on-again, off-again counseling, the researcher may be able
to notice differences in the juveniles while undergoing counseling compared
to when they are not being counseled.

The Observation Method

The field experiment is a research method designed to bring to natural situ-
ations some of the precision of the laboratory. The researcher must be in a
position to observe changes in behavior of experimental and control groups,
so as to be able to evaluate the effects of each of the independent variables.
There is a wide range of research strategies commonly used within field
research. One of the best methods of data collection is through participant
observation. In this method, the researcher actively participates, for an
extended period of time, in the lives of the people and situations under study.
This method of research assumes that the researcher will become accepted by
the group and therefore be able to acquire detailed information by speaking
with the people.13
Researchers often adopt the methodology of participant observation
when little is known about a phenomenon. By virtue of being actively involved
in the situation under observation, the researcher often gains insight and
develops interpersonal relationships that are virtually impossible to achieve
through any other method. Consider the following excerpt taken from a
July 1997 Bureau of Justice Assistance report titled, Trial Court Performance
Standards and Measurement System Implementation Manual.14

The method described most often for measuring access to justice is observa-
tion (sometimes combined with simulation). Observers systematically record
what they see and hear. This structured information can then be examined
quantitatively as well as qualitatively. These “see, hear, and record” measures
range from concrete and objective (Was an observer able to gain entrance to
a courtroom?) to subjective (Did activity taking place in a courtroom detract
from the dignity of the proceedings?). There are 12 measures of this type.
Social Research Methods 73

Although the observations could be carried out by almost anyone, the rec-
ommended approach is to use citizen volunteers who are relatively naïve to
the legal system and who are unfamiliar with the facilities and “customs” of
the courthouse. This results in records of experiences that resemble those of
ordinary citizens who have infrequent occasion to do business with the court.
Furthermore, the observers chosen should optimally be representative of the
jurisdictional community of the court. Representativeness is more important
for some measures than others. However, because the same individuals could
be asked to obtain data for all the observation measures, it may be helpful to
recruit one pool of observers who vary on demographic factors. Observers
may be recruited by contacting volunteer organizations, universities, senior
citizen groups, and so forth. This “volunteer observer” method has other
advantages, notably its relatively low cost. The court must invest staff time
to recruit volunteers, orient them to their assignments, and evaluate results.
Once the recruitment and orientation are completed, however, the observers
may be used to collect data for many measures described throughout the mea-
surement process. Because the observers are relatively few in number, they
offer the added advantage of being able to provide court staff with additional
information during interviews following their structured assignments. A
much richer, qualitative analysis results when explanations, descriptions, and
suggestions can be elicited from the observers to augment what is provided on
written forms, questionnaires, and checklists.

Types of Participant Observation

Participant observation is distinguishable in terms of the varying degrees in
which the researcher interacts with a group of individuals in their natural set-
ting. Typically, there are three ways in which the participant observer functions:

• Complete observer: Occurs when the researcher informs others of

his or her research activity and simply observes the activities of the
group under study. There is no attempt on the part of the researcher
to manipulate the environment. The duty of the researcher is to
observe and record.
• Observer as participant: Has been referred to as the one-visit inter-
view.15 Although it may not be readily apparent, when a researcher
conducts an interview with a respondent, he or she is actually per-
forming the role of participant observer. The researcher observes the
respondent’s demeanor while dialogue occurs, and as such can gauge
the extent to which further inquiry is necessary and possible.
• Complete participation: Takes place when the researcher joins in
the activities of the group and begins to manipulate the direction of
group activity. Often the researcher must disguise himself or herself
in order to be accepted into the group, thus allowing for maximum
74 Law and Society: An Introduction

interaction with the group. Disguised observation is research in

which the researcher hides his or her presence or purpose for inter-
acting with a group. For example, sociologist Robert Balch went
undercover to study the Heaven’s Gate UFO cult, which taught that
spacecrafts would spirit away its faithful members to the next king-
dom. He didn’t identify himself as a researcher but rather posed as
a new member, sleeping with others in isolated campgrounds and
depending on churches for money.16

In the process of conducting an observational study, the researcher must

maintain a high level of attention and still be able to accurately record the
necessary data. The first task in the collection effort involves a descriptive
account of the research setting. Basically, the aim is to allow the researcher to
describe the setting, the people, and the events that have taken place. It may
also be important for the researcher to record initial impressions of each.
There are several common ways to make records of field observations.
The choice of which form to use depends on the limitations of the research
setting and preferences of the researcher. Some of the more notable recording
techniques include field notes, audio- and videotape recording, laptop com-
puters, tablets, or smart phones.
The researcher composes field notes while actively observing the
research setting. This necessarily means that, where possible, field notes are
made of observations on the spot, during the event. This common form of
data collection in observational studies consists of writing short phrases,
using abbreviations, etc. The primary purpose of field notes is to help the
researcher recollect what happened, so that a more detailed document can
be produced later. As a routine matter, field notes should be gone through
shortly afterwards to add detail and substance. Field notes may not be prac-
tical if too many events occur for the researcher to quickly write down
observations. If this dilemma occurs, the researcher might instead rely upon
audiotape recordings.
The option of using audiotape-recorded observations is very attractive
to researchers because it is handy and versatile. Microcassette recorders are
relatively inexpensive to purchase and small enough to be carried in a shirt
pocket. If necessary, accessories can be purchased to outfit the recorder for
hands-free operation. Finally, recorders can be easily concealed if desirable. A
vast majority of the population now has access to smart phones with record-
ing devices built into them, making this device a very popular form of record-
ing. The disadvantage of audiotape recordings is, of course, the possibility of
a malfunction in the equipment. If batteries become weak or a moveable part
of the device does not function, the data collection effort is jeopardized.
Another observational data-collection technology is videotape record-
ing. Portable, handheld smart phones with video capabilities can be used in
Social Research Methods 75

a variety of research settings. The greatest advantage of videotaping obser-

vations is that it produces a re-creation of events that can be viewed several
times over. The disadvantage, though, is that videotaping may distract the
researcher, thus limiting his or her abilities to record big-picture events. That
is, while the researcher is engrossed with videotaping one event, another
event of equal importance may go undetected by the researcher. Also, as with
audio devices, video equipment is susceptible to malfunction.
Laptop computers can be very effective in recording data in the field.
This is especially true if the researcher possesses good typing skills and is
computer literate. As with the latter two options, equipment failure is always
a possible menace to the data-collection effort. Tablet computers are also
becoming very popular with researchers due to their small size and large
upside of processing capabilities.
As you have no doubt recognized, the four options we have noted are
viable data recording methods only as long as the researcher is involved in
complete observation. If engaged in some form of participation, on-the-spot
recording is often not feasible. In this case, the researcher constructs obser-
vation notes as soon as possible after leaving the field.

Simulation Research
Another research strategy commonly used within field research is simula-
tion. In this method, the researcher constructs models of social phenomena.
Sometimes these are qualitative (e.g., subject-oriented models) and some-
times quantitative (e.g., statistical models). A separate type of modeling has
been added to the social scientists’ repertoire: models expressed as computer
programs that are run to simulate aspects of the phenomenon under investi-
gation. For instance, little empirical research has been conducted with juries
because of the legal requirements of closed deliberations. Consequently,
mock trials in which jurors respond to simulated case materials have
become a valuable research tool. The mock trial permits both manipula-
tion of important variables and replication of actual cases.17 In relation to
jury simulations, some researchers have shown a particular interest in how
verdicts are reached by juries. Norman Finkel, a professor of psychology at
Georgetown University, conducted research relating to the tension between
what people say in their capacity as citizens and what they do in their capac-
ity as jurors. His data came from experiments in which people have been
asked to pretend to be jurors and to react to the scenario of a criminal case.18
These types of research projects are frequently audiotaped or videotaped and
then analyzed for content.19 In some areas of social science, the use of com-
puter simulation is well established. For example, microsimulation models
have been used to study the likely impacts of fiscal changes; macroeconomic
76 Law and Society: An Introduction

models have been used to simulate future economy changes; and simula-
tions have been used to study cognitive patterns of people.
In the recent past, there has been a resurgence of interest in simula-
tion research. Faster and improved computer equipment and software have
allowed researchers to build complex simulations more easily. Recent research
has shown that computer simulation methods can be an effective tool for
the development of theories in addition to prediction. Simulation allows the
social scientist to experiment with artificial societies and explore the impli-
cations of theories in ways not otherwise possible. Brendan Halpin at the
Institute for Social and Economic Research, University of Essex, Colchester,
UK, points out:

A number of important features relevant to simulation in sociology have

become apparent. Among these are the benefits of formal statement and
manipulation that simulation allows and the way in which simulation
work rapidly comes up against (and, to some extent, offers solutions or new
approaches to) central problems of sociology such as agency-structure duality
and the relationship between macro and micro levels.20

The Survey Method

While observational methods of data collection are suitable for investigating
a phenomenon that can be directly observed, not all phenomena are acces-
sible to the investigator’s direct observation. Therefore, the researcher must
collect data by locating people who have experienced a certain phenomenon
and asking them to recall specific information about the phenomenon. The
researcher engages a sample of individuals presumed to have undergone cer-
tain experiences and interviews them concerning these experiences. Their
responses constitute the data upon which the research hypotheses are evalu-
ated. Three major methods are used to elicit information from respondents,
which are classified by their method of data collection. They are personal
interviews, telephone interviews, and self-administered mail surveys.
Selecting the type of survey requires the researcher to first consider issues
relating to the population sample, the nature of questioning, availability of
data, and resources. Sometimes there is no clear choice of which one is best.
This is because each method has its advantages and disadvantages. So, often
it comes down to the preference of the researcher. Some researchers are of the
opinion that data collected from self-administered mail surveys are riddled
with problems of validity and reliability. Others are less concerned with con-
trol issues but prefer interviews that enable them to get to very detailed data.
Still others rely heavily on mailed surveys to capture large amounts of data in
hopes of understanding the research problem under study. Gaining a greater
Social Research Methods 77

appreciation for each type of survey research requires us to take a closer look
at each individual method.

Personal Interviews
Personal interviewing is a dynamic process whereby an interviewer (the
researcher) orally solicits responses from persons identified within a sample
population (respondents). The interview is viewed as a fairly straightforward
method of finding things out, especially if the conversation is clear and fairly
to the point.21
Three basic terms are used to distinguish between the degree of formal-
ity of the interview. They are fully structured interviews, semistructured
interviews, and unstructured interviews. The questions, their wording, and
their sequence define the extent to which the interview is structured. And,
although differences are found in each of these approaches, all of these types
of interviewing techniques require that the researcher listen to what is being
said and systematically record the responses.
A structured interview is a process in which the researcher devel-
ops a predetermined set of questions and asks the respondent for specific
replies. The researcher controls the interview and asks all respondents the
same questions and in the same order. In addition to questions, structured
interviews may involve provocative statements that are intended to prompt
an immediate response from the person being interviewed. Again though,
the respondent is provided with a list of possible responses in which one
is chosen.
Unstructured interviews use open-ended questions to get as much
detailed information as possible from the respondent. The unstructured for-
mat allows the interviewer the opportunity to probe or ask follow-up ques-
tions. And, such interviews are generally easier for the respondent, especially
if the information sought is opinion or belief.
Semistructured interviews, then, are surveys that combine both struc-
tured and open-ended questions. In the semistructured interview, the
researcher possesses great latitude in deciding how the survey will be admin-
istered. It relies heavily upon the researcher’s ability to perceive how the
interview is developing and make changes accordingly. The process is differ-
ent than the pencil-to-paper structured survey, in that the researcher adjusts
the questioning depending upon the respondent’s answers. In his 2010 study
of Oklahoma district attorneys regarding how they used their prosecutorial
discretion and why, Harrison Watts used the semistructured interviews to
gain an insight into what factors played a role in the prosecutors determining
what crimes to indict.22
The choice of a structured, semistructured, or unstructured approach
depends on the information desired by the researcher. Sometimes this involves
using multiple stages of interviewing. In this technique, the researcher first
78 Law and Society: An Introduction

conducts unstructured interviews to gather preliminary data that will be

used to develop and administer semistructured interviews. Findings from
this second interview stage are then used to develop a final structured sur-
vey. For example, in a study of gang violence, Scott Decker and his fellow
researchers interviewed 99 active gang members, representing 29 different
gangs in the St. Louis area. They used a semistructured questionnaire to
guide the interviews, which had been developed from unstructured inter-
views conducted before the beginning of the study.23

Telephone Interviews
Another way of gathering research data is by telephone. The main attraction
of telephone interviewing is that it enables the researcher to gather informa-
tion rapidly. In comparison to personal interviews, the telephone interview
is similar in that it allows for some personal contact between the interviewer
and the respondent. One difference, however, is that this method of research
allows for large amounts of data to be collected from geographically scattered
samples more cheaply than face-to-face interviews. For instances, Barbara
Smith and Sharon Elstein used a national telephone survey of 600 prosecu-
tors to study how cases of child physical and sexual abuse are being pros-
ecuted and to examine the outcomes of child sexual abuse cases in criminal
courts across the country.24
The popularity of the telephone survey method has increased as tech-
nological advances in the telephone industry have occurred. Much work has
been done to develop random digit dialing (RDD) as a means of providing
representative probability samples of all telephone owners. RDD sampling
includes both those households listed in telephone directories and those
with unlisted, or nonpublished, numbers. An example of how RDD has been
used in law and society research is a 1988 study in Ontario, Canada. There,
researchers used RDD to select a probability sample of heads of households
in order to conduct telephone interviews as a means of assessing experiences
with Ontario’s civil justice system.25 As more and more of the population
moves toward cell phones and away from land lines, the RDD may need to be
reconfigured for cell phone technology.
Computer-assisted personal interviewing (CAPI) is a data-collection
technique where researchers use portable computers to enter data directly
via a keyboard instead of collecting data on paper questionnaires. Computer-
assisted interviewing has been used extensively for telephone surveys and in
recent years has been introduced when conducting face-to-face interviews.
Tablet computers are very useful in this manner.

Mail Surveys
The most common type of mail survey is the self-administered question-
naire. This method of data collection enables the researcher to survey a large
Social Research Methods 79

STRENGTHS AND WEAKNESSES OF SURVEY RESEARCH

Strengths Weaknesses
Personal interview Allows in-depth, free High costs
responses
Researcher can see Time consuming
respondent’s facial
expressions, gestures, etc.
Responses are accurate Requires skilled interviewers
Visual presentations are Open to interviewer bias
possible
High percentage of return Summarizing data may be
more difficult
Telephone interview Less costly than in-person Unlisted phone numbers
interviews unavailable
Amount of time to secure Can be confused with a
data is low telemarketing call
Use of computer Visual presentations not
technology possible
Verbal comments are easier Interviewer can bias
for most respondents than responses based on verbal
written ones cues or voice inflections
Mailed surveys Inexpensive Low response rate
Offer privacy and Respondent literacy may be
anonymity problematic
Respondent accustomed to Open-ended questions
the format unfeasible
Interviewer bias is Validity of responses
eliminated
Data are easier to No control over who actually
summarize completes the survey
Source: Gerald J. Bayens & Cliff Roberson. (2000). Criminal justice research: Theory
and practice. Incline Village, NV: Copperhouse Publishing.

group of respondents in a minimum amount of time. The advantage of this

type of survey is that the questionnaire can be mass mailed, completed, and
returned to the researcher in half the time it would take to conduct inter-
views of only a few respondents. In addition to saving time, the mail survey is
an affordable method of gathering information. Typically, only postage costs
are necessary to initiate a self-administered mail survey.
While there are clear advantages to mailed surveys, three problems
in particular can occur. The first is lack of response. Without follow-up, a
mailed survey may unfortunately net only a small percentage return rate in
80 Law and Society: An Introduction

a one-time-only distribution. An illustration of this problem can be seen in

the efforts of the Federal Judicial Center, a research, education, and plan-
ning agency of the federal judicial system. At the request of the Judicial
Conference’s Advisory Committee on Bankruptcy Rules, staff of the research
division of the Federal Judicial Center developed a questionnaire to help the
subcommittee learn the views of various participants in the bankruptcy sys-
tem concerning the rules and related forms. The center sent a questionnaire
to bankruptcy, district, and circuit judges, other bankruptcy court person-
nel, law professors, and bankruptcy practitioners. A total of 3,145 recipients
were sent the questionnaires, which were mailed in January and February
of 1995. However, only 23% (720) of those surveyed responded to the seven
questions about the nature and extent of their bankruptcy-related work.26
Another problem with the mail survey is that while the self-adminis-
tered questionnaire may have been addressed to a particular person, there
are few ways to check on who actually completed the document. The third
problem with the self-administered survey is that there is little or no check
on the honesty or seriousness of responses.

Historical and Archival Research

When researching the sociology of law, researchers do not always use actual
observation, interviewing, or questionnaires as a means of collecting infor-
mation. Rather, historical and archival data, such as official records, diaries,
and newspapers, can be used to reconstruct and analyze phenomena. When
using historical documents to extract information, researchers rely upon
everyday common-sense knowledge of life in society as well as upon the gen-
eral knowledge of various subjects related to that under study.27
At times, there has been a tendency by some social scientists to view
materials that were produced in the past as a mere chronicle of unique events,
part myth, allegory, and fiction.28 More recently, however, historical research
has gained much greater acceptance by social scientists who recognize that
small, specific events can provide indexes to change. As John Burnham
notes, intellectual history may indeed furnish a way into understanding how
behavioral, social, or human scientists not only have shared historical forces
with the changing social environment, but have interacted with their social,
cultural, and intellectual matrix.29
Many examples of the use of historical data exist. Lisa Newmark, for
example, used official court records to examine client and court outcomes of
parental drug testing in child abuse and neglect cases in Washington, DC.
In 1987, the family court judges in Washington, DC, began referring abuse
and neglect cases for drug testing in order to assist courts and social ser-
vices in identifying and addressing treatment needs. The overall goal of the
court action was to promote child safety as well as family preservation. The
Social Research Methods 81

research compared a matched sample of 169 drug-involved cases that entered

the drug-testing program from a 3-month time period, with a similar group
of 159 drug-involved cases from the same period that did not enter drug test-
ing. The findings of the research indicated that drug testing seemed to be a
promising tool for courts and social services to use in working with child
maltreatment cases in which parents are substance abusers.30
The Center for Justice Research and Education at Lamar University (Texas)
conducted research for the Florida Governor’s Task Force on Domestic and
Sexual Violence to construct red flags that might serve as bases to intervene
and prevent domestic fatalities. The objective of this research was to break
down the various components of domestic cases to determine if combinations
of subcomponents are most likely associated with, and therefore predictive of,
lethal domestic situations. Primary sources for data included police records,
court documents, autopsy reports, and hospital reports. One of the important
conclusions drawn from this research was that judges could be made aware
of the existence of red flags for domestic fatalities and take them into account
when fashioning specific conditions in restraining orders and sentences.31

TRIAL LAWYERS ARE A GOOD MODEL

FOR HISTORICAL RESEARCHERS
The trial attorney’s job is to present enough historical evidence to per-
suade a jury to accept a hypothesis—either there’s sufficient evidence
to convict the defendant or there’s not. To do this, lawyers do the same
things that historians do. They gather and examine evidence, analyze
it, synthesize it, and form opinions. They separate fact from fiction, at
least from their own point of view, and they try to persuade the jury
what’s true and what’s false. They conduct very sophisticated historical
research that uses forensics and other physical and social sciences to
support the hypothesis. And, as would a good historian, a good trial
attorney can convince people that the obvious isn’t always true, and
even that people can’t always trust their own senses and instincts. An
effective trial attorney can persuade jurors to take on a new epistemol-
ogy and to trust the attorney’s interpretation of events. Of course, this
is where the power of effective rhetoric pays off. Has anybody here seen
the classic Groucho Marx movie Duck Soup? Groucho asks, “Who are
you gonna believe, me or your own eyes?”

Source: Michael Mark. (1996). Qualitative aspects of historical

research. Bulletin of the Council for Research in Music Education,
130, 38–43.
82 Law and Society: An Introduction

In addition to official documents, historical data may also include diary

information. Sociologists have taken seriously the idea of using personal
documents to construct pictures of social reality, especially when personal
interview methods cannot produce reliable data because the events under
study are difficult to recall accurately or are easily forgotten. Diaries can be
open-ended, allowing respondents to record activities and events in their
own words, or they can be highly structured, where all activities are precat-
egorized. An obvious advantage of the free format is that it allows for greater
opportunity to recode and analyze the data. But the labor-intensive work
required to prepare and make sense of the data may render it unrealistic for
projects lacking time and resources, or where the sample is large.32

The Case Study

Another method of data collection that can involve historical research is the
case study. A case study is defined as an in-depth, multifaceted investigation
of a single social phenomenon. It is a method of organizing data for the pur-
pose of analyzing the life of a social unit—a person, a family, a culture group,
or even an entire community. By concentrating on a single phenomenon or
entity, the researcher aims to uncover the interaction of significant factors
characteristic of the phenomenon.
Some of the advantages of the case study method that have been sug-
gested include:

• It permits the grounding of observations and concepts about social

action and social structures in natural settings studied at close hand.
• It provides information from a number of sources and over a period
of time, thus permitting a more holistic study of complex social net-
works and of complexes of social action and social meanings.
• It can furnish the dimensions of time and history to the study of
social life, thereby enabling the investigator to examine continuity
and change in lifeworld patterns.
• It encourages and facilitates, in practice, theoretical innovation
and generalization.33

Two dominant styles for presenting case study findings are analytic report-
ing and reflective reporting.34 The major characteristics of analytic reporting
are (a) an objective writing style and (b) information organized into the con-
ventional headings of introduction, literature review, methodology, results,
and discussion. Reflective reporting, on the other hand, describes data based
on the researcher’s intuition and judgment. The researcher attempts to depict
a phenomenon by re-creating it contextually.
Social Research Methods 83

As an illustration of the use of case studies in law and society research,

we consider the NIJ research report titled, Case Studies in Use of DNA
Evidence. This report provides the results of research pertaining to char-
acteristics of the 28 DNA-exculpatory cases identified during the study.
In each of the 28 cases, all of which involved some form of sexual assault,
a defendant was convicted of a crime or crimes and serving a sentence
of incarceration. While in prison, each defendant obtained, through an
attorney, case evidence for DNA testing and consented to a comparison
of the evidence-derived DNA to his own DNA sample. In each case, the
results showed that there was not a match, and the defendant was ulti-
mately set free.35

JUDGE REINSTEIN’S COMMENTS

The following is an excerpt from a commentary by Ronald S. Reinstein,
presiding judge, Criminal Department Superior Court of Arizona
Maricopa County, about the NIJ research report titled Case Studies in
Use of DNA Evidence.
This report is an excellent example of the marriage between science and
law and of the invaluable resource that DNA evidence has become in the
forensic field. When justice can be served in such dramatic fashion by
the exoneration of previously adjudged guilty individuals, science dem-
onstrates its practical effect.
Yet the 28 cases cited in the report relate only to individuals released
from prison because of DNA testing. Vastly more far-reaching in the
long run is the use of DNA typing both to exclude some suspects who
otherwise might be charged and to identify many other suspects who
might not have been charged but for the DNA typing.
What is frustrating to many who are excited about the possibilities
of the use of DNA in the forensics area is the slow pace it is traveling
on the road to admissibility. Many jurisdictions do not have sufficient
funds to establish their own laboratories or to send to private laborato-
ries items of evidence for typing. Laboratories that perform testing often
have backlogs measured in months. Courts, prosecutors, and defense
counsel impose a great burden on laboratories’ time in the usual discov-
ery battles that occur whenever a new technique arrives on the forensic
scene.
It is interesting to observe how quickly some DNA-evidence oppo-
nents embrace the science when it benefits certain defendants’ interests
but how defensive they become when the evidence points toward other
defendants. But this is not unique to DNA evidence. It is the responsi-
bility of the court to promote the search for truth. If that search can be
84 Law and Society: An Introduction

assisted by science that can give reliable results, the whole system as well
as society benefits.
It is also the responsibility of the court to try to prevent juror con-
fusion caused by lawyers and experts who sometimes seem unable to
explain scientific evidence in language the jury understands.
The future should be brighter as the technology improves so that the
process of DNA typing will likely become much quicker, less complex,
and less expensive. The battle of the experts, it is hoped, will also subside
eventually, especially in the confusing area of the statistical meaning of
a match.
The conflict between various forensic experts, population geneticists,
and statisticians on “the meaning of a match” is a prime example of how
science and the law sometimes do not mesh, especially in jurisdictions
that follow the Frye test of general acceptance in the scientific commu-
nity. The numbers being bandied about by various experts are almost
beyond comprehension for trial jurors.
It seems logical to allow relevant, reliable, qualitative expert opin-
ion—for example, that the probability of a random match in DNA test-
ing is extremely remote given a reliable multilocus match. Likewise,
experts should be able to testify from their experience about whether
they are aware of random matches at four or five loci of unrelated indi-
viduals, and whether one evidence sample matches another to a rea-
sonable degree of scientific certainty. There is a serious question about
whether DNA-match testimony should be treated any differently from
that of fingerprints, bite marks, hair and fiber samples, ballistics, shoe
prints, and the like.
Restrictions currently imposed in some jurisdictions on the use of
DNA evidence unreasonably divest such evidence of its compelling
nature. If our justice system’s goal is the continuing search for truth,
as evidenced by the results of the study described in this report, then a
similar argument can be made for the admissibility of relevant and reli-
able DNA-match testimony in our courts.

Source: NIJ Research Report Document #161258, June 1996.

Policy and Evaluation Research

The impact of law and society research is probably most profound in the area
of policy research. Since law by its very definition is governmental social con-
trol, it is understandable that social scientists are interested in how legislation
and litigation influence the lives of citizens in our society. Equally important
to researchers is how social events dictate the development of social policies.
Social Research Methods 85

In law and society research, policy research is closely aligned with pro-
gram evaluation and policy analysis. The focus of this type of inquiry is to
create an information base of prior successful actions that can be useful when
choosing a course of action to remedy problem situations. The ultimate goal
is to understand how to best confront a problem that requires an immediate
response to some social phenomenon. Consider, for example, prosecutor-led
anti-gang programs that have been implemented to target violent, youthful
offenders. The Street Terrorism Enforcement and Prevention (STEP) Acts in
California, Florida, Georgia, Illinois, and Louisiana provide for sentencing
enhancements and civil forfeiture of street gang assets and criminal pro-
ceeds.36 This special legislation enhances the prosecutor’s ability to aggres-
sively prosecute gang-related cases. It has been suggested that prosecutors
who function in states without similar gang prosecution enhancements
could work either to adopt legislation or to amend the existing criminal state
statute to add gang offenses.37 And, in fact, 14 states have undertaken the
latter approach by adding sentencing enhancements to their statutes rather
than creating new gang offenses.38
Evaluation is a method undertaken to effect the development of policy,
to fashion the design of social interventions, and to improve the delivery of
social programs. The type or scope of the evaluation varies, depending on
those issues to be addressed. In one instance, evaluation research is con-
cerned with analyzing the worth of existing laws as they pertain to social
programs. Worth in most instances is determined by whether the law has
facilitated the intended goals of the social program. Since many of the social
programs are publicly funded, value becomes an equally important concern
of evaluation research. Value is typically determined by whether the pro-
gram is operated with economic prudence. On the other hand, evaluation
research may be aimed at providing useful information to a variety of deci-
sion makers who have a vested interest in the program. Evaluations can be an
important tool in improving legislation so that the quality of a program can
be improved and the delivery of a social program can be enhanced. Consider
the following comments made by Judge Cindy Lederman of the Juvenile
Court in Miami-Dade County, Florida.39

Reliance on scientific research is key to realizing the promise of the juvenile

court. Decades of research in juvenile and criminal justice, developmental
psychology, epidemiology, and other disciplines, including evaluations of
promising program interventions, should inform policymaking, decision
making, and the development of programs and treatments.
These factors underscore the need for rigorous program evaluations across
the spectrum of child welfare and juvenile justice services to ensure that inter-
ventions benefit children in society and do not produce unintended effects
that may even increase the risks of delinquent behavior. The juvenile justice
86 Law and Society: An Introduction

system must be vigilant about the quality of its program, services, and service
providers and must work with researchers to design an agenda that will make
a positive contribution to the body of evaluation research.

THE DEPENDENCY COURT INTERVENTION

PROGRAM FOR FAMILY VIOLENCE
The Dependency Court Intervention Program for Family Violence, a
national demonstration project in Miami, Florida, provides an exam-
ple of interdisciplinary work in jurisprudence. Funded by the Violence
Against Women Office, Office of Justice Programs, U.S. Department of
Justice, this demonstration project seeks to address the co-occurrence of
child maltreatment and family violence in a juvenile setting.39aAdvocates
are provided to battered mothers of dependent children; assessment
instruments have been designed to measure the extent and impact of
violence on children; and collaboration between the child welfare and
domestic violence community has been fostered as the foundation of a
communitywide approach to handling child abuse cases in which other
forms of family violence are also present.
Because infants and toddlers can tell the court about their develop-
ment through their actions, an assessment for use with children from
1 to 5 years old has been developed through this program, with assis-
tance from Joy Osofsky, Ph.D., professor of pediatrics and psychiatry
at Louisiana State University Medical Center. Parents and dependent
children are videotaped in a number of structured and unstructured
interactions. The developmental and cognitive functioning of the
young child and his or her bonding and attachment with a caregiver are
assessed. Preliminary data indicate that, while many of these depen-
dent children are developmentally delayed, the developmental delays
often go undetected. The Miami court is now able to reach these chil-
dren earlier, enhancing their ability to develop in a healthy, age-appro-
priate manner.
The program is undergoing a rigorous process and outcome evalu-
ation. A quasi-experimental research design is being used to develop
data on the needs of children and their families when multiple forms
of family violence are present. The demonstration project already has
resulted in institutional reform intended to enhance child safety.

Source: Cindy S. Lederman. (1999). The juvenile court: Putting

research to work for prevention. Journal of Office of Juvenile Justice
and Delinquency Prevention, 6(2), 27–28.
Social Research Methods 87

There is no special research design or methodology for the collection

and analysis of data when conducting evaluation research. Performing
a program evaluation is still research and therefore employs research
designs similar to other types of research. Two of the more popular
methods used to conduct program evaluations are the preexperimental
and quasi-experimental designs. Within the preexperimental design, the
one-shot case study, which involves a single group that receives the pro-
gram and then is measured, is possibly the most popular design utilized
by evaluators. When quasi-experimental methods are employed, the
time-series design, which involves making multiple measures on a single
group both before and after the group is exposed to the program, is a
common design choice of evaluators. A catalogue of some of the analytic
approaches that have been used in evaluation studies is provided by the
Bureau of Justice Assistance in the publication Evaluating Drug Control
and System Improvement Projects: Guidelines for Projects Supported by
the Bureau of Justice Assistance.40

Differentiating Between Social and Criminal Justice

The judicial discretion of the court, the charging decisions of the prosecu-
tion, and the plea-bargaining dealings of the defense are only three examples
of the many areas within the justice system that are of constant interest to
researchers. However, the implementation of sociological research methods
to the evaluation of court processes can be problematic. This is particularly
true when the research interest is aimed at the criminal justice system. The
reason for this is because the legal system is designed to make determina-
tions about justice on a case-by-case basis. As a result, sociology often oper-
ates in the aggregate, focusing on outcome rather than process. Therein lies
an important factor when considering the limitations of the sociological
approach to the evaluation of court outcomes.
Another factor to consider is the complexity of the justice system. Our
system of justice is so complex that the creation of models of the system, ones
that can be manipulated to determine effects, is fundamental to our under-
standing of how the process of justice works and how it should be researched.
Consider the following description of the criminal justice system:

The criminal justice system is an enormous complex of organizations.

Subjecting such a system to scientific investigation normally involves
making changes in its operations in order to observe the effects directly.
Whenever practical, this kind of controlled experimentation is clearly
the best kind. But experimentation inside a system is often impractical
and even undesirable, not only because the cost could be prohibitive, but
88 Law and Society: An Introduction

because normal operations are frequently too critical to be disrupted.

Instead, the scientist may be able to formulate a mathematical descrip-
tion or model of the system in order to illuminate the relationship among
its parts. System analyses involve construction and manipulation of such
mathematical models in order to find out how better to organize and
operate the real life systems they represent.41

The courts are regularly called upon to solve social problems. In fact,
there is generally little distinction between social and criminal justice. For
example, when alcohol abuse cases involve drunk driving, the criminal court
has jurisdiction. We turn to the law to seek the best possible way of dealing
with most social issues. We look to the law for the truth to answer many of
the problems that occur in society.
On the other hand, there are times when social justice and the law are
in conflicting positions. Public opinion, political influences, religious beliefs,
and other factors can influence what society will accept as justice. When this
occurs, justice and the truth are not viewed as the same.

GUN CONTROL
The following narrative provides a chronicle of the events of the Sandy
Hook Elementary School shooting where 20 children and 6 adults were
killed. Subsequent to this horrific event, strengthening gun control laws
became the focus of major headlines:

• Should public opinion be taken into account when analyzing

the applicability of an existing law?
• When social justice issues surface that are in conflict with legal
precepts, which should take precedence?
• Should matters of social justice be used for political gain?

Twenty children and six adults were shot and killed at the Sandy Hook
Elementary School in Newtown, Connecticut, on December 14, 2012.
Before heading to the school, the gunman (20-year-old Adam Lanza)
killed his mother, Nancy Lanza, at the home they shared. Lanza took
three legal guns from his and his mother’s residence and went to
the elementary school, where his mother had worked as a substitute
teacher. Classes were underway at the school when he arrived. It was
reported that earlier in the year, the school principal, Dawn Lafferty
Hochsprung, had ordered a new security system installed that required
Social Research Methods 89

visitors to be visibly identified and buzzed in at the front door. As part

of the security system, the school locked its doors each day at 9:30 a.m.
On December 14, the door was locked when Lanza arrived. Authorities
now know Lanza shot an entrance to gain access into the building.
Once inside Lanza used semiautomatic weapons to murder the children
and teachers.
On one side of the debate over gun control was an immediate social
call for gun restrictions. On the other side was a call for mental health
reform and expanded concealed-carry and gun rights. The Second
Amendment to the Constitution provides that the citizenry has the
right to bear arms. What does this mean exactly? Many question the
ability of citizens to carry assault rifles and high-capacity magazines,
whereas others claim that the right to bear arms extends to these very
items.
The social and criminal justice forces both seek the safety of chil-
dren and individuals within the United States. The issue that both are
faced with is what works with regard to gun violence? The National
Rifle Association (NRA) suggested that all schools hire armed secu-
rity guards to protect our children. In contrast, the Brady Campaign to
Prevent Gun Violence, one of the nation’s leading gun-control groups,
urged the president to look into tougher background checks on gun
purchases. This issue is a good example of social and criminal justice
both wanting a safer community; however, the ends used to get there
are different.

Questions in Review
1. Describe the general structure of the scientific method.
2. What is the difference between quantitative and qualitative research?
3. What are the three classic experimental designs? How do they differ?
4. Why are quasi-experimental methods popular when conducting
social research?
5. Participant observation is distinguished in terms of the degree in
which the researcher interacts with individuals in their environ-
ment. Give an example of a situation in which it would be appropri-
ate for the observer to function as (a) complete observer, (b) observer
as participant, and (c) complete participation.
6. How do researchers make records of field observations?
7. Develop two semistructured interview questions that could be used
to survey citizens’ attitudes toward the subject: death row inmates
and the court appeals process.
90 Law and Society: An Introduction

8. What are the advantages and disadvantages of mailed surveys?

9. Are social and criminal justice the same?
10. What lessons can be learned from the Sandy Hook Elementary
school shooting?

Key Terms
Scientific method Simulation research
Methodology Survey research
Experimental research Personal interviews
Pretest-posttest control group Telephone interviews
Solomon four-group Random digit dialing
Posttest-only-control group Mail surveys
Quasi-experimental research Pretest-posttest design
Nonrandomized control group Time-series experiments
Historical research Interrupted time-series design
Archival research Equivalent time-sample designs
Case studies   policy research
Evaluation researsh Field experiments
Participant observation

Endnotes
1. G.J. Bayens & C. Roberson. (2000). Criminal justice research: Theory and prac-
tice. Incline Village, NV: Copperhouse Publishing.
2. V. Aubert. (1973). Researches in the sociology of law. In M. Barkum (Ed.), Law
and the social system. New York, NY: Lieber-Atherton.
3. V. Aubert. (1973). Researches in the sociology of law. In M. Barkum (Ed.), Law
and the social system. New York, NY: Lieber-Atherton.
4a. Probabilism is defined as the belief that effects will most often occur when cer-
tain causes are present, but not in every single case.
4b. The term in dubio pro reo means that in a doubtful case, the gentler course is to
be pursued.
5. V. Aubert. (1973). Researches in the sociology of law. In M. Barkum (Ed.), Law
and the social system (pp. 51–52). New York, NY: Lieber-Atherton.
6. N.S. Davis & S.J. Wells. (1996, February). Justice system processing of child abuse
and neglect cases (Document 173066). Washington, DC: National Institute of
Justice.
7. A. Podgorecki. (1974). Law and society. Boston, MA: Routledge & Kegan.
8. R. Davis, M. Henley, & B. Smith. (1999). Victim impact statements: Their effects
on court outcomes and victim satisfaction in New York, 1988–1990. Ann Harbor,
MI: Inter-University Consortium for Political and Social Research.
Social Research Methods 91

9. L. Sherman & R. Berk. (1984). Minneapolis domestic violence experiment.

Washington, DC: Police Foundation; L. Sherman & R. Berk. (1984). Specific
deterrent effects of arrest for domestic assault. American Sociological Review,
49(20), 261–272.
10. L.W. Sherman & E.G. Cohn. (1989). Impact of research on legal policy: The
Minneapolis domestic violence experiment. Law and Society Review, 23(1),
117–144.
11. J. Monahan & L. Walker. (1990). Social science in law: Cases and materials (2nd
ed.). Westbury, NY: Foundation Press
12. Tomislav v. Kovandzic. (2001). Impact of Florida’s Habitual Offender Law on
Crime. Criminology, 39(1), pp. 179–203.
13. R. Bogdan & S.J. Taylor. (1975). Introduction to qualitative research methods: A
phenomenological approach to the social sciences. New York, NY: Wiley.
14. Bureau of Justice Assistance. (1997). Trial court performance standards and
measurement system implementation manual (Document 161567). Rockville,
MD: National Institute of Justice.
15. F.E. Hagan. (1997). Research methods in criminal justice and criminology (4th
ed.). Needham Heights, MA: Allyn and Bacon.
16. S. Heller. (1997). A sociologist who went undercover. The Chronicle of Higher
Education, 43(31), 10.
17. J.H. Davis, R.M. Bray, & R.W. Holt. (1977). The empirical study of decision pro-
cesses in juries: A critical review. In J.L. Tapp & F.J. Levine (Eds.), Law, justice,
and the individual in society: Psychological and legal issues. New York, NY: Holt,
Rinehart, and Winston.
18. J.Q. Wilson. (1996). Reading jurors’ minds. Commentary, 101(2), 45–48.
19. J.B. Kessler. (1975). The social psychology of jury deliberations. In R.J. Simon
(Ed.), The jury system in America: A critical overview. Beverly Hills, CA: Sage
Publications.
20. Halpin, B. (August 1999). Simulation in Sociology. American Behavioral
Scientist, Vol. 42, No. 10, pp. 1488–1508.
21. G.J. Bayens & C. Roberson. (2000). Criminal justice research: Theory and prac-
tice (p. 135). Incline Village, NV: Copperhouse Publishing.
22. Watts, Harrison. (Fall, 2011). Exploring the separation of powers doctrine in
Oklahoma: A case study of the lack of enforcement of the adultery statute.
Professional Issues in Criminal Justice, Vol. 6, No. 3–4 pp. 59–73.
23. S.H. Decker. (1996). Collective and normative features of gang violence. Justice
Quarterly, 13(2), 243–264.
24. B.E. Smith & S. Goretsky Elstein. (1993, September). The prosecution of child
sexual and physical abuse cases. Washington, DC: American Bar Associations
Center on Children and the Law.
25. W.A. Bogart & N. Vidmar. (1990). Problems and experiences with the Ontario
civil justice system: An empirical assessment. In A. Hutchinson (Ed.), Access to
justice: Bridges and barriers. Toronto, ON, Canada: Carswell.
26. E.C. Wiggins, M. Treadway Johnson, G.A. Mahin, & R.J. Niemic. (1996). Survey
on the federal rule of bankruptcy procedure. Washington, DC: U.S. Government
Document.
27. A.V. Cicourel. (1964). Method and measurement in sociology. New York, NY:
Macmillan.
92 Law and Society: An Introduction

28. J.A. Inciardi, A.A. Block, & L.A. Halowell. (1977). Historical approaches to crime:
Research strategies and issues. Beverly Hills, CA: Sage.
29. J.C. Burnham. (1999). Assessing historical research in the behavioral and social
sciences. Journal of the History of the Behavioral Sciences, 35(3), 225–226.
30. L.C. Newmark. (1995). Parental drug testing in child abuse and neglect cases: The
Washington, DC, experience. Washington, DC: National Institute of Justice.
31. B. Johnson, D. Li, & N. Websdale. Florida mortality review project (Executive
summary). Washington, DC: National Institute of Justice.
32. L. Corti. (1993). Using diaries in social research. Social Research Update,
1993(2).
33. A.M. Orum, J.R. Feagin, & G. Sjoberg. (1991). The case or the case study. Chapel
Hill, NC: University of North Carolina Press.
34. M.D. Gall, W.R. Borg, & J.P. Gall. (1996). Educational research: An introduction
(6th ed.). White Plains, NY: Longman.
35. E. Connors, T. Lundregan, N. Miller, & T. McEwen. (1996). Case studies in use
of DNA evidence (Document 161258). Washington, DC: National Institute of
Justice.
36. H.P. Gramckow & E. Tompkins. (1999). Enabling prosecutors to address drug,
gang, and youth violence. Washington, DC: Office of Juvenile Justice and
Delinquency.
37. H.P. Gramckow & E. Tompkins. (1999). Enabling prosecutors to address drug,
gang, and youth violence. Washington, DC: Office of Juvenile Justice and
Delinquency.
38. C. Johnson, B. Webster, & E. Connors. (1995). Prosecuting gangs: A national
assessment (Research in Brief #151785). Washington, DC: Office of Juvenile
Justice and Delinquency.
39. C.S. Lederman. (1999). The juvenile court: Putting research to work for preven-
tion. Journal of Office of Juvenile Justice and Delinquency Prevention, 6(2), 25.
39a. Lecklitner, G., Malik,N., Aaron, S., and Lederman, C.S. (April 1999). Dependency
Court Intervention Program for Family Violence. Child Maltreatment, Vol. 4,
No. 2, pp. 175–182.
40. National Institute of Justice. (1992). Evaluating drug control and system improve-
ment projects: Guidelines for projects supported by the Bureau of Justice Assistance.
Washington, DC: Prepared for the U.S. Department of Justice by Abt Associates.
41. President’s Commission on Law Enforcement and Administration of Justice.
(1967). Task force report (pp. 53–54). Washington, DC: U.S. Government
Printing Office.
Legal Structures
4
Chapter Objectives

After studying this chapter, you should be able to

• Describe the relationship between law and society

• Explain the organization of the legal system in the United States
• Discuss how the U.S. legal system functions
• Define and discuss the responsibilities and duties of the key person-
nel in our legal system
• Explain why the legal system is inherently involved with governmen-
tal authority
• Discuss how the laws are enforced
• Explain the legislative process

Introduction

The relationship between law and society is more fully appreciated when
we possess a sound understanding about the social organization of law.
The legal process is inherently involved with authority and cannot be easily
separated from the institutions that execute it. Dynamic associations take
place between legislating, interpreting, and enforcing the law. The func-
tioning of law is a process whereby some people render decisions about the
law, others are responsible to carry out the law, and all are expected to obey
the law.
In this chapter, we are concerned with the organization of the law. We
start by identifying and examining the formal structure of the local, state, and
federal court systems. Next we focus on the lawmaking function and respon-
sibility of legislative bodies. In the final section, we discuss the enforcement
of law and the punishment aspect of our legal structures.

93
94 Law and Society: An Introduction

Courts

The judicial system in the United States is comprised of the state courts, cre-
ated by state constitutions and legislatures, and the federal courts, created by
the U.S. Congress under its constitutional powers. In basic terms, a court is
“an organ of the government, belonging to the judicial department, whose
function is the application of the laws to controversies brought before it.”1 It is
the place where judicial proceedings are held by persons who are assembled
for the administration of justice; these include the judge, court clerk, court
bailiff, court reporter, jurors, and attorneys. Likewise, the phrase “the court”
is commonly used to refer to the judge or judges themselves.
The role of the court is to decide the rules of law applicable in a particu-
lar case and to settle controversies between parties. The judicial process is
carried out by the courts and consists of interpreting the laws and applying
them in a just and fair manner to all cases arising in litigation. In general, the
courts do not give advisory opinions except when a state constitution autho-
rizes the state supreme court to render an advisory opinion to the legislature
with regard to the constitutionality of a statute.

Court Jurisdiction
Court jurisdiction is defined as the authority or power of the court to hear
matters of controversy or dispute. Since both state and federal courts exist,
initiating the judicial process begins with the decision of which court
should take the case. Some courts have exclusive jurisdiction over certain
matters (e.g., bankruptcy court) when only one court is empowered by
law to hear the case in question. But in some situations, there may be con-
current jurisdiction in which authority coexists between the two or more
courts. When this occurs, the plaintiff has a choice of courts in which to
initiate litigation. Federal and state statutes govern the nature of the vari-
ous court jurisdictions.
Readers often get confused over the differences between venue and juris-
diction. Venue refers to the geographical locale where the trial will be held,
and jurisdiction refers to the power of a court to act over the parties and the
subject matter in dispute.
Court jurisdiction is either original or appellate. A court of original
jurisdiction (trial court) has the authority to receive the case when begun,
to try the case, and to render a decision based on the presentation of facts
and applicability of law. Appellate jurisdiction, which is set by constitution
or statute, is the authority to review, overrule, or revise the action of a lower
court. The appellate court hears complaints of error committed by an infe-
rior court, whose judgment or decision the appellate court is asked to correct.
Legal Structures 95

The jurisdictions of courts are limited by constitutions or statutes.

Small-claims court, for instance, is a court of limited jurisdiction in which
the amount in dispute can not exceed a fixed amount. Another example of
a court of limited jurisdiction is municipal courts, which have jurisdiction
over minor criminal matters, such as ordinance violations and misdemeanor
criminal cases. Other examples of courts of limited jurisdiction are juvenile
courts, probate courts, and county district courts.

Court Organization
The court system in the United States at both the state and federal levels is
hierarchical. At the extreme top of the pyramid are supreme courts or courts
of last resort, which are appellate courts. Below the supreme courts are the
courts of appeals, which are courts that serve as intermediate appellate courts.
Intermediate appellate courts function to hear the initial appeals of trial
courts. They may also serve as courts of original jurisdiction when defined by
constitution or statute. Trial court is typically the starting point for most court
cases. The decisions of trial courts are subject to review by appellate courts.

The State Court System

The judicial power of the state court system is limited by the due process
clause of the Fourteenth Amendment of the U.S. Constitution, which states:

No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.2

It is in the state courts that most of the legal disputes that surface in the
lives of citizens are resolved. Disputes resolved by state courts include traffic
and criminal cases as well as civil cases, such as domestic relations, personal
injury and property damage, and real estate. Litigants may choose between
a jury trial or bench trial. In a bench trial, the judge determines the facts as
well as the law. In a jury trial, a jury determines the facts in accordance with
the judge’s instruction on the law. In a criminal case, then, the jury decides
whether the defendant is innocent or guilty. In a civil case, the jury decides
whether the defendant is liable to the plaintiff.
In most states, the courts of general jurisdiction are organized into dis-
tricts, sometimes called circuits, superior courts, or the court of common
pleas. Depending on the caseload and geography, the district may embrace
from one to many counties and employs from one to many judges and support
staff. For example, in Kansas, there are 31 judicial districts. The Third Judicial
District covers only one urban county (Shawnee County) and employs 14
96 Law and Society: An Introduction

district court judges. The Fourth Judicial District covers four rural counties
(Anderson, Coffey, Franklin, and Osage Counties) and employs only three
district court judges.
State district courts are courts of record. This means that their proceed-
ings and decisions are documented in a written record that is maintained by
the clerk of the district court. Records of court decisions and the processes
that led to those decisions are extremely important because such records are
needed to challenge a decision in an appellate court.

Courts of Limited and Specific Jurisdiction

Some state courts are courts of limited action and have exclusive jurisdic-
tion over specific common-law claims. As an illustration, we refer again to
small-claims courts. Small-claims court cases are limited to a monetary
amount for damages, such as $5,000 or $10,000, and lawyers are normally
prohibited from representing the litigants. Also, no juries and no appeals
are permitted. Likewise, traffic courts are courts of limited action. These
courts ordinarily handle cases involving citations for traffic violations.
While the traffic court is not a court of record, it is sometimes possible
to appeal a traffic court’s decision, depending on the statute that created
the court.
Another example of a court of limited jurisdiction is probate court. The
jurisdiction of probate courts is generally restricted to the settlement of
estates, wills, and guardianship of minors and legally incompetent persons.
In some states, the probate court also has jurisdiction over the adoption of
children and other matters such as legal name changes. Appeals from pro-
bate court may be taken to either the trial court of general jurisdiction or the
intermediate appellate court and are bound by a time limit fixed by statute.
A court of specific jurisdiction is domestic relations court. Domestic rela-
tions courts have exclusive jurisdiction over divorce, separation, annulment,
support actions, suits involving temporary custody of children, and adop-
tion. In some cases, the functions of the juvenile and family-law courts are
combined, and the court has original jurisdiction over all of these matters.
Perhaps the best example of a court of specific jurisdiction is juvenile
court. Most states have one or more juvenile courts that handle cases spe-
cific to minors under the age of 18 years old. Juvenile courts standing alone
ordinarily have exclusive jurisdiction over children in need of care, which
includes neglected, dependent, and abused children. Likewise, the juvenile
court hears matters that pertain to delinquent acts committed by children.

State Court of Appeals

In the state court system, the next step up from the court of general original
jurisdiction is the intermediate appellate court. The purpose of such a court
is to relieve the burden on the state court system by lessening the caseload
Legal Structures 97

of the supreme court. Procedurally, in all states, a defendant convicted in a

criminal case is entitled to one appeal. Likewise, in civil cases, the appellate
court must review the verdict upon demand of the party aggrieved in the
trial court. Where an intermediate appellate court exists, appeals go directly
to that court, with only a few exceptions.3
The highest court in a state is usually called the supreme court. A party
aggrieved by the decision of the intermediate appellate court can petition
the state supreme court to review the case. Such a petition is called a “writ of
certiorari.” However, the supreme court has the discretion to refuse to review
any case. In short, while the intermediate appellate court must review every
appeal, the supreme court is not obligated to hear the case. The supreme
court in most states is given supervisory control over and appellate jurisdic-
tion from all other courts in the state judicial system, limited only by the
state constitution and statutes. In a few states that do not have an intermedi-
ate appellate court, appeals are made directly to the supreme appellate court.

Federal Court System

The federal court system is prescribed by Article III of the U.S. Constitution.
The jurisdiction of the federal court system consists of: the U.S. Supreme
Court, 13 federal courts of appeals, a large number of district courts that
serve as courts of general jurisdiction, and a number of specialized courts
created by the U.S. Congress under the “necessary and proper clause” of
Article I.

U.S. District Courts

The U.S. District Courts are federal trial courts with general federal juris-
diction. Each state has at a minimum one federal district court, while some
larger states have several. A total of 92 federal district courts exist, in addition
to one court in the District of Columbia and one court in Puerto Rico. There
are 649 federal district court judges, the number of which is established by
statute. Ordinarily, one judge hears a case, but in certain cases the law either
requires or allows a three-judge panel to hear the case.
Each federal district court employs: a U.S. district court clerk, U.S. attor-
ney, U.S. marshal, and one or more U.S. magistrates, bankruptcy judges,
probation officers, and court reporters who serve the U.S. district courts.
Magistrates are federal judicial officers who serve under the general super-
vision of the federal district, but who also have some responsibilities as
defined in the Federal Magistrate Act of 1979. These responsibilities include
the power to conduct some trials, to enter sentences for misdemeanor cases,
to conduct hearings, to hear and determine pretrial matters pending before
98 Law and Society: An Introduction

the court, and to provide administrative oversight and mediation for certain
types of lawsuits.
The jurisdiction of the federal district courts is set forth in the U.S. Code.
Among the types of cases tried are those involving crimes against the United
States and cases involving diversity of citizenship (i.e., cases in which a citi-
zen of one state brings a suit against a citizen of another state). Also, these
courts of original jurisdiction handle maritime cases, cases involving the
enforcement of orders of federal administrative agencies, and civil cases aris-
ing under federal statutes or the U.S. Constitution.
The U.S. Congress, under the “necessary and proper” clause of Article
I, creates special courts from time to time to deal with particular kinds of
cases that are not permanently part of the federal court system. Among these
courts are the District of Columbia’s local courts, the superior court, and
the District of Columbia Court of Appeals. Other courts include the U.S.
Court of Appeals for the Armed Forces, which is concerned exclusively with
military criminal law, and the territorial courts, which function as district
courts for the territories of Guam, the U.S. Virgin Islands, and the Northern
Mariana Islands.

U.S. Courts of Appeals

The U.S. courts of appeals were created in 1891 to relieve the U.S. Supreme
Court of the task of considering all appeals for cases originally decided by
the federal trial courts. They are empowered to review the final decisions of
federal district courts, except when direct review by the U.S. Supreme Court
is called for by statute. The appeals courts are also empowered to review and
enforce orders of many federal administrative agencies. Decisions of the
appeals courts are final but subject to discretionary review by the Supreme
Court. Each of the 50 states is assigned to one of 11 judicial circuits. There is
an additional circuit for the District of Columbia, and another for the Federal
Circuit. There are approximately 167 appellate judges, who are appointed by
the president, with confirmation from the U.S. Senate, and sit for life. U.S.
courts of appeals usually sit in panels of three judges, but may expand to a
larger number in certain cases. They are then said to be sitting en banc, with
all judges present.

Supreme Court of the United States

The U.S. Supreme Court was created in 1790 in accordance with Article III,
Section 1, of the U.S. Constitution. The U.S. Supreme Court consists of the
chief justice of the United States and eight associate justices. The president of
the United States is empowered to nominate the U.S. Supreme Court justices,
and appointments are made with the advice and consent of the Senate.
Legal Structures 99

In Article III, Section 2, the U.S. Constitution defines the original and
exclusive jurisdiction of the Supreme Court as (a) all controversies between
states and (b) all actions or proceedings against ambassadors or other public
ministers of foreign states or their domestic servants, not inconsistent with
the law of nations.4 The court has original but not exclusive jurisdiction over
(a) all actions or proceedings brought by ambassadors or other public minis-
ters of foreign states or to which consuls or vice consuls of foreign states are
parties, (b) all controversies between the United States and a state, and (c)
all actions or proceedings by a state against the citizens of another state or
against aliens.
The U.S. Supreme Court only occasionally hears cases in original juris-
diction. Its principal function is as an appellate court, reviewing cases from
the U.S. appeals courts, either by writ of certiorari granted to a petitioner
who is party to a civil or criminal case or by certification of a question of
federal law in a civil or criminal case. Both of these appeals are granted at
the Court’s discretion. Typically, there is a very limited right of direct appeal
from a three-judge district court panel. The majority of U.S. Supreme Court
cases are heard by way of the writ for certiorari.
The U.S. Supreme Court may also review, by petition of certiorari, the
final judgment of the highest court of a state if: (a) there is a question regard-
ing the validity of a treaty or statute of the United States, (b) the validity of a
state statute has been challenged as being unconstitutional or illegal, or (c) a
title, right, privilege, or immunity is claimed under the Constitution or trea-
ties or statutes of the United States.
The U.S. Supreme Court convenes annually from the first Monday in
October until the end of June. The nine justices sit en banc, and it takes six
justices to constitute a quorum. The Supreme Court normally reviews fewer
than 200 cases each year. By contrast, it refuses to review nearly 2,000 cases
annually; the majority of its decisions consist of denials of certiorari to review
decisions of courts of appeals or state supreme courts.

Court Unification Movements

Starting with the state of Illinois in 1964, several states have attempted to reduce
expenditure of public monies by unifying their courts at the lower levels. For
example, in Illinois, all trial courts were consolidated into one level of courts.
A similar situation occurred in California, where many counties unified their
municipal and superior courts into one level of courts with general jurisdic-
tion to try all criminal and civil cases. The exception is that family law courts,
bankruptcy courts, and other specialty courts were not merged in some states
into the single court system. At the same time, there is a movement for the
establishment of drug courts to try drug cases and veterans’ courts to try vets.
100 Law and Society: An Introduction

Classifications of Law

Law is viewed in various ways and consequently can be classified differ-

ently. Often we think of law in terms of the system in which it operates.
Common law, for instance, is a system of jurisprudence that originated
in England that is based on written opinions that are binding on future
decisions of lower courts in the same jurisdiction. Civil law is a system
of legal science that originated under Roman emperor Justinian in the
sixth century A.D. and has evolved as a means of regulating private rela-
tionships between individuals. In addition to classifying law by systems,
other ways in which we think about law include: by source (constitu-
tional, statutory, and case law), by the parties involved (public, private,
and administrative law), by substance (civil and criminal law), and by
function (substantive and procedural law). Each of these classifications
is discussed in the sections that follow.

Common Law and Civil Law Systems

The principal systems of law in the United States are common law and the
civil law. In all states except Louisiana (which was originally based on the
French civil code), the common law system of England was adopted as the
general law of the state, except when a statute explicitly states otherwise.
Broad areas of the law, most notably relating to property, contracts, and torts,
are traditionally part of the common law. These areas of the law are mostly
within the jurisdiction of the states and, as such, state courts are the primary
source of common law. Thus, common law is used to fill in gaps. Common
law changes over time, and at this time, each state has its own common law
on various topics. Federal common law is primarily limited to federal issues
that have not been addressed by a statute.
The common-law system is based on precedent and the principle of stare
decisis. Although the legislative bodies at the state and federal levels enact
written statutes, and sometimes collect portions of those statutes into codes,
there is no formal, comprehensive code of common law. Instead, the com-
mon law is stated in court decisions, and it is changed or modified by subse-
quent cases or statutes.
Conversely, the civil law system may be traced back to the Roman law
from which most European law systems originated and is a codified system
of basic laws set out in codes. In the civil law system, the Code Civil is a
general statement of legal principles that is looked to in the interpretation
of statutes and cases, and civilian courts do not follow the principle of stare
decisis.
Legal Structures 101

Sources of Law: Constitutional, Statutory, and Case Law

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.5

Constitutional Law
Constitutional law is the fundamental law of the land. It contains the princi-
ples upon which the government is founded and regulates the divisions of the
sovereign powers. It defines basic principles of law that all other laws must
follow and delegates authority to various officials and agencies. The source of
this law is from people acting in their collective capacity as sovereign in the
nation or state in which they live and create constitutions.
The U.S. Constitution is the supreme law in America. No other federal or
state law, statute, or case may impose upon its provisions. It is divided into three
parts. The first component, Articles I through VII, divides governmental power
among the three branches of government (legislative, executive, and judicial)
and between the federal and state governments. It also describes the relation-
ships between the states and sets out the means for amending the Constitution.
The second section of the Constitution consists of the first 10 amend-
ments, which are referred to as the Bill of Rights. The first nine amendments
provide for and protect individual freedoms. The Fourth Amendment, for
example, establishes

the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched, and the persons
or things to be seized.6

Other similar amendments that have had a profound influence on the

criminal justice system include protection from self-incrimination (Fifth
Amendment), the right to speedy and public jury trials in criminal cases and
jury trials in civil cases (Sixth Amendment), and protection from cruel and
unusual punishment (Eighth Amendment).
The third part of the Constitution consists of the amendments that have
been added over the past two centuries. These amendments cover a wide range
of subjects that reflect social change in America. For example, the Thirteenth
Amendment abolished slavery. The Fourteenth Amendment granted the
equal protection of the laws and due process of law to all the citizens and
102 Law and Society: An Introduction

residents of the various states. The Fifteenth, Nineteenth, Twenty-fourth, and

Twenty-sixth Amendments extended the right to vote.
In addition to the U.S. Constitution, all states have constitutions, which
are generally more detailed than the U.S. Constitution. State constitutions
often give people within that state more rights than the same language con-
tained in the U.S. Constitution. Moreover, because of the supremacy clause
of the U.S. Constitution, no state can give its people fewer rights than those
in the U.S. Constitution.

Statutory Law
A primary source of law is statutory law. Statutes are enacted by the legisla-
tive branch of government (whether state or federal) to regulate areas within
the legislature’s jurisdiction. Under the U.S. and state constitutions, statutes
are considered the primary source of law in America (i.e., legislatures make
the law [statutes] and courts interpret the law [cases]).
Most state statutes are organized by subject matter and published in
books referred to as codes. Typically, a state has a civil code, a criminal code,
a welfare code, a probate code, a juvenile code, and many other codes deal-
ing with a wide variety of topics. Federal statutes are organized into subject-
matter titles within the U.S. Code (e.g., Title 11 for bankruptcy).
There are three classifications of statutes: personal, real, and mixed.
Personal statutes pertain to persons and treat property only incidentally.
Examples of personal statutes are laws that regard birth, legitimacy, freedom,
the fight of instituting suits, incapacity to contract, to make a will, to plead in
person, and the like. A personal statute is universal in its operation and is in
force everywhere. Conversely, real statutes are those that pertain to property
and that do not speak of persons, except in relation to property. The third
class of statutes is known as mixed statutes. Mixed statutes are those that
concern both persons and property collectively. In this sense, almost all stat-
utes are mixed, there being scarcely any law relative to persons that does not
at the same time relate to objects or things.
Each year, legislatures pass both new law and amended law. The exact
titles of the session laws (i.e., the collections of statutes passed in each leg-
islative session) vary, as do the titles given to the state law compilations.
In Kansas, for example, they are known as Kansas Statutes Annotated; in
Michigan, they are called Michigan Compiled Laws; and in North Dakota,
they are called the North Dakota Century Code. In the federal system, the
U.S. Code arranges federal statutes by subject under 50 titles, with the first
6 dealing with general provisions and the other 44 alphabetically arranged
from agriculture to war. The U.S. Code is updated annually, and a new set of
bound volumes is published every 6 years.
Legal Structures 103

Case Law
Another source of law is case law, which is law made by the courts. It is known
as case law because it derives from judicial decisions in legal cases rather than
from written statutes. This necessarily means that judges look for guidance
to the decision in a prior case that had similar facts. As courts decide and
report their decisions concerning particular suits, these cases become part
of the body of law and can be consulted in later cases involving similar prob-
lems. Cases are published in reports (such as United States Reports) that are
produced either by the government or a private publishing firm. Not all cases
are published.

Scope of the Law

Laws are often classified according to the scope of the law, i.e., on the par-
ties to whom they apply. We categorize law into two areas according to
their scope: private law and public law. Private law exists to govern the rela-
tionships between citizens. Disputes typically involve property, contracts,
and many other matters. Public law is concerned with regulating the rela-
tions of individuals among themselves and with the government. It is also
the branch of law that governs the organization and conduct of government
itself. Disputes involve the state or its agencies in a direct manner, and usu-
ally the state is the party bringing the suit to court. For example, in the
criminal law case of State of California v. John Smith, the plaintiff is cited
as the state.

Administrative Law
Administrative law is the body of law governing administrative agen-
cies (i.e., agencies created by the U.S. Congress or state legislatures, such
as the Social Security Administration and state social welfare agencies).
Administrative agencies administer law through the creation and enforce-
ment of regulations; most of these regulations provide some type of benefit
to applicants. Federal rules and regulations are first published chronologi-
cally in the Federal Register and then later organized by subject in the Code
of Federal Regulations.
Administrative hearings are considered informal, but they serve an
important purpose. Usually, an administrative law judge (ALJ) meets with
representatives from the agency and the applicant seeking benefits. The
applicant may choose whether or not to be represented by an attorney, and
many administrative agencies permit paralegal assistance, law students, or
law clerks to appear on behalf of applicants. Each side presents its evidence
104 Law and Society: An Introduction

and elicits testimony from its witnesses. The ALJ renders a decision, called an
administrative order, which may be subject to review by either a higher level
within the agency or by a court.
State governments also have administrative agencies that issue rules,
regulations, and rulings (i.e., state social welfare agencies). They are typically
part of an executive department of the state government. These agencies tend
to regulate areas not preempted by federal agencies, but they may also be
found in fields subject to both federal and state regulation.

Civil and Criminal Law

In addition to the scope of the law, the type of the dispute allows for further
distinctions to be made about cases that come before the court. Generally,
court cases are separated into two categories of law: criminal and civil.
Criminal law is imposed for any crime, including an act, omission,
or possession under the laws of the United States or a state government
that poses a substantial threat of personal injury. Criminal law prescribes
both what behaviors in society are unacceptable and what sanctions will be
imposed for committing such acts. A criminal action is prosecuted in the
name of the federal government (“The United States of America”) or the
state (“The People of the State”), because criminal behavior is considered
to be harming society as a whole. When the prosecutor pursues a criminal
case, the intent is to punish the offender. The major categories of crimes
are wrongful acts against persons (e.g., homicide, robbery, and assault),
against property (e.g., burglary, theft, and arson), and the possession, sale,
and manufacturing of drugs.
In a general sense, all other law is civil law (i.e., court proceedings that
are not criminal in nature). Civil law deals with acts that inflict injury on a
person or a person’s rights. Tort suits seek compensation, which is intended
primarily to compensate the injured party. This includes lawsuits by private
parties as well as those involving governments.
Civil law covers numerous areas, including real estate, domestic rela-
tions, partnerships, taxes, contracts, and wills and trusts. In some cases, suc-
cessful civil litigation can represent a significant turning point for culture in
society. For instance, lawsuits filed against major tobacco companies have
exposed the dangers of cigarette smoking. Similarly, civil litigation can have
an effect on companies that produce certain products. A McDonald’s restau-
rant in Albuquerque, New Mexico, for example, was the target of a lawsuit
filed by a patron after she was burned by coffee sold to her.
Legal Structures 105

DIFFERENCES BETWEEN CRIMINAL

AND CIVIL COURT CASES
• In a criminal case, the prosecutor is in charge of the case from
beginning to end. The prosecutor may file criminal charges
even if the victim doesn’t approve or refuses to file criminal
charges. Similarly, the prosecutor has the discretion not to
file criminal charges despite the victim’s desire that criminal
charges be filed. This method of beginning the case contrasts
with civil cases, where the injured party is the one who initiates
legal action.
• In a criminal case, if the defendant is convicted, he or she will
be required to pay a fine or be incarcerated, or sometimes both.
In a civil case, the party who is held responsible may have to
pay money damages or give up property, but the loser does not
go to jail or prison.
• In a criminal case, government-paid attorneys represent defen-
dants who want but can’t afford legal counsel. Parties in civil cases,
on the other hand, usually have to represent themselves or pay for
their own lawyers.
• In a criminal case, the prosecutor has to prove a defen-
dant’s guilt “beyond a reasonable doubt.” In a civil case, the
plaintiff has to show only by a “preponderance of the evi-
dence” (i.e., greater than 50%) that the defendant is liable
for damages.
• In a criminal case, the defendant is nearly always entitled to a
jury trial. A party to a civil action is entitled to a jury trial in
some types of cases, but not in others.

Sometimes, the same conduct may violate both criminal and civil
laws. A defendant whose actions violate both criminal and civil laws
may be criminally prosecuted by the state as well as sued civilly by
a victim for monetary damages. For example, in 1995, O.J. Simpson
was prosecuted for the murder of Ron Goldman and Nicole Brown
Simpson, his former wife. Simpson was acquitted of all crimi-
nal charges, but in a separate civil case, the victims’ families sued
Simpson for “wrongful death.” In 1997, a jury of 12 people unani-
mously decided that Simpson was liable (i.e., responsible) on all eight
counts regarding the victims’ deaths and ordered to pay compensa-
tory damages of $8.5 million.
106 Law and Society: An Introduction

Functions: Substantive and Procedural Law

As a final way of classifying law, we want to discuss features of substantive
law and procedural law. Substantive law involves the basis for a legal claim.
It consists of statutory and case law, thereby establishing the rights and
obligations upon which a dispute is based. Procedural law prescribes the
rules by which a person can secure his or her substantive rights. Therefore,
the rules of procedure exist in accordance with the substantive law that is
to be administered.
Although procedural law does not state the law, it outlines the proto-
col that must be followed in applying the substantive law. Procedural law
enables legal counsel to decide what venue is appropriate for the case (i.e.,
federal or state court). It establishes when a legal action must be filed, what
practice will be followed during the litigation, and what evidence can be
presented at trial.

BIG BROTHER IS WATCHING

In October 2012, the Atlanta City Council voted to approve the addi-
tion of 112 new security cameras, for a total of 762 cameras, to moni-
tor downtown Atlanta. The cameras were part of an effort to address
a crime problem that the council felt could threaten Atlanta’s tourism
and business growth while also intimidating students who attended
college downtown. The council noted that students had been victims
of countless robberies, burglaries, and assaults. The council failed to
address the issue that, by most accounts, crime was down in Atlanta,
with fewer than 100 homicides for the fourth year in a row, and major
felonies were down 5% that year and 16% since 2009. “This will give
us more eyes on the streets so police can respond more readily,” said
Councilman Michael Julian Bond, who chaired the public safety com-
mittee. “Having more eyes is a strong deterrent. Criminals don’t want
to be seen.”7
Does this level of surveillance violate our right to privacy when we visit
a city?

Participants

The legal process involves the dynamic interaction between four distinct
groups of participants. They are litigants, legal counsel, judges, and juries.
While we have previously alluded to these groups, the following discus-
sion is intended to present a brief description of the role that each has in the
Legal Structures 107

dispute-resolving process of the legal system. Additionally, we discuss the

role of the court manager, as it is suggested that such a participant is a neces-
sary component of the justice system.

Litigants
In disputes taken to court, there is a common belief that there will be a win-
ner and a loser. In criminal cases, for instance, when the government brings
charges against the defendant, a guilty verdict indicates that the prosecution
wins the case. If the defendant is found not guilty, then the government essen-
tially loses the case. In civil matters, the plaintiff files suit against the respon-
dent, which is also the term to designate the person responding to an appeal.
A judgment usually denotes a winner and loser, but where money is
involved, it’s common for attorney fees and other costs of litigation to eat up
whatever award is given to the winning side. And even if there is a substantial
judgment, it may be difficult for the plaintiff to collect. Consequently, it’s not
unusual for a civil case to end up with both sides experiencing large out-of-
pocket expenses.

Counsel
Counsel is the term used to describe an attorney who advises and represents
a party in a legal proceeding. We generally think the role of counsel is to give
advice to another (i.e., what is the prudent thing to do). Counsel also encom-
passes those attorneys that represent the government in legal actions when
some harm has been caused to society.
Prosecutors are lawyers who investigate and try criminal cases. Typically
known as a district attorney, state’s attorney, or U.S. attorney, these legal
officials prosecute criminal defendants in the name of the government.
Prosecutors are either public officials acting in their official capacity or pri-
vate counsel that has been appointed to the role of special prosecutor.
The prosecutor’s role is central in processing criminal cases and therefore
requires a constant positive relationship with police, judges, and politicians
within the jurisdiction in which the judicial system exists. Prosecutors cul-
tivate and maintain good relationships with the police to ensure that crimi-
nal law is enforced in accordance with the policies of the prosecutor’s office.
Prosecutors also maintain a positive relationship with judges in order to
influence bail, sentencing, and other judicial decisions that are made during
the prosecution of a criminal defendant. Finally, prosecutors rely on elected
officials at the local, state, and federal levels to adequately fund criminal jus-
tice agencies. Consequently, prosecutors are sensitive to the law enforcement
priorities set by politicians who control budgetary decisions.
108 Law and Society: An Introduction

Defendants who are charged with a crime and face the possibility of
being imprisoned undertake a major financial expense to obtain the legal
representation of a defense lawyer. In the legal system, people who are indi-
gent qualify for the free or reduced-fee services of a public defender or court-
appointed attorney. Criminal defense lawyers perform many functions in the
legal system. For example, defense counsel negotiates “plea bargains” with
prosecutors, often arranging for reduced charges and lesser sentencing. This
occurs as a trade-off for a plea of guilty or nolo contendere, which translates
to “no contest” and has the same effect as a plea of guilty, as far as the crimi-
nal sentence is concerned.
Occasionally, a criminal defendant decides to represent himself and this
“pro se” defense makes sense in some situations. Obviously, the less severe
the charged crime, the more reasonable it is for someone to self-represent.
For example, a defendant charged with a minor traffic offense or violation
of a city ordinance may get by without hiring an attorney. A critical piece of
information that someone should consider before deciding whether to hire
an attorney is what the punishment is likely to be if they are convicted.
In some civil lawsuits (e.g., small-claims court) that are heard in a formal
trial court, appearing on your own behalf is commonplace. However, in most
civil court cases, the parties cannot agree on a settlement, thus requiring a
civil trial to settle the dispute. In such cases, legal counsel is normally pur-
sued because an attorney provides greater experience and understanding of
legal tactics. Civil court processes will be discussed later in the chapter.

Judges
Judges are government officials appointed to decide litigated questions
according to law. They serve as the power broker of the judicial process.
Impartiality is the first duty of a judge, making certain that no bias exists for
or against either of the parties. The judge must also follow and enforce the
law, whether good or bad. Judges are bound to declare what the law is and not
to make it (i.e., not an arbitrator, but rather a scholar of the law).
Judges are appointed or elected to the bench in a variety of ways. In the
federal court system, district judges are nominated by the president of the
United States and confirmed by the U.S. Senate as is set forth in Article III
of the U.S. Constitution. U.S. district court judges are appointed for lifetime
terms in office, provided they exhibit “good behavior” according to Article
III of the Constitution. Magistrate judges, who are appointed by the district
judges for 8-year terms of office, handle most of the pretrial matters and
make recommendations to the district judges regarding the cases referred
to them. Also, if all parties to a civil lawsuit so consent, they may request to
have their case presided over from beginning to end by a magistrate judge.
Legal Structures 109

This option provides consistency of flow, which is often important to litigants

during a civil action.
The chief judge is the administrative head of the court. Every 7 years, a
new chief judge is appointed based on seniority. Other criteria considered
when appointing the chief judge include: (a) 64 years of age or under; (b)
have served for 1 year or more as a district judge; and (c) have not previously
served as chief judge.
In the state judicial system, the governor, the governor with confirma-
tion of the senate, or the legislature appoints judges in the state. In many
states, judges are chosen by a method that combines appointment and elec-
tion, which is commonly known as the Missouri Plan. In the initial stage, the
governor forms a selection committee that is responsible for collecting and
screening applications from individuals seeking appointment to the bench.
The committee then recommends a list of three nominees, of which one
applicant is chosen by the governor and appointed to the vacant judgeship.
After the initial term in office expires, a retention vote is taken during elec-
tion time. Several states use this selection and retention process, including
Alaska, Arizona, Colorado, Iowa, Kansas, Nebraska, Utah, and Wyoming.
Whether in the federal or state court system, almost all judges are lawyers
by profession. In addition to needing adequate legal training, good judges are
characterized by the following qualities:8

• Maintaining neutrality with regard to the parties in litigation

• Being fair-minded
• Being well versed in the law
• Having the ability to think and write in a logical and lucid manner
• Having personal integrity
• Having good physical and mental health
• Possessing good judicial temperament
• Having the ability to handle judicial power sensibly

Juries
Trial by jury is an integral part of our justice system in America. It can be
traced back to civil and criminal inquiries conducted under old Anglo-
Saxon law in England and translated into a jury of one’s peers. The Sixth
Amendment of the U.S. Constitution guarantees one’s right to a trial by
jury, which typically involves a random selection of citizens from within the
jurisdiction where the trial is to take place. However, a trial by jury does not
always guarantee justice will be served.
For years, the jury system was marked by the appearance of individu-
als hand selected from certain strata of the population. Discrimination,
intentional or not, was often the result. Verdicts reflected the community
110 Law and Society: An Introduction

standards of these strata, and the viewpoints of juries rarely reflected those of
the entire community. It was only in 1975 that the U.S. Supreme Court held
that women could not be excluded simply because they are women. With the
previous measure emphasizing the use of a broadly inclusive list, the advan-
tages of such a list are lost if the selection of names from this list is not ran-
dom. The American Bar Association’s standards call for randomness at each
stage of the juror selection process while recognizing that certain practices
are nonrandom but nonetheless permissible. Employing these standards
eliminates all other nonrandom procedures.9
In many states, 12 jurors are required for a criminal trial involving a
felony crime. In some states, however, fewer than 12 member jurors are ade-
quate, but a minimum of 6 jurors is always required in any felony trial.10 For
example, Utah and Arizona use eight-person juries, and Florida, Louisiana,
Oregon, and Rhode Island use six-person juries.

Grand Juries
A grand jury is a group of citizens convened in a criminal case to deter-
mine whether formal charges should be brought against a defendant(s) and
whether the case should go to trial. If so, a true bill or indictment (a for-
mal complaint against the defendant listing the specific criminal charge) is
issued. If not, the grand jury dismisses the case by issuing a no true bill (also
called a no bill). That means that the accused is not charged with a crime and
therefore is not required to stand trial. The number of members on a grand
jury varies in different states, consisting of not less than 12 or more than 24
members who listen to the case.

The Court Administrator

The complex operations of the court system necessitate that a court adminis-
trator or manager be an essential part of the judicial system. The court man-
ager’s primary role is to oversee the administrative functions of the court,
under the direction of the chief judge. Together, they provide an executive
component to the court, blending judicial management with the disciplines
of business and public administration.11
The duties of the court manager vary, depending on the size and location
of the court. However, overall the court administrator or manager functions
in management areas rather than legal areas. Basic management responsi-
bilities of the court manager include:12

Personnel management: Understanding personnel regulations, includ-

ing the wage and salary systems as well as recruitment, selection, and
training of staff
Legal Structures 111

Fiscal management: Preparing annual court budgets; administering

accounting, purchasing, payroll, and financial control functions; and
guiding the budget through local and state government review processes
Case-flow management: Analyzing and evaluating pending client case-
loads as well as preparing and implementing recommendations for
effective court calendar management
Automated office management: Assisting the court through analysis,
evaluation, and implementation of automated systems, including
computers, word processors, telecommunication equipment, micro-
film, and microfiche devices and techniques
Jury management: Providing the most efficient and cost-effective way of
managing the jury system
Space and equipment management: Planning for physical plant, including
assessment of space needs and the purchasing of equipment and supplies
Public education: Acting as a liaison to other agencies, courts and gov-
ernments, attorneys, and the public to educate and promote the work
of the court as a separate but equal branch of government.
Information management: Acting as a clearinghouse for the release of
information to the media and the public; providing management
information to all departments and branches of government; and
collecting and publishing data on pending and completed judicial
business and internal functions of the court system
Records management: Developing and managing uniform systems of
record storage
Research and advisory services: Identifying problems and recommend-
ing procedural and administrative changes to the court
Intergovernmental relations: Acting as a liaison to other government
agencies
Secretariat services: Acting as staff for judicial committees

Flow of Litigation in Civil Proceedings

Earlier in this chapter we defined the civil court case. In brief, a civil case
arises when an injured party files a case requesting the court to grant dam-
ages in the form of a payment of money. In some jurisdictions, if either party
in the case requests it, a jury may hear the trial. If neither party requests a
jury, the judge hears the case and renders a decision. In civil cases, the party
who initiates the action must present a preponderance of the evidence. In
other words, the burden of proof is squarely on the plaintiff of the civil suit.
As a formal matter, the plaintiff seeks a favorable judgment by a judge.
In practice, however, the judicial process typically does not produce such a
112 Law and Society: An Introduction

result. Instead, most civil cases leave the judicial process after a negotiated
settlement between the parties.
The federal and state court systems each have their own rules of pro-
cedure that dictate the form and timing of each step in the civil litigation
process. To illustrate these incremental steps, we provide a synopsis of civil
procedure, which normally consists of: (a) filing the complaint, (b) discovery,
(c) pretrial conference, (d) trial and judgment, and (e) conclusion of litigation.
Civil cases are initiated when someone files a complaint. The complaint
is a legal document that asserts the facts and legal basis for the claim and
requests the desired remedy. In civil cases, the remedy is specified in terms
of an amount of money or a specific judicial order directed at the defendant.
When the plaintiff files the complaint, the court clerk requires a filing fee to
be paid.
Once the complaint has been filed, the defendant is given notice and has
a limited time period to respond. This notice is called a summons and is
a constitutional due process requirement (i.e., a person being sued has the
right to know about the suit and must have adequate time to answer the facts
stated in the complaint). Courts typically require a sworn affidavit or a signed
registered-mail receipt to show that the person being sued has been served
the complaint. This due process is required because if the defendant doesn’t
respond to the complaint and fails to appear in court, the judge may order in
favor of the plaintiff because of default.
In most states, the defendant has 30 to 60 days in which to file an answer
to the complaint. The “answer” is a brief response either admitting or deny-
ing the statements in the complaint. In addition to stating the factual basis
of the defendant’s view of why the plaintiff’s case is false, the answer also
provides opportunity for the defendant to dispute the matter in terms of a
legal basis. The defendant also has the opportunity to file a counterclaim by
initiating an action against the plaintiff.
If either party wants a jury trial, a request for jury is required at the end
of the complaint or answer. Otherwise, the trial will take place before a judge.
When a jury trial is requested, the court clerk often requires the payment of
an extra fee to cover costs.
The next step in the process involves “discovery,” which is simply identi-
fying witnesses and uncovering all the evidence in the case. The purpose of
discovery is to learn as much as possible about the issues involved in the civil
action. Two discovery methods are commonplace:

Interrogatories: Written requests for information (i.e., set of questions)

that requires written answers from the opposing party
Deposition: Oral testimony of witnesses taken outside the courtroom but
in the presence of the attorneys for both parties and a court reporter
Legal Structures 113

The next step in the flow of civil litigation is the pretrial conference. After
the preliminary work has been completed and the case has been assigned a
date for trial, the attorneys may meet with the judge to informally discuss
the facts as well as the allegations and rebuttals involved in the lawsuit. At
these pretrial conferences, the goal is to exchange information, and some-
times evidence is produced that results in a request to dismiss the litigation
without trial. Typically this occurs when certain aspects of the case can be
settled by stipulation or agreement between the attorneys with the approval
of the judge.
Civil trials take place when the parties cannot agree on a settlement.
When legal counsel for either the plaintiff or respondent feels that the civil
case is ready for trial, the clerk of the court is notified through the filing of a
“notice of trial.” The court docket is consulted, and the clerk chooses the next
available trial date. The clerk then notifies the parties when and where the trial
will be held. In civil cases, the plaintiff’s attorney argues the case, and in most
jurisdictions the plaintiff’s attorney is allowed a rebuttal immediately follow-
ing the defense’s final argument. After the plaintiff has presented evidence,
and before the presentation of defense, the defendant may move for a dis-
missal of the case for failure to state a claim for which relief may be granted.
When a case is heard before a jury, the jury finds in favor of either the
plaintiff or respondent. This decision is made based on the facts of the case.
In civil cases, judgment is issued in favor of the party judged to have met its
burden of proof. The party who receives the favorable judgment is referred
to as the “prevailing party.” The jury also is called upon to set the amount of
damages. In effect, the jury sets the sentence.
Very few civil cases end up before judges or juries. The motives to settle
vary from legal to personal reasons. For example, if the evidence gathered
during discovery shows that there is no factual issue to be tried, the judge may
enter a summary judgment upon motion by one of the parties. Sometimes
one of the litigants or legal counsel fails to appear in court or respond to
court documents within the time specified. This results in a default judg-
ment. At other times, the parties mutually agree to terminate the suit or the
plaintiff may simply discontinue the case. Still other times, the plaintiff and
respondent come to an out-of-court resolution. For instance, a Pennsylvania
municipality agreed to settle a traffic-stop suit brought by minority drivers
who claimed they had been forced to stop because of race-based drug courier
profiles.13 In another case, a class-action lawsuit brought against Honda by
dealers alleged that Honda executives conspired to send cars to those willing
to pay exorbitant bribes and punished dealers who refused. Under the terms
of a settlement approved by a U.S. district court judge, Honda agreed to pay
the dealers a total of nearly $330 million. In exchange, the dealers dropped
their bribery claims.14
114 Law and Society: An Introduction

The final step in the civil process occurs once the court hands down a
judgment. When this happens, the losing party has two basic options. The
first option is to simply satisfy the judgment of the court (e.g., monetary
damages). If judgment is not fulfilled, the prevailing party may have to take
measures to enforce the court’s order. The second option is, of course, to
appeal the case to a higher court. If the losing party chooses to appeal, no
payment is made to the prevailing party. The attorney for the losing party
must make an appeal within the time limit prescribed by law or forfeit the
right to appeal.

Flow of Criminal Proceedings

When a person breaks a law that is designed to protect society from harm,
it is considered a criminal act. Jurisprudence is based on the general under-
standing that criminal acts cause harm not only to individuals, but also to
society as a whole. Therefore, the people within society are responsible for
bringing action against those who commit criminal acts. As a matter of prac-
tice, public officials who are versed on the law represent the peoples’ interests.
In America, we know these legal representatives as district attorneys, county
attorneys, public prosecutors, or U.S. attorneys.
The prosecution of a criminal act involves the criminal court system. The
criminal court has its own rules of procedure that dictate how the prosecution
process should take place. Similar to civil cases, the process involves a set of
successive actions on the part of the court system. In general, these actions
consist of: (a) filing charges, (b) first appearance, (c) preliminary hearing, (d)
trial and judgment, and (e) sentencing.
The criminal justice court system is initiated when an individual is
charged with a crime. The process of charging an individual for a crime var-
ies. One way in which it occurs is when a citizen files a formal complaint
with police. The police report causes the prosecution to review the facts of
the complaint to determine if a law has been broken. If so, the prosecutor
prepares an affidavit for an arrest warrant. A judge signs a warrant, which is
the written authority for police to make an arrest.
Charging someone with a crime also may occur when police make an
arrest. Arrests in such cases can be made under the following conditions:

• If a police officer has probable cause to believe that a crime has been
committed and that a specific person has committed the crime, that
person may be detained under suspicion.
• If a person commits a felony or misdemeanor crime in plain view of
a police officer, an arrest can be made without a warrant.
Legal Structures 115

• If a police officer has probable cause to believe that a person has com-
mitted a felony crime, even if the crime was not committed in the
officer’s presence, the officer may arrest the person.

An arrest may be made in a public place, with or without a warrant. But

if police wish to arrest a person in a private place, an arrest warrant must be
obtained first, unless there are exigent circumstances, such as the possibility
that the suspect will flee. Police have a relatively short period of time follow-
ing an arrest (24 or 48 hours, depending on the state) during which they must
either charge the person with a crime or release them.
Once an arrest has occurred, the accused is typically taken to jail. In
most criminal court cases, the court establishes a bail amount. Bail is money
or property that an accused person puts forth as security (also known as
surety) to ensure that they will appear for further criminal proceedings,
including the trial and sentencing. Bail may be paid in cash, in the form of a
bail bond, or a pledge of property if the court permits this form of security. A
bail bond is an agreement with a bail bondsman under which the bondsman
puts up bail money in return for a fee. In some cases, however, (e.g., failure to
appear cases) there is no bail as the judge requires that the defendant make
an immediate appearance in court. Also, if a judge believes that the crime
charged is extremely serious, then bail may be denied or set at such a high
figure that a defendant may not realistically be able to post bail. In minor
offenses, an accused who is well established in the community with a job,
a home, and family support may be released on low bail. Occasionally, this
includes a signature bond, which is, in effect, no bail at all. The defendant
merely signs a bond promising to appear in court. This type of bail is referred
to as being released in one’s own recognizance (ROR).
The next step in the criminal court process is the arraignment of the
accused person. The purpose of this initial court appearance is to ensure that
the defendant is aware of the charges that have been brought about by the
prosecution and understands the maximum punishment allowed by law,
should a conviction occur. The judge also makes inquiry into the ability of
the defendant to hire legal counsel for defense. If the defendant is indigent,
the court may appoint an attorney. For example, attorney Stephen Jones was
appointed by a U.S. district court to serve as the principal defense counsel
for Timothy McVeigh when he was charged in the Oklahoma City bombing
case in 1995.
The next step in the criminal court process is the preliminary hearing.
A preliminary hearing is a formal court process to determine whether there
is probable cause for holding the accused for trial. At this hearing, the pros-
ecution presents just enough evidence to the judge to convince him or her
that the evidence shows that a crime occurred and that the accused likely
committed the crime. The defense attorney may cross-examine any of the
116 Law and Society: An Introduction

prosecution’s witnesses and present witnesses on behalf of the defendant. If

the judge concludes that probable cause exists, the accused is bound over for
trial.
After being formally charged and usually before the start of a trial, a
defendant may arrange with the prosecution to enter a guilty plea to a lesser
charge (i.e., if the prosecution is willing to charge the defendant with a lesser
crime). Plea bargaining includes the prosecutor’s agreement to recommend
a particular sentence for the charges to which the defendant agrees to plead
guilty. The vast majority of criminal cases are settled this way.
If a plea agreement is not reached, the proceedings move toward the trial
stage. The U.S. Constitution in the Sixth Amendment guarantees a right to a
jury trial in a criminal trial. The defendant, however, may waive this right. If
the trial is to be held before a jury, members are selected and sworn in by the
court bailiff, court reporter, or other court personnel. A trial jury typically
consists of 12 citizens who sit together, listen to the facts of the case, and pres-
ent their decision (the verdict). In criminal actions, a unanimous vote of the
jurors is usually necessary. In a jury trial, the judge rules on points of law and
the jury decides questions of fact.
After the jury has been selected, the trial follows standard formats, which
consist of the following procedures:

1. An opening statement by the prosecutor

2. An opening statement by the defendant’s lawyer
3. Presentation of evidence by the prosecutor
4. Presentation of evidence by the defense
5. Closing arguments by the prosecutor
6. Closing arguments by the defense
7. The judge’s charge or instructions to the jury

At the trial, evidence is presented by the prosecutor in the form of wit-

ness testimony, documentary evidence, and “demonstrative evidence.”
Documentary evidence includes such items as police reports, records, and
letters. Demonstrative evidence includes all kinds of exhibits, including pho-
tographs of the victim of a homicide, or the gun used in committing a rob-
bery. The defendant has the right to present witnesses and other evidence
in defense of the charges. The defendant also has the right to “confront” or
cross-examine the witnesses brought forward by the prosecution.
Once the submission of evidence has concluded, the judge charges the
jury. In this step, the judge instructs the jury with regard to the law relat-
ing to the case. While the judge ultimately instructs the jury, each attorney
prepares and submits to the judge a set of requested jury instructions. In
this way, each attorney can make sure that the judge does not overlook any
important point that the attorney wants the jury to take into consideration.
Legal Structures 117

The jury then retires to a private room and considers the case in secrecy.
A vote of the jury is taken to arrive at a decision. A jury may find a per-
son not guilty or guilty of all or some of the crimes charged. In some cases,
depending upon the evidence presented and the nature of the jury instruc-
tions given by the court, a jury may convict a defendant of a lesser offense
than originally charged in the indictment. If the jury cannot reach a deci-
sion, the judge may order a mistrial. If the defendant is found guilty, the
judge has the authority to impose sentence, although in certain jurisdictions
the jury determines the sentence. In serious cases, such as capital murder
offenses, another hearing might be held to determine the sentence. The sen-
tence is based on specific findings of fact, such as the presence of aggravating
or mitigating circumstances, and conclusions of law. The verdict is signed
by the judge and recorded so that it may be included in the transcript of the
case. If the accused is found guilty, the case is subject to appeal. After acquit-
tal, a criminal defendant cannot be tried again for the same crime (known
as double jeopardy). If a mistrial is declared, there must be a new trial with
a new jury.
In the final step of the criminal court process, the judge imposes sentenc-
ing. There are three basic types of sentencing that pertain to felony convic-
tions: mandatory, indeterminate, and determinate. Mandatory sentencing is
law that prescribes a particular sentence for a specific crime, and the judge
has no latitude. Indeterminate sentencing allows the judge to establish mini-
mum and maximum time periods of punishment that an offender must
serve. For example, an offender may be sentenced to prison for a minimum
of 2 years but not more than 5 years. Determinate sentencing is referred to
as “truth in sentencing” and requires the judge to confer with a sentencing
grid that establishes the type and length of punishment based only on crime
severity and criminal history. A small amount of latitude is afforded to the
sentencing judge if aggravated or mitigating circumstances exist.
The sentencing process as well as the other steps in the criminal court
process is bound by laws that have been enacted by state legislatures or
Congress. In the next section we examine this relationship by briefly discuss-
ing the principal function of legislative bodies and the process of lawmaking.

Lawmaking

The process of lawmaking is distinguished by the extent to which compro-

mise is incorporated into the political system. While legislators have their
own viewpoints about which laws need immediate attention and which do
not, citizens who are either proponents or opponents of certain legislation
constantly try to influence the work of lawmakers. Considering that this
118 Law and Society: An Introduction

dynamic takes place with each and every legislator, it is no wonder that a
legislative session can become besieged with confrontation and confusion.
On a large scale, there are two types of political affiliations that effect
lawmaking in America: political parties and interest groups. Political party
can be defined as a group of voters, officeholders, and candidates who label
themselves as a political party. It is organized around two basic kinds of func-
tions: (a) helping legislative candidates get elected and (b) helping legislators
get bills passed through the legislative process. While political parties are
not discussed in the U.S. Constitution, today’s democratic political system is
based on seeing these functions through in order to advance the agendas of
certain classes of people in society.
An interest group is a formal organization of people who share a com-
mon outlook or social circumstance and who band together in the hope
of influencing lawmaking. Examples are groups of private companies
(e.g., tobacco corporations), unions (e.g., auto workers), tradesmen (e.g.,
sheet metal workers), professions (e.g., lawyers), government contractors
(e.g., construction companies), government bureaus (e.g., public schools),
ideologues (e.g., environmentalists), taxpayers, consumers, and the list
goes on.
An interest group can use a variety of methods to influence laws. First, it
can merely inform legislators of its members’ preferences (i.e., proponents or
opponents of specific legislation). Second, it may give money or time to help
with an election campaign. Third, an interest group may attempt to influence
members of the executive branch, who have some lawmaking input.

U.S. Congress
The primary function of the U.S. Congress is the making of laws. Article I,
Section 1, of the United States Constitution, provides that:

All Legislative Powers herein granted shall be vested in a Congress of the

United States, which shall consist of a Senate and House of Representatives.

The Senate is composed of 100 members (two from each state, regard-
less of population) elected by the people in accordance with the Seventeenth
Amendment to the U.S. Constitution. A senator must be at least 30 years of
age, have been a citizen of the United States for 9 years, and, when elected,
be a resident of the state for which the senator is chosen. A senator’s term is 6
years, and the terms of both senators from a particular state are arranged so
that they do not terminate at the same time.
The House of Representatives is composed of 435 members elected every
2 years from among the 50 states, apportioned to their total populations.
A representative must be at least 25 years of age, have been a citizen of the
Legal Structures 119

United States for 7 years, and, when elected, be a resident of the state in which
the representative is chosen. If a representative dies or resigns during the
term, the governor of the state calls a special election pursuant to state law to
choose a successor to serve out the remainder of the term. A resident com-
missioner from Puerto Rico (elected for a 4-year term) and delegates from
American Samoa, the District of Columbia, Guam, and the Virgin Islands
complete the composition of the Congress of the United States. Delegates are
elected for a term of 2 years.
The resident commissioner and delegates may take part in the floor dis-
cussions but have no vote in the full House or in the Committee of the Whole
House on the State of the Union. They do, however, vote in the committees to
which they are assigned.
Under provisions of the Twentieth Amendment to the U.S. Constitution,
Congress must assemble at least once every year, at noon on the third day of
January, unless by law they appoint a different day. A Congress lasts for 2 years,
commencing in January of the year following the biennial election of members.
The Constitution authorizes each house to determine the rules of its pro-
ceedings. Pursuant to that authority, the House of Representatives adopts its
rules on the opening day of each Congress. The Senate considers itself a con-
tinuing body and operates under continuous standing rules that it amends
from time to time. Unlike some other parliamentary bodies, both the Senate
and the House of Representatives have equal legislative functions and pow-
ers with certain exceptions. For example, the U.S. Constitution provides that
only the House of Representatives originate revenue bills. By tradition, the
House also originates appropriation bills. As both bodies have equal legisla-
tive powers, the designation of one as the “upper” House and the other as the
“lower” House is not appropriate.
Preparing and considering legislation is done largely by committees of
both houses of the U.S. Congress. There are 16 standing committees in the
Senate and 19 in the House of Representatives. In addition, there are select
committees in each house as well as various congressional commissions and
joint committees composed of members of both houses. Each house may also
appoint special investigating committees.
Proceedings of the U.S. Congress are published in the Congressional
Record, which is issued when Congress is in session. Publication of the Record
began March 4, 1873; it was the first record of debate officially reported,
printed, and published directly by the federal government. The Daily Digest
of the Congressional Record, printed in the back of each issue of the Record,
summarizes the proceedings of that day in each house and before each of
their committees and subcommittees, respectively. The Digest also presents
the legislative program for each day and, at the end of the week, gives the
program for the following week.
120 Law and Society: An Introduction

Article I, Section 8, of the U.S. Constitution defines the powers of the

U.S. Congress. Included are the powers to assess and collect taxes (called
the chief power); to regulate commerce (both interstate and foreign); to coin
money; to establish post offices and post roads; to establish courts inferior to
the Supreme Court; to declare war; and to raise and maintain an army and
navy. Congress is further empowered

To provide for calling forth the Militia to execute the Laws of the Union, sup-
press Insurrections and repel Invasions [and] To make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.15

Another power vested in the U.S. Congress is the right to propose

amendments to the U.S. Constitution. Should two-thirds of the state legisla-
tures demand changes in the Constitution, it is the duty of Congress to call
a constitutional convention. Proposed amendments shall be valid as part of
the Constitution when ratified by the legislatures or by conventions of three-
fourths of the states, as one or the other mode of ratification may be proposed
by Congress.
Under the U.S. Constitution, special powers are granted to both the
Senate and House of Representatives. The Senate is assumed certain pow-
ers not accorded to the House of Representatives. The Senate approves or
disapproves certain presidential appointments by majority vote, and treaties
must be concurred in by a two-thirds vote. The House of Representatives
is granted the power of originating all bills for the raising of revenue. Both
houses of Congress act in impeachment proceedings, which, according to the
Constitution, may be instituted against the president, vice president, and all
civil officers of the United States.
The House of Representatives has the sole power of impeachment, and
the Senate has the sole power to try impeachments. For example, the House
of Representatives impeached President Bill Clinton on charges of lying
under oath to a federal grand jury and obstructing justice in the Monica
Lewinsky case.16 A subsequent impeachment trial held by the Senate resulted
in President Clinton’s acquittal. The Senate voted 54–45 to reject the perjury
charge and split 50–50 on the obstruction-of-justice allegations. To remove
President Clinton from office would have required a two-thirds vote, or 67
total votes.
All bills and joint resolutions must pass both the House of Representatives
and the Senate and must be signed by the president, except those proposing
a constitutional amendment, in order to become law, or be passed over the
president’s veto by a two-thirds vote of both houses of Congress. Section 7 of
Article I states:
Legal Structures 121

If any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law.17

When a bill or joint resolution is introduced in the House, the usual pro-
cedure for its enactment into law is as follows:

• It is assigned to the House committee having jurisdiction.

• If favorably considered, it is reported to the House either in its origi-
nal form or with recommended amendments.
• If the bill or resolution is passed by the House, it is messaged to the
Senate and referred to the committee having jurisdiction.
• In the Senate committee, the bill, if favorably considered, may be
reported in the form as received from the House or with recom-
mended amendments.
• The approved bill or resolution is reported to the Senate and, if
passed by that body, is returned to the House.
• If one body does not accept the amendments to a bill by the other
body, a conference committee comprising members of both bodies is
usually appointed to effect a compromise.
• When the bill or joint resolution is finally approved by both houses,
it is signed by the Speaker and the vice president and is presented to
the president.
• Once the president’s signature is affixed, the measure becomes a law.
If the president vetoes the bill, it cannot become a law unless it is
repassed by a two-thirds vote of both houses.

State Legislatures

Most state legislatures convene each year to make law. However, for a bill to
become law, it must first survive a sequence of challenges through a system
that is rigid and complex. During this process, bills are constantly moving
and changing. Occasionally, they flow through the system easily because
the bill is supported with little resistance. Most bills, though, never make it
completely through the legislative process, especially during the initial year
that it has been introduced to the legislative body. In fact, the legislative ses-
sion is considered successful if one-third of the bills introduced are passed
into law.
The following is a brief summary of the legislative process. It provides
the mechanics of how a bill is introduced and flows through the system. In
this discussion, we have chosen the House of Representatives to illustrate the
122 Law and Society: An Introduction

legislative process; however, a bill can just as readily be introduced on the

Senate side.

How a Bill Becomes a Law

States vary on the exact procedures used to enact legislation. In this section,
we will discuss generally how a bill becomes a law. There are some variances
in the states, but the general procedures are similar.

Introduction of a Bill
Bills that are introduced during a legislative session originate as ideas of one
or more legislator. Many times, bills represent the suggested ideas of con-
stituents who request that their ideas be presented during the legislative ses-
sion. In effect, the legislator “sponsors” the bill for the citizens that live in the
jurisdiction that the politician represents. The sponsoring legislator will have
his or her legal staff draft a bill that incorporates the idea.
Once the bill has been put in draft form, most legislators then approach
other members of that house to obtain cosponsors and try to get as many
signatures as possible, although only one signature is required. When signa-
tures have been gathered, the bill is placed in the hopper. Once in the hopper,
the bill is a matter of public record and its life officially begins.

Assignment to Committee
Legislation that has been initiated is referred to a committee based on the policy
content of the bill. Many of the bills that deal with crime in society, for example,
are assigned to the judiciary committee. However, assignment to a committee
does not guarantee that the bill will actually be scheduled for a public hearing.
This is left to the discretion of the chairperson of the committee. Typically,
there are many more bills assigned to a committee than can possibly be heard,
and the chairperson’s responsibility is to set the priorities for the committee.
Bills that have been introduced to solve immediate social problems are given
higher priority and receive first consideration to receive a public hearing.
When public hearings are conducted, citizens may attend and address
the attending legislators. The legislative members of the committee are
assigned according to their level of policy expertise and seniority ranking in
the legislature. For example, it would not be uncommon for a house judiciary
committee to be composed entirely of lawyers.
Once the proponents and opponents of the bill have had adequate time
to make public comment, the legislation can be brought to a vote. Again,
however, even though a public hearing has been held, there is no guarantee
Legal Structures 123

that the committee chairperson will allow the bill to be taken up by the com-
mittee. If a vote is to be taken, however, it occurs in executive session. During
executive session, members have their first opportunity to offer amendments
to the bill. When this occurs, a substitute bill is created that incorporates the
amendments to the original bill.

First, Second, and Third Readings

If the committee members vote to pass the bill out of committee, it may go
directly to the house floor for a first reading to all members of the house of
representatives. However, if the bill is going to cost money, it may be sent to
the house appropriations committee so that a fiscal note can be taken into
account for the bill.
Besides a first reading, there are two additional readings of a bill. When a
bill is on second reading, any member of the house can again amend it. Once
a bill has been through second reading, it automatically moves to the third-
reading calendar the next session day. Third reading is strictly for discussion
and vote on final passage; no further amendments may be offered. If the bill
does pass, it is transferred to the senate.

Senate
When a bill has passed the house of representatives and is transferred to
the senate, nearly the same process is duplicated before a bill can be passed
into law. The bill is first assigned to the appropriate committee, where public
hearings are conducted and a vote taken in executive session. If passed, the
subsequent readings take place on the floor by the full senate. If the senate
changes the house bill in any way, it must be sent back to the house for con-
currence. If the house agrees with the senate amendments, the house again
votes and passes the senate version of the bill. In this case, the bill has passed
the legislature and is sent on for the approval of the governor.
However, if the house refuses to concur with the senate amendments, the
bill is said to be in “dispute,” and it is sent to a conference committee.

Conference Committees
Unlike the other legislative processes, the conference committees are not
open to the public. They consist of a combination of legislators from both the
house of representatives and the senate and are appointed by the speaker of
the house and the president of the senate. The committee’s task is to amend the
language of the bill so that both houses will approval the legislation. Once the
bill has been rewritten, the new language in the committee report is brought
124 Law and Society: An Introduction

back to the house and senate for a new vote for final passage. If the bill is
approved, it is sent to the final stop in the legislative process, the governor.

Executive Actions
When the bill reaches the president or governor’s office, several actions can
be taken. The governor or president can choose to veto the entire bill or just
veto certain parts of the bill. The executive may choose to support the bill
and sign it into law. The president or governor may not support the bill, but
allow it to automatically become law by doing nothing. For example, in 1994,
a new capital punishment bill that enacted the death penalty was presented
by the Kansas State Legislature to then-Governor Joan Finney. Although she
personally opposed the death penalty, Governor Finney allowed the law to be
ordered by not vetoing the legislation.

Administrative Agencies and Rulemaking

Many local, state, and federal administrative agencies are authorized to make
regulations of general applicability that have the effect of law. This means of
social control is known as rulemaking and is a principal concern in the study
of law and society. The power enabling an agency to adopt a rule requires a spe-
cific law to be enacted by government. Generally, this occurs when the legislative
body passes a statute that (a) requires enforcing regulations and (b) instructs
some agency to make and enforce those rules. Often the same statute will make
general rules on a subject, create a commission to promulgate and enforce more
specific rules, and indicate how to appeal from any adverse decisions. Then, an
agency may adopt only those rules that implement, interpret, or make specific
the particular powers and duties granted by the permitting statute.
Beside the power of rulemaking, administrative agencies also have pow-
ers in the areas of licensing, issuing orders or advisory opinions, and making
decisions about the enforcement of their rules when they are challenged or
ignored. While this may seem like too much power to allot individual gov-
ernmental units, all agency actions are subject to review in the federal courts.

Lobbyists
The term lobbying is derived from the early days of the U.S. Congress. Prior
to the legislators’ meetings being convened and during breaks, people who
expected to gain or lose from a particular bill gathered at the lobbies of the
buildings in which the two houses of Congress met. Their objective was to
informally talk with legislators in an attempt to sway the decision makers.
Over time, these impromptu meetings were taken over by professionals who
Legal Structures 125

had been hired to perform this service for their clients. These profession-
als were given the name “lobbyist,” and their activity was called “lobbying.”
Today, Washington, DC, has thousands of lobbyists; many of them are law-
yers and former legislators.
Lobbyists no longer confine their activities to the buildings where legis-
lators meet. They visit legislators’ offices, invite them to dinner and vacation
retreats, and offer to pay them for lectures. There are now large lobbying cor-
porations in each state as well as Washington, DC, who offer their services to
a variety of different clients.

Governance of Lobbyists
The Lobbying Disclosure Act of 1995 became effective in 1996, repealing the
original Federal Regulation of Lobbying Act, enacted in 1946. The new law
significantly expanded the registration and reporting requirements for those
who seek to affect U.S. government policies or the implementation of federal
programs.
While most routine communication with the executive branch does
not constitute “lobbying contacts,” an individual who repeatedly engages in
policy or other advocacy involving either senior executive branch officials or
U.S. congressional staff are likely to be a “lobbyist” for purposes of the law.
An organization that employs an in-house lobbyist to make lobbying contacts
on the organization’s behalf is likely to be subject to the Lobbying Disclosure
Act’s registration and reporting requirements. Also, foreign entities and the
U.S. subsidiaries or affiliates of foreign corporations may face special compli-
ance issues under this act (in addition to other representation-related statutes).
The Lobbying Disclosure Act provides for the imposition of civil fines (up to
$50,000) for deliberately failing to comply with the law. Violations must be
proven, as in other civil cases, only by a preponderance of the evidence.
The secretary and the clerk are responsible for enforcing the require-
ments of the Lobbying Disclosure Act. This office is responsible for ensur-
ing the accuracy, completeness, and timeliness of registration and reports.
However, some pundits have questioned how aggressively the secretary and
the clerk can monitor compliance, given the fact that the U.S. Congress has
provided no additional financial resources or personnel with which to carry
out the office’s new responsibilities under this act.18
In most state governments, lobbyists are required to register with the
secretary of state’s office. However in recent years, several states have estab-
lished regulatory agencies to improve the registration process and obtain
full disclosure from special interests trying to influence both the legislative
and executive branches of state government. For example, in New York, the
state commission on regulation of lobbying is empowered to administer and
enforce the provisions of the Lobbying Act. The commission is authorized
126 Law and Society: An Introduction

to conduct investigations, administer oaths or affirmations, subpoena wit-

nesses, and require the production of any books or records. The commission
also conducts private and public hearings, prepares reports and statements
required by the act, and issues advisory opinions. It reports annually to the
governor and legislature.

Law Enforcers

Once laws are enacted, government must enforce them, for without some
type of enforcement, life would be chaotic, and our social structure would
be dismantled to the point of nonexistence. In our society, it is the police
who are primarily responsible for the function of law enforcement. This gov-
ernmental entity collaborates with other agencies within the justice system,
attempting to ensure that society complies with established rules, regula-
tions, and the law.
The penal code defines the role of police officials. The courts have ruled
time and again that the police are members of an organization empowered
by the authority vested in them by society to enforce the laws of the city,
county, and state. Besides enforcing laws, police also maintain order and pro-
vide helping services to the community. These three functions coexist and
oftentimes overlap each other. Consider the following description of the role
of a patrolman offered by James Q. Wilson:

The patrolman’s role is defined more by his responsibility for maintaining

order than by his responsibility for enforcing the law. By “order” is meant the
absence of disorder and by disorder is meant behavior that either disturbs
or threatens to disturb the public peace or that involves face-to-face conflict
among two or more persons.19

Wilson notes that disorderly behavior generally involves infractions of

the law, and any intervention by the police is at least under color of the law
and in fact might be viewed as an “enforcement” of the law. A judge, examin-
ing the matter after the fact, is likely to see the issue wholly in these terms.
But the patrolman does not. Though he may use the law to make an arrest,
just as often he will do something else, such as tell people to “knock it off,”
“break it up,” or “go home and sober up.” According to Wilson, in the police-
man’s eyes, even an arrest does not always end his involvement in the matter.
In some sense, he was involved in settling a dispute; if and how he settled it
is important both to the parties involved and to the officer himself. To the
patrolman, “enforcing the law” is what he does when there is no dispute—
when making an arrest or issuing a summons exhausts his responsibilities.
Legal Structures 127

Local Law Enforcement

Local law enforcement consists of municipal police officers and county sher-
iff’s deputies. Each enforces the criminal code of the state as well as city and
county ordinances. Typically the first to respond to crime scenes and traffic
accidents, city police officers maintain legal authority within the geographi-
cal boundaries of the municipality, while sheriff’s deputies are responsible
for law enforcement of the larger jurisdiction of the county.

State Law Enforcement

There are many law enforcement agencies that operate within state govern-
ment. Beside the State Patrol (also referred to many jurisdictions as the State
Highway Patrol), other state agencies exist that specialize in certain areas of
law enforcement (e.g., alcohol beverage control and wildlife and parks pro-
tection). Most states maintain a bureau of investigations to assist local law
enforcement with a variety of felony criminal investigations. For example,
the Georgia Bureau of Investigations (GBI) is an independent, statewide
agency that provides assistance to the state’s criminal justice system in the
areas of criminal investigations, forensic laboratory services, and computer-
ized criminal justice information. The GBI consists of three divisions (the
Investigative Division, the Division of Forensic Sciences, and the Georgia
Crime Information Center) and operates in 15 regional offices strategically
located throughout the State of Georgia.
The three largest statewide law enforcement agencies are the California
Highway Patrol, the Texas Department of Public Safety, and the Pennsylvania
State Police. On the other hand, the smallest state law enforcement agencies
include the North Dakota Highway Patrol, the Rhode Island State Police, and
the South Dakota Highway Patrol.

Federal Law Enforcement

There are over 60 law enforcement agencies at the federal level in the United
States.20 Federal agencies are created by the U.S. Congress under the author-
ity of the necessary and proper clause of Article I, Section 8, of the U.S.
Constitution (mentioned earlier in the chapter).
The primary function of federal officers with arrest and firearms author-
ity is criminal investigations of federal law violations. For example, of the
10,389 FBI employees, nearly all were agents, responsible for conducting
criminal investigation and enforcement. These federal investigators cover
more than 250 federal crimes, including bank fraud, embezzlement, and
kidnapping. Since 2001, detecting and preventing terrorist acts has also been
a major function of the federal law enforcement agencies, especially those
128 Law and Society: An Introduction

currently under the Department of Homeland Security. Note that federal

agents are generally restricted to investigating violations of federal law, and
for the most part they have only limited jurisdiction regarding the violations
of state statutes.

Punishment

Punishment is the authorized imposition of sanctions aimed at enforcement

of legal obligations. It constitutes the core, if not the defining characteristic,
of the legal order. The justice model precept requires that unacceptable social
behavior that amounts to crime should be punished for the sake of society.
In the United States, crimes are punished according to their seriousness,
with greater penalties imposed for more serious crimes. Modes of punish-
ment typically include fines, community supervision, and incarceration. For
the crime of murder, the ultimate sanction of death may be imposed in cer-
tain states. Moreover, depending on the jurisdiction, the sentencing judge
has the power to impose unusual punishments, such as the imposition of the
habitual criminal act, which enhances an offender’s term of imprisonment.
Penalties for crimes vary greatly from state to state and reflect policy
decisions made by courts and legislatures. For example, a state with a sig-
nificant tourist industry may punish vagrancy very seriously, reflecting the
importance of the business of tourism in that state, while another may pun-
ish it less severely because it is not of great concern in that state.
When the court issues a sanction, the judge may take into account the
convicted person’s prior criminal record, age, and other circumstances sur-
rounding the commission of the criminal offense. Sentencing judges may
also consider the offender’s cooperation with law enforcement authorities.

Sentencing Guidelines
In the federal criminal justice system, sentencing is governed by the United States
Sentencing Guidelines (USSG). While federal statutes typically impose maxi-
mum and minimum punishments, the USSG sets out factors that federal courts
must take into account when deciding the exact sentence to impose. Under the
USSG, offenders convicted of crimes are assigned “points” for the presence of
certain factors in the commission of those crimes. These factors include:

• The amount of loss to victims

• Whether a weapon was used in the crime
• The age or vulnerability of the victims of the crime
Legal Structures 129

The guidelines also consider the person’s prior criminal history, with repeat
offenders receiving more “points” in the guidelines, and thus more severe
sentences. The guidelines are not considered as restrictions on a judge’s
authority but, rather, are only considered as advisory in imposing sentences.
Many states have adopted sentencing provisions similar to the federal
sentencing guidelines. For example, in 1981, the Washington State Legislature
enacted a new sentencing guidelines system to ensure that offenders who
committed similar crimes and had similar criminal histories would receive
equivalent sentences. Sentences are now determined by the seriousness of the
offense and by the criminal record of the offender, a practice that is referred
to as “truth in sentencing.” Truth-in-sentencing laws require offenders to
serve a substantial portion of the prison sentence imposed by the court before
being eligible for release. Previous policies that reduced the amount of time
an offender served on a sentence, such as good time, earned time, and parole
board release, are restricted or eliminated under truth-in-sentencing laws.
The definition of truth in sentencing varies among the states, as does the per-
centage of sentence time required to be served and the crimes covered by the
laws. Most states have targeted violent offenders under truth in sentencing.

Correctional Institutions
Most of today’s prisons are formally known as correctional institutions.
The changing ideologies of punishment that have occurred over the past
several decades have altered the prison system. Social change that erupted
in the 1960s influenced our penal system, transforming it from the gothic
“Big House” to a present-day “human warehouse.” Notions of rehabilitation
have all but disappeared as the public demands that inmates not be coddled
and be made to serve long prison sentences. The result is that the American
prison is a highly volatile environment where inmate threats and acts of vio-
lence are commonplace.
Until the late 1960s, operating America’s jails was left almost entirely in
the hands of sheriffs. Little accountability was demanded of those respon-
sible for the care and custody of prisoners. The result too often was that many
jails became physical abysses. Staff use of force against inmates was a recog-
nized practice of control, and inmates were locked in solitary confinement in
unfurnished cells for extended periods of time for trivial reasons.
During the 1970s, the courts recognized that the U.S. Constitution
did indeed extend into the jail, and there was a huge growth in the num-
ber of court rulings interpreting the constitutional rights of jail inmates.
Additionally, the courts began to impose new duties and liabilities on sheriffs
and jail employees.
The impact of court decisions on the American jail was tremendous.
Probably no other factor or combination of factors contributed so much to
130 Law and Society: An Introduction

improvement in jail design and conditions in the 20th century. Brutality is

now recognized as illegal. Funds for new jails have become available as courts
ordered unconstitutional facilities to be improved or closed. The attention
of legislatures, citizens, and the media focused on jails as courts declared
facility after facility across the nation to be unconstitutional. The account-
ability that was previously nonexistent was becoming reality. Sheriffs and jail
administrators realized that unless practices and conditions improved and
conformed to the law, they and their staff would ultimately be held liable.
Moreover, America’s “keepers of jails” began to strive for professionalism
and became innovative in their ideas regarding construction and operation
of modern jails. Most notably has been the adoption of the “direct supervi-
sion” jail that has flourished in the latter half of the 20th century. Direct
supervision is based upon a philosophy that stationing a jail officer within an
appropriately designed inmate living area can significantly reduce the rate of
serious incidents in the jail.21

Community-Based Corrections
Probation is the suspension of a sentence of imprisonment and the imposi-
tion of conditions the defendant must meet to satisfy the probation terms.

• A defendant is placed on probation where incarceration is unwar-

ranted and not required by law.
• The conditions of probation ensure that the defendant leads a law-
abiding life.

At the end of the probationary period, the defendant is free of the state’s
supervision. Violating probation terms can result in the revocation of proba-
tion and the imposition of the original sentence.
Parole is the conditional release of a prisoner before the expiration of
the sentence. Parole is usually granted by a separate state agency, or com-
mission, which considers the applications of prisoners for early release from
imprisonment. Typically, parole is granted on certain conditions that must
be followed by the paroled offender. Violating these conditions can result in a
revocation of parole and reinstatement of the balance of the sentence.
Sex-offender registration laws have been enacted in many states. These
statutes require convicted sex offenders to register with local police depart-
ments so that various individuals and groups within their communities
can be warned of their presence in the community. Typically, convicted sex
offenders are classified according to a judgment about the likelihood that they
will reoffend and the seriousness of their prior conduct. The classification
into which the particular offender falls determines which members of the
community receive notice of their presence. So far, these statutes have largely
Legal Structures 131

survived court challenges based on arguments that they violate the consti-
tutional rights of the offenders, and their provisions vary from state to state.

Summary

• The relationship between law and society is more fully appreciated

when we possess a sound understanding about the social organiza-
tion of law.
• The legal process is inherently involved with authority and cannot be
easily separated from the institutions that execute it.
• Dynamic associations take place between legislating, interpreting,
and enforcing the law.
• The functioning of law is a process whereby some people render deci-
sions about the law, others are responsible to carry out the law, and
all are expected to obey the law.
• The judicial system in the United States is comprised of the state
courts, created by state constitutions and legislatures, and the federal
courts, created by the U.S. Congress under its constitutional powers.
In basic terms, a court is an organ of the government, belonging to
the judicial department, whose function is the application of the laws
to controversies brought before it.
• The role of the court is to decide the rules of law applicable in a par-
ticular case and to settle controversies between parties.
• The judicial process is carried out by the courts and consists of inter-
preting the laws and applying them in a just and fair manner to all
cases arising in litigation. In general, the courts do not give advi-
sory opinions except when a state constitution authorizes the state
supreme court to render an advisory opinion to the legislature with
regard to the constitutionality of a statute.
• Court jurisdiction is defined as the authority or power of the court
to hear matters of controversy or dispute. Since both state and fed-
eral courts exist, initiating the judicial process begins with the deci-
sion of which court should take the case. Court jurisdiction is either
original or appellate.
• A court of original jurisdiction (trial court) has the authority to
receive the case when begun, to try the case, and to render a decision
based on the presentation of facts and applicability of law.
• Appellate jurisdiction, which is set by constitution or statute, is the
authority to review, overrule, or revise the action of a lower court.
The appellate court hears complaints of error committed by an infe-
rior court, whose judgment or decision the appellate court is asked
to correct.
132 Law and Society: An Introduction

• The jurisdictions of courts are limited by constitutions or statutes.

• The court system in the United States at both the state and federal
levels is hierarchical. At the extreme top of the pyramid are supreme
courts or courts of last resort, which are appellate courts.
• Intermediate appellate courts function to hear the initial appeals of
trial courts. They may also serve as courts of original jurisdiction
when defined by constitution or statute. Trial court is typically the
starting point for most court cases. The decisions of trial courts are
subject to review by appellate courts.
• The judicial power of the state court system is limited by the due pro-
cess clause of the Fourteenth Amendment of the U.S. Constitution.
• It is in the state courts that most of the legal disputes that surface in
the lives of citizens are resolved. Disputes resolved by state courts
include traffic and criminal cases as well as civil cases, such as
domestic relations, personal injury and property damage, and real
estate transactions.
• Litigants may choose between a jury trial or bench trial. In a bench
trial, the judge determines the facts as well as the law. In a jury trial,
a jury determines the facts in accordance with the judge’s instruc-
tion on the law. In a criminal case, then, the jury decides whether
the defendant is innocent or guilty. In a civil case, the jury decides
whether the defendant is liable to the plaintiff.
• In the state court system, the next step up from the court of gen-
eral original jurisdiction is the intermediate appellate court. The
purpose of such a court is to relieve the burden on the state court
system by lessening the caseload of the supreme court. Procedurally,
in all states, a defendant convicted in a criminal case is entitled to
one appeal. Likewise, in civil cases, the appellate court must review
the verdict upon demand of the party aggrieved in the trial court.
Where an intermediate appellate court exists, appeals go directly to
that court, with only a few exceptions.
• The highest court in a state is usually called the supreme court. A
party aggrieved by the decision of the intermediate appellate court
can petition the state supreme court to review the case. Such a peti-
tion is called a “writ of certiorari.”
• The federal court system is prescribed by Article III of the U.S.
Constitution. The jurisdiction of the federal court system consists of:
the U.S. Supreme Court, 13 federal courts of appeals, a large number
of district courts that serve as courts of general jurisdiction, and a
number of specialized courts created by the U.S. Congress under the
“necessary and proper clause” of Article I.
Legal Structures 133

• The U.S. district courts are federal trial courts with general federal
jurisdiction. Each state has at a minimum one federal district court,
while some larger states have several.
• Each federal district court employs: a U.S. district court clerk, U.S. attor-
ney, U.S. marshal, and one or more U.S. magistrates, bankruptcy judges,
probation officers, and court reporters who serve the U.S. district courts.
• The jurisdiction of the federal district courts is set forth in the U.S. Code.
• The U.S. Congress, under the necessary and proper clause of Article I,
creates special courts from time to time to deal with particular kinds
of cases that are not permanently part of the federal court system.
• The U.S. courts of appeals were to relieve the U.S. Supreme Court
of the task of considering all appeals for cases originally decided by
the federal trial courts. They are empowered to review the final deci-
sions of federal district courts, except when direct review by the U.S.
Supreme Court is called for by statute.
• The U.S. Supreme Court was created in 1790 in accordance with
Article III, Section 1, of the U.S. Constitution. The U.S. Supreme
Court consists of the chief justice of the United States and eight
associate justices. The president of the United States is empowered
to nominate the U.S. Supreme Court justices, and appointments are
made with the advice and consent of the Senate.
• Law is viewed in various ways and consequently can be classified
differently. Often we think of law in terms of the system in which
it operates. Common law, for instance, is a system of jurisprudence
that originated in England that is based on written opinions that are
binding on future decisions of lower courts in the same jurisdiction.
Civil law is a system of legal science that originated under Roman
emperor Justinian in the sixth century A.D. and has evolved as a
means of regulating private relationships between individuals.
• The U.S. Constitution is the supreme law in America. No other fed-
eral or state law, statute, or case may impose upon its provisions. It
is divided into three parts. The first component, Articles I through
VII, divides governmental power among the three branches of gov-
ernment (legislative, executive, and judicial) and between the federal
and state governments. It also describes the relationships between
the states and sets out the means for amending the Constitution.
• A primary source of law is statutory law. Statutes are enacted by the
legislative branch of government (whether state or federal) to regu-
late areas within the legislature’s jurisdiction. Under the U.S. and
state constitutions, statutes are considered the primary source of law
in America (i.e., legislatures make the law [statutes] and courts inter-
pret the law [cases]).
134 Law and Society: An Introduction

• Laws are often classified according to the scope of the law. That is,
on the parties to whom they apply. We categorize law into two areas
according to their scope: private law and public law.
• Administrative law is the body of law governing administrative
agencies, i.e., agencies created by the U.S. Congress or state legis-
latures, such as the Social Security Administration and state social
welfare agency.
• In disputes taken to court, there is a common belief that there will be
a winner and a loser. In criminal cases, for instance, when the gov-
ernment brings charges against the defendant, a guilty verdict indi-
cates that the prosecution wins the case. If the defendant is found
not guilty, then the government essentially loses the case. In civil
matters, the plaintiff files suit against the respondent, which is also
the term to designate the person responding to an appeal.
• The process of lawmaking is distinguished by the extent to which
compromise is incorporated into the political system. While legis-
lators have their own viewpoints about which laws need immedi-
ate attention and which do not, citizens who are either proponents
or opponents of certain legislation constantly try to influence the
work of lawmakers. Considering that this dynamic takes place with
each and every legislator, it is no wonder that a legislative session can
become besieged with confrontation and confusion.
• Once laws are enacted, government must enforce them, for without
some type of enforcement, life would be chaotic and our social structure
dismantled to the point of nonexistence. In our society, it is the police
who are primarily responsible for the function of law enforcement.
• Local law enforcement consists of municipal police officers and
county sheriff’s deputies. Each enforces the criminal code of the state
as well as city and county ordinances. Typically the first to respond
to crime scenes and traffic accidents, city police officers maintain
legal authority within the geographical boundaries of the municipal-
ity, while sheriff’s deputies are responsible for law enforcement of the
larger jurisdiction of the county.
• Punishment is the authorized imposition of sanctions aimed at
enforcement of legal obligations. It constitutes the core, if not the
defining characteristic, of the legal order.

Questions in Review
1. What is the difference between original and appellate court
jurisdiction?
2. Give two examples of state courts of limited jurisdiction.
3. What is the purpose of a writ of certiorari?
Legal Structures 135

4. Define the original and exclusive jurisdiction of the U.S. Supreme

Court.
5. Compare and contrast constitutional, statutory, and case law.
6. In comparison to the other participants in the court system, how
important is the court manager? Why?
7. What are the advantages and disadvantages of plea bargaining?
8. How does a bill become law?
9. What are the benefits of community-based corrections programs?

Endnotes
1. White County v. Givin, 136 Ind. 562, 36 N.E. 237, (1968).
2. Fourteenth Amendment of the U.S. Constitution.
3. Some appeals (e.g., death penalty conviction) may be taken from trial court
decisions directly to the state supreme court.
4. Article III, Section 2, of the U.S. Constitution.
5. 42 U.S.C. Sec.1983 (1988).
6. Fourth Amendment of the U.S. Constitution.
7. E. Suggs. (2012, October 17). Atlanta council votes to spend $2 million for video
cameras. The Atlanta Journal-Constitution, p. A-1.
8. S. Goldman. (1982). Judicial selection and the qualities that make a “good”
judge. The Annals of the American Academy of Political and Social Science, 462,
112–124.
9. National Center for State Courts. (1997, July). Trial court performance stan-
dards and measurement system implementation manual (NCJ 161567). Bureau
of Justice Assistance Monographs Series. Washington, DC: Bureau of Justice
Assistance.
10. Ballew v. Georgia, 435 U.S. 223 (1978).
11. M.D. Hall. (1980). The court manager: A manual. Williamsburg, VA: The
National Association for Court Management.
12. M.D. Hall. (1980). The court manager: A manual. Williamsburg, VA: The
National Association for Court Management.
13. Pennsylvania municipality settles to end minority driver lawsuit. (1994, October
25). Drug Enforcement Report.
14. Judge OKs huge settlement in bribery suit against Honda. (1998, October 31).
The Detroit News.
15. Article I, Section 8, of the U.S. Constitution.
16. House Resolution 611, Report No. 105-830.
17. Article I, Section 7, of the U.S. Constitution.
18. J.R. Kraemer & R.C. Westerfeldt. (1997). How to comply with the 1995 lobbying
law. Acquisition Issues, 1997(Jan./Feb.).
19. J.Q. Wilson. (1968). Varieties of police behavior. Cambridge, MA: Harvard
University Press.
136 Law and Society: An Introduction

20. J.A. Conser & G.D. Russell. (2000). Law enforcement in the United States.
Gaithersburg, MD: Aspen Publishers.
21. G.J. Bayens, J.O. Smykla, & J.J. Williams. (1997). Jail type makes a difference:
Evaluating the transition from a traditional to a podular, direct supervision jail
across ten years. American Jails, 11(2), 32–39.
Social Control
5
Chapter Objectives

After reading this chapter you should be able to

• Identify both formal and informal social controls

• Explain the role of morals and values in our society
• Identify moral reasoning and how that impacts decisions
• Discuss the role of controlling dissent on social control
• Explore the cultural aspects of social control
• Detail the morphology issues involved in social control

Behavior and Social Controls

Social controls are the formal and informal means of enforcing norms.
Pretend that you have passed all the exams for this course with an A aver-
age. You have successfully completed all the course requirements, but you
receive an F as a course grade. When confronted, the professor states that
the administration had been pressuring her for awarding too many As. So
she selected every fourth student and assigned the selected students failing
grades. Unfortunately, you were one of the selected students. Your first state-
ment to the professor is: “You can’t do that!” Of course you are correct; the
professor cannot do that. There are certain expectations of behavior that the
professor is expected to comply with when assigning grades. These expecta-
tions of behavior act as social controls on the professor’s conduct.
In this chapter, we will examine social controls of behavior. Social controls
are methods used by members of a society to maintain order and promote the
predictability of behavior. When we think of social controls, generally law is
the first social control considered. However, the law is only one of many forms
of social control. We will also examine both formal and informal social con-
trols, the role of morals and values, moral reasoning, controlling dissent, cul-
tural aspects, and the morphology issues involved in social control.
Social control may be divided into two distinct processes: (a) internal
controls, the internalization of group norms resulting in internal controls,
and (b) external controls, controls imposed by external pressures.1 The

137
138 Law and Society: An Introduction

internalization of group norms refers to the consequence of the socialization

process. During the socialization process we develop rules of behavior for
our social group by recognizing what conduct is appropriate, expected, and
desirable for given situations. During this process, we acquire a motivation
to conform to the norms of our society without the need for external pres-
sures. For example, most of us do not steal—not because of the fear of being
caught, but because we were taught that stealing is inappropriate behavior
and it is contrary to our moral code. Most people conform to norms because
they have been taught that they should conform to them independent of any
anticipated reactions of others, i.e., internal controls on our behavior.
Norms make social life possible by making behavior predictable. For
example, we count on most persons most of the time to meet the expecta-
tions of others. We count on the professor to assign grades based on test
scores and what is in the syllabus. The professor expects the students to act
in an approved manner during class. Every group within a society, and even
human society itself, depends to a great extent on norms to regulate human
behavior and to make behavior predictable.2
Control through external social pressures includes both positive and
negative sanctions. For example, working hard to achieve a promotion is an
example of a positive sanction. Getting a speeding ticket for driving too fast is

BEHAVIORAL EXPECTATIONS
Behavioral expectations refers to the idea that each person in interac-
tion with another has certain expectations of the other person as to
what might take place. People in society find themselves orienting
themselves to each other. I expect that the other person will act predict-
ably, according to the role he or she is occupying in a certain context.
On the other hand, once I find myself in a social role, I feel a sense
of obligation to conform to it, or at a minimum, a necessity to orient
myself to it, even if only to the extent of using it to sensitize myself to
what is commonly done. As long as the other person and I mutually
orient ourselves in this way, smooth interaction can be assured.3 Take,
for example, an interaction in a college class between the professor and
a student when the student asks a question. The student has certain
expectations regarding the behavior of the professor. The professor
in turn has certain expectations regarding the actions of the student.
Suppose the professor states: “That is a good question, but I would pre-
fer to wait until next class to answer it.” What are the expectations of
the student to this response? How would the rest of the class react if the
student demanded an immediate answer to his question?
Social Control 139

an example of a negative sanction. Some social controls are formal or official,

while others are informal or unofficial. Criminal law is a type of formal control,
and public scorn is an informal type of social control. Often the types overlap.
Thus, the individual who commits sexual abuse on a child can be subjected to
both formal (criminal law) and informal (public condemnation) controls.

Informal Social Controls

Informal social controls consist of techniques whereby individuals accord

praise to those who comply with the expectations placed on them and show
displeasure with those who do not comply.4
Two frequent methods of informal social control are by the use of folk-
ways and mores. Folkways are established norms of common practice such
as those that specify modes of dress, language use, and etiquette. William
Graham Sumner, in his 1906 book, Folkways, describes folkways as customs
or habits that have grown up within a social group and are very common
among the members of this group. While mores are a type of folkways, not
all folkways are considered as important as mores to the society’s values. For
example, proper table manners are a less strongly held folkway. The viola-
tion of the less strongly held folkways produces only a mild reaction, such as
surprise or slight scorn.

SOCIAL CONTROL TERMS

culture: The language, beliefs, values, norms, and behaviors of a group
or society that are passed from one generation to the next.
ethnocentrism: The use of one’s own culture as a measure for judging
the ways of other individuals, groups, societies, and cultures.
Ethnocentrism generally leads to negative evaluations of others’
values, norms, and behaviors.
folkways: Norms that are not strictly enforced.
mores: Norms that are considered as essential to core values.
norms: Expectations of behavior or rules of behavior that have devel-
oped from our values.
social control: The formal and informal means of enforcing norms.
subculture: A group whose values and related behavior distinguish its
members from the larger culture, i.e., a world within a world.
taboo: A norm that brings revulsion when violated.
values: The standards by which people define what is good or bad,
desirable or undesirable, beautiful or ugly.
140 Law and Society: An Introduction

Sumner is credited with introducing the term mores. He defined mores

(pronounced MORE-rays) as societal norms that are associated with intense
feelings of right or wrong and definite rules of conduct that are not to be vio-
lated, for example, incest. Sumner pointed out that mores generally remain
unchanged from generation to generation. Any change in mores is usually very
gradual. He stated that mores vary from one society to another and that, in
most cases, each society believes that its own mores are the most natural and
desirable ones. Sumner called this belief ethnocentrism. He stated that ethno-
centrism is also defined as the tendency to view one’s own group as the center
of everything, and all others are scaled and rated with reference to it.
Sociologist Ian Robertson provides us with the following example of the
differences between folkways and mores:

A man who walks down a street wearing no clothes on the upper half of his
body is violating a folkway; a man who walks down the street wearing nothing
on the lower half of his body is violating one of our most important mores, the
requirement that people cover their genitals and buttocks in public.5

Robertson also noted that mores and folkways may vary according to
your group or status within the same society. For example, the male walking
down the street with his upper body uncovered is generally considered as
violating a folkway, whereas a female in the same circumstances would prob-
ably be violating one of our mores. The mores and folkways of a subculture
may vary from those of the general culture. Accordingly, the female walk-
ing down the street without any clothes would be acceptable conduct for a
subculture that lives in a nudist colony. In addition to folkways and mores,
there are taboos. A taboo is a norm so strongly embedded in our culture that
the thought of its violation is repulsive. For example, eating human flesh is
considered in most cultures as a taboo.
Anthropologist George Murdock attempted to determine if there are any
norms that were universals, i.e., norms that are found in all societies. He drew
up a list of customs concerning courtship, cooking, family, sex, funerals,
games, laws, music, myths, and toilet training. He concluded that while the
activities are present in all cultures, there are no universal norms. The norms
vary from one culture to another. For example, while no cultures permit gen-
eralized incest, it is not a taboo in all cultures. Some cultures allow men to
marry their own daughters; with the Burundi of Africa, to remove a certain
curse, the sons are required to have sexual relations with their mothers.6

Enforcement of Norms
Informal external social controls are techniques by which individuals praise
those who comply and condemn those who do not comply. The techniques
Social Control 141

include praise, ridicule, gossip, reprimands, criticisms, and ostracism.

Tom Tyler, in his study on why people obey the law, states that influence by
social groups can be instrumental and that social groups reward and pun-
ish their members, either by withholding or conferring signs of group sta-
tus and respect, or more directly by channeling material resources toward
or away from particular members. Such variations in rewards and costs are
not under the control of public authorities. Tyler also contended that group
influence also exerts normative pressure on people, because some individu-
als look to their social groups for information about appropriate conduct.
Such normative influences are similar to the influence of personal morality.
Accordingly, people’s behavior is strongly affected by the normative climate
created by others. He notes that group influence may also exert normative
pressure on people, because individuals look to their social group for infor-
mation about what constitutes appropriate conduct. Tyler’s classification
of informal social controls splits into two different bases: social relations
(friends, family, and peers) and normative values. His social relations clas-
sification is similar to the informal external classification generally used,
and the normative values classification is likewise similar to the informal
internal classification. Tyler contends that concerns about social relations
reflect the influence of other people’s judgments, whereas normative values
reflect a person’s own ethical views.
Tyler states that while the social relations aspect of control depends
on rewards and punishments, normative influences respond to different
factors. Because of normative influences, people focus on the relationship
between various kinds of potential behavior and their assessments of what
behavior is appropriate. The key feature of normative factors is that the
individual voluntarily complies with rules rather than responding to the
external situation.7

THE KANSAS TURNPIKE

The Kansas Turnpike starts south of Wichita and ends in Kansas City,
Kansas. The maximum speed limit on the turnpike is 70 miles per hour.
About 70% percent of the traffic drives between 70 to 80 miles per hour.
About 10% of the drivers drive in excess of 80 miles per hour. Less than
20% of the traffic drives at or below the posted maximum speed limit.
Are the large number of individuals who drive in excess of the maxi-
mum speed limit lawless individuals? If not, why then are they willfully
violating the law? Why would people, who would not think of stealing
and who would point out an error in their favor to a cashier, routinely
violate our speed control laws?
142 Law and Society: An Introduction

Unlike formal controls, there are no official persons to administer the

informal controls. As noted by Richard Schwartz, “The two main forms of
control may be distinguished: that which is carried out by specialized func-
tionaries who are socially delegated the task of intra-group control (formal),
and that which is not so delegated (informal).” He also notes that the two
forms of control are in competition, and the likelihood of formal control
arising at all in a given sphere is a decreasing function of the effectiveness of
informal controls.8
Since informal social controls are administered by friends, neighbors,
relatives, and other acquaintances, they tend to be more effective in societies
that are intimate and in which relations are face to face and less effective in
large complex societies. For example, the pressures to conform on the aver-
age person are greater in a small town in America than they would be in Los
Angeles, Chicago, or New York.

Social Norms and Deviance

One of the problems when studying the behavior of individuals within a
society is ascertaining what conduct constitutes deviant behavior. What may
be defined as deviant behavior by one group in society may not be considered
as deviance in another. Howard S. Becker looked at the relativity of devi-
ance. Becker states: “It is not the act itself, but the reactions to the act, that
make something deviant.”9 Thus, people’s behaviors must be viewed from the
framework of the culture in which the behavior takes place. Becker defines
deviance as people who violate rules, as result of which others react nega-
tively to them.
Who decides what constitutes deviant behavior? After pleading “no con-
test” to charges of taking kickbacks on government contracts, Spiro Agnew,
former governor of Maryland and U.S. vice president, stated: “Honesty is dif-
ferent things to different people.” In defining deviance, those who embrace
functionalism disagree with the conflict theorists. Functionalism takes the
pluralistic theory of social control, which posits that the various segments in
a pluralistic society, in an attempt to coexist, attain a more or less balanced
state, and that the balancing of the tensions produces the whole that we call
society. In contrast, the conflict theorists stress that each society is domi-
nated by a particular group whose basic purpose is to maintain control. Thus
the purpose of norms is to maintain the status quo so that those in power will
remain in power.

Moral Learning
Obedience to social norms to a great extent is based on a person’s moral
learning, which is a product of his or her socialization. Individual moral
Social Control 143

codes represent internally consistent principles by which people govern their

lives. A significant aspect of moral learning depends on our moral education.
Moral education is instruction focused on questions of right and wrong.
Moral education also includes the development of values, the standards by
which people judge what is important, worthwhile, and good. Individuals
receive moral education from many sources, including their family, church,
friends, and teachers—and even television. Schools have always been involved
in such education, either intentionally or unintentionally. For example, many
stories for young readers include a moral lesson.
During the 1970s, educators in the United States began to develop
special teaching methods to help students deal with moral questions. The
schools use four methods in moral education: (a) inculcation, (b) values
clarification, (c) value analysis, and (d) moral development. Often a com-
bination of these methods is used in an approach called comprehensive
moral education.
Inculcation refers to the effort to teach children the values that the teach-
ers believe lead to moral behavior. These values include honesty, compas-
sion, justice, and respect for others. One common method of teaching such
standards is to give appropriate praise and punishment. Another method is
by setting an example whereby the teachers reflect the desired values in their
own behavior.
Values clarification refers to the process of helping students develop
their own values and moral standards by teaching them a decision-making
process. The learning procedures stress setting goals, choosing thoughtfully
from alternatives, and acting on one’s own convictions.
Value analysis helps students apply techniques of logic and scientific
investigation to matters involving values. The importance of exploring all
alternatives, of gathering and evaluating the facts, and of making a logical
decision are stressed.
Moral development helps students improve their ability to judge moral
questions. The most extensive work on moral development was carried out
by Lawrence Kohlberg. He defined six stages of moral development. Stage
one is the most basic stage and stage six the most morally developed stage.
He considered that stages three and four form the conventional moral ori-
entation, and individuals who have reached stage five or six have developed
internalized-principle orientation. These individuals are controlled mainly
by their internal controls, whereas the individuals in stage one or two are
mainly controlled by external controls. His stages are listed as follows:

1. Obedience and punishment: This is the most basic stage and involves
a deference to superior power or prestige. At this stage, the orienta-
tion is toward avoiding trouble.
144 Law and Society: An Introduction

2. Instrumental relativism: This stage is characterized by naïve notions

of reciprocity. Orientation is a primitive form of equalitarianism
by attempting to satisfy your own needs by simple negotiation with
others.
3. Personal concordance: Orientation at this stage is directed toward
pleasing others and gaining their approval by conformity to per-
ceived majority values and beliefs.
4. Law and order: At this stage, the individual is committed to “doing
his or her duty.” Orientation is toward being respectful to those with
authority.
5. Social contract: This stage has a legalistic orientation, with commit-
ments being viewed in contractual terms, and individuals will avoid
efforts to break implicit or explicit agreements.
6. Individual principles: This stage emphasizes conscience, mutual
trust, and respect as the guiding principles for behavior.10

If individuals can be classified into these moral stages, then for law as
a social control element to be most effective, it would appear that we need
to know the stage of moral development of the individuals whose conduct
the law is attempting to control. If most of the people in society are at stages
one and two, then punishment would appear to be the most effective control
mechanism. For individuals in stages five and six, the effect of law as a con-
trolling mechanism would appear to be more limited. Individuals in those
higher stages should be more motivated by internalized principles than by
rewards and punishments.
There has always been opposition to the teaching of moral education in
schools. Many individuals feel that only the family and church should pro-
vide such instruction. Others argue that moral education takes class time that
should be used for such basic subjects as reading, writing, and mathematics.
Proponents of teaching moral education in schools believe that schools in a
democratic society must teach such values as hard work, honesty, fairness,
cooperation, and tolerance.

Formal Controls

As noted earlier, two key differences between informal and formal controls
are that formal controls are administered by specialized functionaries who
are socially delegated the task of intragroup control (formal), and they are
characterized by explicit established procedures. For example, in a major
corporation, the task of firing an employee for misbehavior is often delegated
to a personnel officer, and there are explicit established procedures regarding
the adverse personnel action.
Social Control 145

The law as a formal social control is rarely exercised by use of positive

rewards. For example, the good citizen who always obeys the law seldom
receives any formal recognition for his or her law-abiding behavior. Likewise,
governmental control is most often exercised by the use of or threat of pun-
ishment for noncompliance.
Donald Black contends that the “law is stronger where other social con-
trols are weaker” or that the “law varies inversely with other social controls.”11
Black uses rural Mexico as an example. If in one community the family has
more social control than in another, Black states that the community with
more social control exercised by the family will have fewer marital and fam-
ily disputes going into courts.
Law as a formal social control mechanism generally takes one of the fol-
lowing forms:

• Criminal law with the use of or threat of sanctions for prohibited conduct
• Administrative law in the context of licensing and inspections
• Tort law by enforcement of duties and standards of conduct
• Contract law in enforcement or threat of enforcement of contrac-
tual obligations

Donald Black defines law as “governmental social control.”12 He identifies

four specific styles of legal social control: penal, compensatory, therapeutic,

ARE THERE TOO MANY LAWS?

When a social problem becomes apparent, the common solution is to
pass a new law. Congress and the state legislatures pass thousands of
laws each year. The U.S. Constitution mentions three federal crimes
by citizens: treason, piracy, and counterfeiting. Today, there are over
4,500 crimes in federal statutes, according to a 2008 study conducted
by John Baker.13 The new laws are added to the volumes of laws that are
already in force. As the number of laws increases, the whole body of law
becomes more and more complex and difficult to manage. Everyone is
presumed to know the law. In practice, however, how can citizens pos-
sibly know the law and how it affects them? Does the enormous number
of laws enacted each year indicate that society expects too much of the
law? In addition, as the number of laws grows, more and more aspects
of life become regulated. And as the new laws interfere in the private
affairs of people, they tend to resent them more. In addition, federal
laws are different than state laws. In fact, state laws differ from state to
state; consequently, if one is traveling, how can they know the laws of
the different states they are passing through?
146 Law and Society: An Introduction

and conciliatory. The penal style is the criminal law model. His compensa-
tory style is somewhat analogous to a civil law model, and the therapeutic
style refers to rehabilitation. In the conciliatory style, problems are viewed
as conflicts, and the solution of any problem is identified as the resolution.
Black contends that any particular conflict in society may have any of the
four styles of social control applied to it, but with profound differences as to
how problematic situations are conceptualized and handled. As an example,
he cites the treatment of labor activists at the turn of the century by way of
the penal model rather than one of the other styles. By using the penal model,
the conflicts between early labor unions and business were conceptualized
and handled differently than they would have been had the conciliatory style
been used.

Criminal Law
A crime is defined by California Penal Code, Section 15, as:

[A]ct committed or omitted in violation of a law forbidding or commanding

it, and to which is annexed, upon conviction, either of the following punish-
ments; death, imprisonment, fine, removal from office, or disqualification to
hold and enjoy any office of honor, trust, or profit in this State.

The social control of delinquent behavior by the use of criminal law

and our criminal justice system is one of the most highly structured
social control systems used by society. Criminal law attempts to control
individuals by the use of the criminal sentencing process. For example,
California Rule of Court 410 states that the general objectives of sentenc-
ing include:

1. Protecting society
2. Punishing the defendant
3. Encouraging the defendant to lead a law-abiding life in the future
and deterring him or her from future offenses
4. Deterring others from criminal conduct by demonstrating its
consequences
5. Preventing the defendant from committing new crimes by isolating
him or her for the period of incarceration
6. Securing restitution for the victims of crime
7. Achieving uniformity in sentencing14

The rule also states that because, in some instances, the objectives may
suggest inconsistent dispositions, the sentencing judge shall consider which
objectives are of primary importance in the particular case. The judge should
Social Control 147

be guided by statutory statements of policy, the criteria in these rules, and the
facts and circumstances of the case.
What constitutes a criminal act must be described in a substantive crim-
inal statute that clearly specifies what conduct is prohibited. The government
must have legislated the act regarding a crime before the act in question was
committed. For example, if I sell my car on Monday to an individual without
collecting a sales tax and on Tuesday the state enacts a statute that makes it
a crime to sell a car without collecting the sales tax, the state could not pros-
ecute me for the act committed on Monday that is unlawful on Tuesday. The
law must exist before the act was committed in order to be a crime.
Next, to qualify as a crime, there must be a criminal penalty designated
as punishment for the act. Examine the following section from the Texas
Penal Code that describes the crime of public intoxication. First, the sec-
tion describes precisely what conduct constitutes intoxication. The crime of
public intoxication has not been committed until the conduct in question
satisfies the requirements of that section. Next, the law assigns a punishment
for the crime of public intoxication. Only those punishments authorized by
the law may be imposed.

Texas Penal Code, Section 49.02

(a) A person commits an offense if the person appears in a public place
while intoxicated to the degree that the person may endanger the
person or another.
(b) It is a defense to prosecution under this section that the alcohol or other
substance was administered for therapeutic purposes and as a part of
the person’s professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is
a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under
Section 49.04.
(e) An offense under this section committed by a person younger than
21 years of age is punishable in the same manner as if the minor
committed an offense to which Section 106.071, Alcoholic Beverage
Code, applies.15
Laws relating to criminal conduct may be divided into two general areas:
substantive and procedural. Substantive criminal law defines crimes and
annexes punishments. For example, Section 49.02 shown here is a substan-
tive criminal law. Procedural law sets forth the rules and requirements that
must be followed during the investigation, apprehension, and trial of indi-
vidual defendants. Procedural law is also concerned with carrying out court
orders and redress of injuries.
148 Law and Society: An Introduction

CLIENT CONFIDENTIALITY
Tacoma attorney Douglas Schafer helped bring down a corrupt judge.
Instead of getting commended for it, he faced a hearing by the bar asso-
ciation’s disciplinary board. Schafer was tipped off about the judge’s
activities by his client. The case presents a legal quandary: Does a law-
yer have a duty to report misconduct, even if it means betraying the cli-
ent’s confidences? Barrie Althoff, the head of the Washington State Bar
Association, stated: “While Mr. Schafer’s move was beneficial to society,
we also believe it violated the Rules of Professional Conduct.”
Schafer was tipped off by his client that a lawyer was involved in
shady business dealings. Later, when the lawyer was elected to the supe-
rior court bench, Schafer found himself in front of the lawyer, who was
now a judge. Schafer then informed local, state, and federal officials,
despite demands by his client to keep their conversations secret. The
state supreme court removed the judge from the bench and suspended
the judge’s law license.
Schafer contends that lawyers should be guardians of the law, not sim-
ply hired guns. Althoff stated that client confidentiality is a fundamental
principle of the law and that easing those restrictions would make clients
hesitant to speak frankly, undermining a lawyer’s ability to offer the best
advice.16 As a member of the grievance committee, how would you vote—
to punish or to reward?

Victimless Crimes
The concept of a victimless crime is based on the notion that society regards
certain acts as morally repugnant and attempts to restrain individuals from
committing them. Victimless crimes are differentiated from other crimes in
that they are consensual transactions or exchanges. In addition, there is an
apparent lack of harm to others. Many people do not consider them as legiti-
mate laws and simply refuse to obey them. For example, illegal betting via
the use of football pools exists in almost every large organization during the
period shortly before a Super Bowl. Because of the absence of victim com-
plaints and their low visibility, such laws are difficult to enforce.
Roughly one-fourth of all arrests in the United States in the last 10 years
have involved the victimless crimes of prostitution, drunkenness, violation of
liquor laws, gambling, pornography, and drug abuse violations. Drug abuse
crimes are of relatively recent origin. The first serious attempt to regulate
drug use in the United States was with the Harrison Act, which was passed in
1914. The legal reaction to drug abuse reached its apex in the 1960s. During
the 1960s, the possession of a small amount of marijuana was considered a
Social Control 149

felony offense in most states. Our severe reaction to drug abuse crimes may
have been more of a reaction to the subculture that was heavily involved in
the illegal use of drugs, i.e., the hippies. In most states today, the possession
of small amounts of marijuana is no longer a felony. Even further, in the 2012
elections, both Washington State and Colorado decriminalized personal
possession of marijuana. Drug offenders, however, still comprised about one-
third of all persons convicted of a felony in state courts.
It is estimated that 70% of Americans are involved in public gambling.
Legal and illegal gambling often exist side by side. What constitutes gam-
bling depends on state law. Every state has statutes that regulate gambling. In
many states, certain games of chance are legal and others are not. The federal
Congress has attempted to control gambling activities through the exercise
of its taxing powers by levying excise and occupational taxes on gambling
operations and its ability to control interstate commerce. Most law enforce-
ment researchers agree that criminal law is ineffective in controlling and pre-
venting individuals from engaging in illegal gambling.
The range of sexual conduct regulated by statutes is great and extensive.
A common justification for the complete regulation of sexual behavior is
to protect the sanctity of the family. There are laws prohibiting adultery in
order to restrict sexual relations outside of marriage. There is a complex set
of laws and regulations that controls the sale, distribution, and availabil-
ity of contraceptives, abortions, and artificial insemination. Laws against
prostitution have generally been unsuccessful attempts to control private
moral behavior through social-control measures. While state laws vary on
prostitution, most are considered as discriminatory against women, and
there is a tendency to regard only the women involved as offenders and not
their clients. There may be 500,000 women engaged in prostitution in the
United States.17

CRIMINAL OFFENSES: HOW MANY HAVE YOU COMMITTED?

Taking office supplies or using office equipment for personal use
Up to one year in jail and/or fine
Evading income taxes
Up to five years in prison and/or fine
Gambling illegally
Up to six months in jail and/or fine
Illegally copying computer software
Up to three years in prison and/or fine
Serving alcohol to minors
Up to one year in jail and/or fine
150 Law and Society: An Introduction

Committing adultery in states where it is illegal

Up to one year in jail and/or fine
Importing Cuban cigars
Up to one year in jail and/or fine
Stealing TV cable signals
Up to one year in jail and/or fine
Lying on a government job application
Up to one year in jail and/or fine
Drinking in public
Up to 30 days in jail and/or fine
Disregarding a jury summons
Up to 6 months in jail and/or fine

Note: Laws and penalties vary among the states.

White-Collar Crimes
The best way to rob a bank is to own it.
A joke that circulated in Washington, DC

White-collar crimes are nonviolent crimes committed for financial gains

by means of deception by persons having professional status or specialized
skills. Common white-collar crimes include counterfeiting, embezzlement,
forgery, fraud, and regulatory offenses. The prosecution of white-collar crime
is generally more complicated than that for street crime. The crime is often
based on trust between the victim and the offender, and the building of trust
expands the time frame of the crime, permitting repeated victimizations of
an unsuspecting victim. The extent of white-collar crime has been estimated
at over $50 billion per year. Despite its potential for extensive damage, we
tend not to regard it with the same fear as we do street crimes. Today, com-
puter-assisted crimes are a major part of white-collar crime.

Civil Commitment
The formal control of deviant behavior is not limited to criminal law. Civil
commitment is a noncriminal process that commits individuals, without their
consent, to an institution. Civil commitment is based on two legal principles:
(a) the right and responsibility of a state to assume guardianship over those
who do not have the ability to protect themselves, and (b) the police power of
a state to protect society. Every state has some form of civil commitment stat-
utes. The most common are those committing individuals who are a danger
Social Control 151

to self and others because of mental problems. Most recently, mental illness
has been an issue that has arisen out of the mass shootings such as the Sandy
Hook Elementary School shooting as well as the Colorado theater shooting. It
is estimated that on any given day, there are over 500,000 Americans confined
in mental wards. Recently, states have enacted civil commitment statutes for
sex offenders. There are criticisms regarding the use of civil commitment.
One group of critics contends that civil commitment statutes allow criminals
to escape the criminal punishment that they deserve. Another group con-
tends that civil commitment statutes allow for the punishment of individuals
who have not been convicted of a crime. Despite the controversy, the use of
civil commitment as a form of social control is on the increase.

Administrative Law
Administrative law deals chiefly with (a) the legal powers that are granted
to administrative agencies and (b) the rules that the agencies make to carry
out their powers. Administrative law centers on the operations of govern-
ment agencies. It ranks as one of the fastest growing and most complicated
branches of the law. Governments at the federal, state, and local levels
have established administrative agencies to do the work of government.
Administrative agencies deal with matters such as banking, aviation, educa-
tion, public health, social welfare, labor, commerce, and taxation. Generally,
the agencies are established as executive agencies under powers granted by
the legislatures.

Tort Law
A tort is a wrong or injury that a person suffers because of someone else’s
action. The wrong may cause bodily harm; damage a person’s property, busi-
ness, or reputation; or make unauthorized use of a person’s property. The
individual who suffers harm may sue in civil court the person or persons
responsible. Tort law deals with the rights and obligations of individuals
where harm has occurred. Tort cases often originate because of an automo-
bile or other type of accident. Other tort cases may occur because of inten-
tional misconduct. The act that causes the harm may result in the actor being
civilly liable under tort law concepts and criminally liable under criminal
law concepts. For example, I get mad at my neighbor and punch her in the
face. She could sue me in civil court for her injuries. The state could also take
action against me in criminal court for the assault.
Tort law uses the concept of “duty” to control the conduct of society’s
members. For example, when you drive an automobile, you have a “duty” to
drive safely. If you violate that duty and someone suffers harm, that person
can sue you.
152 Law and Society: An Introduction

Contract Law
Contract law deals with the rights and obligations of parties who enter into
contracts. A contract is defined as an agreement between two or more parties
that is enforceable by law. Contract law regulates individuals by requiring
individuals to abide by contractual obligations or face civil sanctions, gener-
ally in the form of monetary damages.

Controlling Dissent

Individual Rights versus Law and Order

In looking at issues involving the need to control dissent, it is necessary to
consider the pendulum-like swings that occur in between the public’s fear of
crime and the concept of individual rights. Most individuals involved in law
are oriented toward one or two opposing directions—individual rights or
law and order. The law-and-order orientation stresses the need to solve the
crime problem. The individual-rights orientation stresses the need to protect
an individual’s rights and often considers this a greater need than the need
to punish offenders. While too great an emphasis on individual rights will
restrict law enforcement and allow offenders to escape punishment, arbitrary
police practices that may occur under the law-and-order orientation may
infringe on constitutional rights.

Civil Disobedience
Civil disobedience is defined as the deliberate and public refusal to obey a
law.18 Many times, civil disobedience is used as a form of protest to attract
attention to what the protesters consider as unjust or unconstitutional. The
protesters hope that their actions will move others to correct the injustice. In
some situations, the individuals involved regard civil disobedience as a mat-
ter of individual or moral conviction, and the individuals refuse to obey a law
that they believe violates their personal principles.
Unlike acts committed during a riot, rebellion, and other types of violent
opposition to law and authority, civil disobedience acts are generally non-
violent. It may also be distinguished from law breaking in general by the
fact that individuals who are involved in civil disobedience generally accept
willingly their punishment for breaking the law. The Occupy Wall Street
movement in New York City spread to other major cities across the country.
Protesters refused to leave city property and essentially camped out in parks
to protest what they felt was economic injustice.
Throughout history, there has been disagreement over the concept of civil
disobedience. Many individuals claim that it is never right to deliberately
Social Control 153

ROSA LEE PARKS (1913–1999)

Rosa Parks was born in Tuskegee, Alabama, in 1913. She attended
Alabama State Teachers College. She held a variety of jobs, including
that of a seamstress. From 1967 to 1988, she worked on the staff of U.S.
Congressman John Conyers, Jr.
In 1955, Rosa Parks was arrested for violating a city ordinance that
required whites and blacks to sit in separate rows on city buses in
Montgomery, Alabama. Front rows of the bus were reserved for whites.
Blacks were required to sit in the back rows. She refused to give up her
seat in the middle of the bus when a white man wanted to sit in her
row. As the results of her actions, she lost her job as a seamstress. Her
actions helped bring about the Civil Rights Movement. In 1979, she was
awarded the Spingarn Medal for her contributions to the Civil Rights
Movement.
Parks’s action sparked Montgomery’s black leaders to boycott the
bus system as a protest against racial segregation. The leaders formed
an organization to run the boycott. A local black Baptist minister,
Martin Luther King, Jr., was chosen as president. For the next 382 days,
thousands of blacks refused to ride Montgomery’s buses. Their boycott
did not end until the U.S. Supreme Court declared the city ordinance
unconstitutional. The success of the boycott encouraged other mass
protests for civil rights.19

break the law. These individuals contend that defiance of the law will lead to
contempt for other laws and that any act of civil disobedience weakens soci-
ety and may lead to anarchy. Others claim that citizens have a duty to disobey
unjust laws, and that such law breaking is one of the best ways of testing the
constitutionality of laws.
Historians trace civil disobedience back to when the disciples of Jesus
Christ were ordered by the state to stop teaching. They are reported to have
stated that they would obey God rather than mortals. St. Thomas Aquinas
wrote in the 13th century that people must disobey earthly rulers when the
laws of the state disagree with the laws of nature or God. In colonial America,
the Quakers refused to pay taxes for military purposes. Prior to the Civil
War, abolitionists openly disobeyed the Fugitive Slave Law, which required
the return of runaway slaves. Susan B. Anthony was arrested in 1872 for
attempting to vote. Henry David Thoreau, in his 1849 essay “On the Duty
of Disobedience,” declared that people should refuse to obey any law they
believe is unjust. Mohandas K. Gandhi led the Indian nonviolence move-
ment to gain independence from British rule, and as a result, India gained
154 Law and Society: An Introduction

independence in 1947. During the Vietnam War, many opponents of the war
committed illegal acts in an attempt to change U.S. foreign policy. The illegal
acts included refusing to register for the draft, refusing to be inducted into
the military services, and refusing to pay taxes.

Freedoms of Speech, Association, and Press

Freedom of speech is the right to speak out publicly or privately. The right
covers all forms of expression, including books, newspapers, magazines,
radio, television, and motion pictures. Freedom of association is the right to
associate freely with others. Freedom of press refers to the right of the press
to publish information. None of the freedoms are absolute. As U.S. Supreme
Court Justice Oliver Wendell Holmes, Jr., once wrote: “The most stringent
protection of free speech would not protect a man in falsely shouting fire in
a theatre and causing panic.”
Denying individuals the freedoms of speech, association, and press has
historically been an effective method of controlling dissent. Most nondemo-
cratic nations deny these freedoms to their people. These nations generally
operate under the theory that the government knows best and that the free-
doms in question would interfere with the conduct of public affairs. Even
democratic nations put various limitations on the freedoms. For example,
all nations prohibit certain types of speech that they believe is clearly harm-
ful to the people. Drawing a line, however, between dangerous and permit-
ted speech can be difficult. This was broached by the Supreme Court of the
United States in Snyder v. Phelps, when members of the Westboro Baptist
Church protested at the funeral of a marine who died while on active duty in
Iraq. The Court ruled 8–1 in favor of free speech and upheld Westboro’s right
to picket a military funeral.
Generally, democratic nations place four major restrictions on freedom
of speech. First, laws covering libel and slander restrict speech or publica-
tions that wrongfully harms a person’s reputation. Second, all nations have
some forms of laws that forbid actions, speech, or publications that offend
public decency involving obscenities or pornography. Third, there are laws
that prohibit individuals from spying, treason, or urging violence. Fourth,
many laws protect a person’s right not to listen to speech that invades their
rights, e.g., using loudspeakers on crowded public streets.

Language Morphology Issues

All languages have certain things in common, including a sound pattern,

words, and grammatical structure. Grammatical structure is the manner in
which certain elements of language are related to others in forming units
Social Control 155

such as sentences. The two commonly identified aspects of structure are syn-
tax and morphology. Syntax involves relations among elements of a sentence,
including the arrangement of words in a particular order. Morphology in
one context refers to the patterns of word formation in a particular language,
including inflection, derivation, and composition.20 It also deals with the ele-
ments that serve as building blocks for words. The role of morphology varies
from language to language. All languages have some sort of word order. In
some, however, the word order is more important than in others. For exam-
ple, Latin allows for more variations in word order than English.
The morphology of a language allows us to build a social trust with the
past and the present and, to some extent, the future. It helps build common
understandings that are necessary for the establishment of norms and values.
It also creates a particular way of thinking and perceiving.

Summary

• Social controls are the formal and informal means of enforcing

norms. The law is, however, only one of many forms of social con-
trol. We also examined both formal and informal social controls,
the role of morals and values, moral reasoning, controlling dissent,
cultural aspects, and the language morphology issues involved in
social control.
• Social control may be divided into two distinct processes: (a) internal
controls—the internalization of group norms resulting in internal
controls, and (b) external controls—those imposed by external pres-
sures. The internalization of group norms refers to the consequence
of the socialization process. During the socialization process, we
develop rules of behavior for our social group by recognizing what
conduct is appropriate, expected, and desirable for given situations.
• Norms make social life possible by making behavior predictable. For
example, we count on most persons most of the time to meet the
expectations of others.
• Control through external social pressures includes both positive and
negative sanctions. For example, working hard to achieve a promo-
tion is an example of a positive sanction. Getting a speeding ticket
for driving too fast is an example of a negative sanction.
• Criminal law is a type of formal control, and public scorn is an infor-
mal type of social control. Often the types overlap.
• Two frequent methods of informal social control are by the use of
folkways and mores. Folkways are established norms of common
practice, such as those that specify modes of dress, language use,
156 Law and Society: An Introduction

and etiquette. While mores are a type of folkways, not all folkways
are considered as important as mores to the society’s values.
• Informal external social controls are techniques by which individu-
als praise those who comply and condemn those who do not comply.
The techniques include praise, ridicule, gossip, reprimands, criti-
cisms, and ostracism.
• Informal social controls are administered by friends, neighbors,
relatives, and other acquaintances; they tend to be more effective in
societies that are intimate and in which relations are face to face and
less effective in large complex societies.
• Obedience to social norms to a great extent is based on a person’s
moral learning, which is a product of his or her socialization.
Individual moral codes represent internally consistent principles by
which people govern their lives. A significant aspect of moral learn-
ing depends on our moral education.
• Two key differences between informal and formal controls are that
formal controls are administered by specialized functionaries who
are socially delegated the task of intragroup control (formal), and
they are characterized by explicit established procedures.
• The law as a formal social control is rarely exercised by use of posi-
tive rewards.

Questions in Review
1. Would you obey a law that you considered to be immoral? Explain
your answer.
2. Explain the role of mores and other informal social controls in the
orderly process of society.
3. Who determines which informal social controls are binding on us?
4. Who determines which formal social controls are binding on us?
5. Does the average citizen have a right to protest legally enacted stat-
utes that are value neutral?
6. Are there any circumstances in which informal social controls are
at odds with formal social controls? If so, which should the citizen
obey?

Endnotes
1. M.B. Clinard & R.F. Meier. (1998). Sociology of deviant behavior (10th ed.). Fort
Worth, TX: Harcourt Brace Jovanovich.
2. J.M. Henslin. (1993). Sociology: A down-to-earth approach (pp. 194–195).
Boston, MA: Allyn & Bacon.
Social Control 157

3. D. Milovanovic. (1994). A primer in the sociology of law (2nd ed., p. 122). New
York, NY: Harrow and Heston.
4. T. Shibutani. (1961). Society and personality: An interactionist approach to social
psychology (p. 426). Englewood Cliffs, NJ: Prentice-Hall.
5. I. Robertson. (1987). Sociology (3rd ed., p. 62). New York, NY: Worth.
6. J.M. Henslin. (1993). Sociology: A down-to-earth approach. Boston, MA: Allyn
& Bacon.
7. T. Tyler. (1990). Why people obey the law. New Haven, CT: Yale University Press.
8. R.D. Schwartz. (1954). Social factors in the development of legal control: A case
study of two Israeli settlements. Yale Law Journal 63(4), 471–491.
9. H.S. Becker. (1966). Outsiders: Studies in the sociology of deviance (p. 124). New
York, NY: Free Press.
10. L. Kohlberg. (1967). Development of moral character and ideology. In L.
Hoffman & M. Hoffman (Eds.), Review of child development research, Vol. 1.
New York, NY: Russell Sage.
11. D. Black. (1967). The behavior of law (p. 107). New York, NY: Academic Press.
12. D. Black. (1989). Sociological justice. New York, NY: Oxford University Press.
13. J.S. Baker. (2008). Revisiting the explosive growth of federal crimes. Legal
Memorandum, 2008(26). Retrieved June 29, 2013, from http://www.heritage.org/
research/reports/2008/06/revisiting-the-explosive-growth-of-federal-crimes
14. 2013 California Rules of Court. Rule 4.410. General objectives in sentencing.
Retrieved June 29, 2013, from http://www.courts.ca.gov/cms/rules/index.
cfm?title=four&linkid=rule4_410
15. Texas Penal Code, Section 49.02. Retrieved June 29, 2013, from http://www.
statutes.legis.state.tx.us/Docs/PE/htm/PE.49.htm
16. As reported in the Houston Chronicle, May 27, 2000, p. 14A.
17. R.F. Meirer & G. Geis. (1997). Victimless crime? Prostitution, drugs, homosexual-
ity, abortion. Los Angeles, CA: Roxbury.
18. Civil disobedience. (1999). World book (Electronic version). Chicago, IL: World
Book.
19. D.J. Garrow. (1999). Rosa Lee Parks. World book (Electronic version). Chicago,
IL: World Book.
20. C.L. Barnhart (Ed.). (1989). Morphology. American college dictionary. New
York, NY: Random House.
Lawmaking as a Form
of Social Control
6
Chapter Objectives

After reading this chapter you should be able to

• Identify the sources of law

• Explain the main difference between formal and informal rulemaking
• Distinguish between proclamations and executive orders
• Discuss the role of administrative lawmaking
• Discuss the role of judicial lawmaking
• Explain how lobbyists and PACs influence legislation

Introduction

Each year in the United States, public officials in local, state, and federal gov-
ernments contemplate an overabundance of new laws. In their capacity as
lawmakers, they enact laws that are fundamentally aimed at promoting the
public good. In most cases, this means that lawmakers function to pass those
laws that serve to protect our society.
When we consider lawmaking, often our first thought is that of the legisla-
tive branch of government. This method of lawmaking involves a process that
can be described as cyclical. First, an individual or group of persons in society
generates an idea. Next, the idea is forwarded to a political representative, who
works to gain support for it and to transform the idea into law. Finally, any
outcome legislation is returned back to the society in which it originated.
Throughout the legislative process, there are assorted filters that massage
the idea to ensure that any law that is produced will conform to language that
is readily identified as legal. Unfortunately, vagueness and verbosity are two
common enough characteristics of the language of law, such that the final leg-
islative document often looks very different than the original concept. When
this occurs, the rationale for originally introducing the idea gets amended or
even completely lost in the shuffle of the legislative process. Consequently,
disputes arise with regard to the interpretation of the law or perhaps its appli-
cation. Here, a second method of lawmaking occurs, as the judiciary may be
called upon to translate the law. The best example of this occurrence is the

159
160 Law and Society: An Introduction

undertakings of the U.S. Supreme Court, the judicial branch of government

that is responsible for explaining the U.S. Constitution.
Besides the legislative and judicial lawmakers, some public officials
whose responsibility it is to enact laws hold positions in the executive branch
of government. On the federal level, for example, executive orders have been
used by presidents since the founding of the United States in order to com-
municate the president’s policy preferences to his appointees, Congress,
and the public, and to guide agency heads in the exercise of their discre-
tion. (Executive orders are also used by many, if not all, of the governors
of the states.) Typically, presidents issue hundreds of executive orders. Over
the past four decades, presidents have averaged approximately 60 executive
orders annually.
In this chapter we examine the lawmaking responsibilities of each of
the three branches of government. After a brief discussion of the nature of
lawmaking, we examine legislative lawmaking and consider such concepts
as representation, committee work, role orientation, term limits, and con-
gressional investigation. Next we discuss administrative lawmaking by spe-
cifically focusing on rulemaking and adjudication. Also, a brief discussion
of proclamations and executive orders is provided. In the third part of this
chapter, we explore judicial lawmaking by considering the topics of writs
and lawmaking by precedents. The final section covers the subject of interest
groups and the influence of lobbying efforts and campaign contributions on
lawmaking in the United States.

SOURCES OF LAW
The Constitution: The U.S. Constitution is the “supreme law of
the land.” It provides the fundamental authority by which the
U.S. government operates and guarantees the freedom and
rights of all U.S. citizens. No laws may contradict any of the
Constitution’s principles, and no governmental authority in
the United States is exempt from complying with it. The fed-
eral courts have the sole authority to interpret the Constitution
and to evaluate the federal constitutionality of federal or state
laws. The Constitution is relatively short, containing only about
4,500 words.
International treaties: When the United States enters into a treaty,
it is also considered the supreme law of the land pursuant
to the U.S. Constitution, as are federal laws. In the case of a
conflict between a treaty and a federal statute, the one that is
later in time or more specific will typically control. Treaties to
Lawmaking as a Form of Social Control 161

which the United States are a party may be found in the U.S.
Treaties Service, the Statutes at Large, the Treaties and Other
International Acts series issued by the State Department, as
well as the United Nations Treaty Series. Treaties are often
implemented by federal statutes.
Slip laws: The first official publication of the statute is in the form
generally known as the “slip law.” In this form, each law is pub-
lished separately as an unbound pamphlet. The heading indi-
cates the public or private law number, the date of approval,
and the bill number. The heading of a slip law for a public law
also indicates the U.S. Statutes at Large citation. If the statute
has been passed over the veto of the president, or has become
law without the president’s signature because he did not return
it with objections, an appropriate statement is inserted instead
of the usual notation of approval.
The Office of the Federal Register, National Archives and
Records Administration, prepares the slip laws and provides
marginal editorial notes giving the citations to laws mentioned
in the text and other explanatory details. The marginal notes
also give the U.S. Code classifications, enabling the reader
immediately to determine where the statute will appear in the
code. Each slip law also includes an informative guide to the
legislative history of the law consisting of the committee report
number, the name of the committee in each house, as well as
the date of consideration and passage in each house, with a ref-
erence to the Congressional Record by volume, year, and date.
A reference to presidential statements relating to the approval
of a bill or the veto of a bill when the veto was overridden and
the bill becomes law is included in the legislative history as a
citation to the Weekly Compilation of Presidential Documents.
Copies of the slip laws are delivered to the document rooms
of both houses, where they are available to officials and the
public. They may also be obtained by annual subscription or
individual purchase from the Government Printing Office and
are available in electronic form for computer access. Section
113 of Title 1 of the U.S. Code provides that slip laws are com-
petent evidence in all the federal and state courts, tribunals,
and public offices.
Federal Statutes at Large: The U.S. Statutes at Large, prepared
by the Office of the Federal Register, National Archives and
Records Administration, provides a permanent collection of
162 Law and Society: An Introduction

the laws of each session of Congress in bound volumes. Each

volume contains a complete index and a table of contents. From
1956 through 1976, each volume contained a table of earlier laws
affected. These tables were cumulated for 1956-1970 and sup-
plemented for 1971-1975 in pamphlet form and discontinued
in 1976. From 1963 through 1974, each volume also contained
a most useful table showing the legislative history of each law
in the volume. This latter table was not included in subsequent
volumes because the legislative histories have appeared at the
end of each law since 1975. There are also extensive marginal
notes referring to laws in earlier volumes and to earlier and
later matters in the same volume.
Under the provisions of a statute originally enacted in 1895,
these volumes are legal evidence of the laws contained in them
and will be accepted as proof of those laws in any court in the
United States.
The Statutes at Large are a chronological arrangement of the
laws exactly as they have been enacted. There is no attempt to
arrange the laws according to their subject matter or to show
the present status of an earlier law that has been amended on
one or more occasions. The code of laws serves that purpose. An
example of a cite to a federal statute is: 42 U.S.C. sec. 9607, which
would refer to Title 42, section 9607, of the U.S. Code. Federal
statutes may be challenged in federal court.
United States Code: The U.S. Code contains a consolidation and
codification of the general and permanent laws of the United
States arranged according to subject matter under 50 title
headings, in alphabetical order to a large degree. It sets out the
current status of the laws, as amended, without repeating all
the language of the amendatory acts except where necessary for
that purpose. The code is declared to be prima facie evidence
of those laws. Its purpose is to present the laws in a concise and
usable form without requiring recourse to the many volumes
of the Statutes at Large containing the individual amendments.
The code is prepared by the Law Revision Counsel of the
House of Representatives. New editions are published every 6
years, and cumulative supplements are published after the con-
clusion of each regular session of the Congress. The code is also
available in electronic form for computer access.
Titles that have been revised and enacted into positive law
are legal evidence of the law, and the courts will receive them as
Lawmaking as a Form of Social Control 163

proof of those laws. Eventually, all the titles will be revised and
enacted into positive law. At that point, they will be updated by
direct amendment.
Agency rules and executive orders: Federal administrative bod-
ies issue rules and regulations of a quasi-legislative character;
valid federal regulations have the force of law and preempt
state laws and rules. Rules and regulations may be issued only
under statutory authority granted by Congress. The president
also has broad powers to issue executive orders. An executive
order is a directive from the president to other officials in the
executive branch. Proposed and final rules, executive orders,
and other executive branch notices are published daily in the
Federal Register.
Judicial opinions: The United States is a common-law coun-
try. Every U.S. state has a legal system based on the common
law, except Louisiana (which relies on the French civil code).
Common law has no statutory basis; judges establish com-
mon law by applying previous decisions (precedents) to pres-
ent cases. Although typically affected by statutory authority,
broad areas of the law—most notably relating to property, con-
tracts, and torts—are traditionally part of the common law.
These areas of the law are mostly within the jurisdiction of the
states, and thus state courts are the primary source of common
law. Federal common law is relatively narrow in scope, being
limited primarily to clearly federal issues that have not been
addressed by a statute.
Reported decisions of the U.S. Supreme Court and of most of
the state appellate courts can be found in the official reporter of
the respective courts. Those decided from at least 1887 to date
can also be found in the National Reporter System, a system
of unofficial reporters. Decisions of lower state courts are not
published officially, but they can usually be found in unofficial
reports. When referring to a case, a citation typically includes
the name of the case and the volume and pages of the reporter,
as well as the date. For example, as follows: Miranda v. Arizona,
384 U.S. 436 (1966). Citations to federal courts of appeals are
found in volumes abbreviated F., F.2d, or F.3d, and district
courts are in volumes abbreviated F. Supp. The decisions of
other specialized federal courts, such as claims of bankruptcy
decisions, are also reported.
164 Law and Society: An Introduction

State constitutions and statutes: State constitutions are the

supreme law within the state. State statutes must conform to
the respective state’s constitution. An example of a state statute
is Article 16 of chapter 38 of the Kansas Statutes Annotated,
which is known as the Kansas juvenile justice code. It reads:
The primary goal of the juvenile justice code is to promote public safety,
hold juvenile offenders accountable for such juveniles’ behavior and
improve the ability of juveniles to live more productively and responsi-
bly in the community. To accomplish this goal, juvenile justice policies
developed pursuant to the Kansas juvenile justice code shall be designed
to: (a) Protect public safety; (b) recognize that the ultimate solutions to
juvenile crime lie in the strengthening of families and educational insti-
tutions, the involvement of the community and the implementation of
effective prevention and early intervention programs; (c) be community
based to the greatest extent possible; (d) be family centered when appro-
priate; (e) facilitate efficient and effective cooperation, coordination and
collaboration among agencies of the local, state and federal government;
(f) be outcome based, allowing for the effective and accurate assess-
ment of program performance; (g) be cost-effectively implemented and
administered to utilize resources wisely; (h) encourage the recruitment
and retention of well-qualified, highly trained professionals to staff all
components of the system; (i) appropriately reflect community norms
and public priorities; and (j) encourage public and private partnerships
to address community risk factors.

Citation: To ensure uniformity in citation styles for all law-related

publications or writings, most citations to legal sources in
the United States follow the Uniform System of Citation, also
known as the Bluebook. The Bluebook is updated every few
years by a consortium of law schools. Among other things, the
Bluebook provides the abbreviations for all state and federal
courts, statutory compilations, and administrative rules.

Source: Charles W. Johnson. (1997). How our laws are made (22nd
ed.). Washington, DC: U.S. Government Printing Office.

Nature of Lawmaking

Lawmaking is perhaps best understood by exploring some of the perspec-

tives that have been embraced by sociologists and legal scholars. While many
views exist with regard to the social need for creating law, our purpose here is
to illustrate a few explanations of how law is created when greater emphasis is
Lawmaking as a Form of Social Control 165

placed on the lawmaking process as a whole. Consequently, we introduce the

relationship between why and how laws are enacted and rejected, by briefly
considering three perspectives of lawmaking: the group-influence model, the
functionalist view, and the conflict perspective.

Group-Influence Model
The group-influence model of lawmaking assumes that the actions of out-
side forces have a direct effect on decision making. This view of lawmaking
focuses on the nature of political persuasion from sources within the law-
making framework (e.g., party affiliation and constituency). Lawmaking is
reasoned to be a necessary function to ensure public order and the protection
of members of society from harm. The difficulty with this perspective is that
the more powerful the persuasion, the more influence a party or constituent
has in deciding what actually constitutes harm and, consequently, what laws
are to be enacted.

Functionalist View
Another perspective of lawmaking suggests that social behaviors become
acceptable norms when codified into written laws. This functionalist view
maintains that norms reflect a consensus, a common value system developed
through socialization, the process by which individuals learn the culture of
their society. Laws then provide a repository of norms, which in turn con-
tribute to the functioning of the social system and are said to develop to meet
certain assumed “needs” of the system. This theory of lawmaking is based on
the premise that all aspects of a society (e.g., institutions, roles, norms, etc.)
serve a purpose and that all are indispensable for the long-term survival of the
society. Further, it acknowledges that a supplemental but equally important
function of lawmaking is to provide the authority to enforce norms through
legal institutions. Any behavior jeopardizing the harmony, stability, equilib-
rium, and the status quo is considered antisocial and therefore punishable.
The application of the functionalist perspective to lawmaking is
derived from a larger theoretical construct in the field of sociology. This
approach gained prominence in the works of 19th-century sociologists,
particularly those who viewed societies as organisms. The French soci-
ologist Emile Durkheim argued that it was necessary to understand the
“needs” of the social organism to which social phenomena correspond.
Other writers have used the concept of function to mean the interrelation-
ships of parts within a system, the adaptive aspect of a phenomenon, or its
observable consequences.
166 Law and Society: An Introduction

Conflict Perspective
The conflict perspective holds that lawmaking contributes to social, political,
and economic control of “have-not” members of society while maintaining
the position of the powerful. Laws establish norms that reflect the power of
one section of a society over the other sections. Moreover, lawmaking allows
for a certain amount of coercion to occur by means of promulgating sanc-
tions to maintain these rules. Laws are thought to originate as a means by
which one class or caste dominates or exploits others.
The process of lawmaking and how the justice system operates to protect
the rich and powerful is apparent in the following selection from Law, Order
and Power by William Chambliss and Robert Seidman.

In America it is frequently argued that to have “freedom” is to have a system

which allows one group to make a profit over another. To maintain the exist-
ing legal system requires a choice. That choice is between maintaining a legal
system that serves to support the existing economic system with its power
structure and developing an equitable legal system accompanied by the loss
of “personal freedom.” But the old question comes back to plague us: freedom
for whom? Is the black man who provides such a ready source of cases for the
welfare workers, the mental hospitals, and the prisons “free”? Are the slum
dwellers who are arrested night after night for “loitering,” “drunkenness,” or
being “suspicious” free? The freedom protected by the system of law is the
freedom of those who can afford it. The law serves their interests, but they
are not “society”; they are one element of society. They may in some complex
societies even be a majority (though this is very rare), but the myth that the
law serves the interests of “society” misrepresents the facts.1

Legislative Lawmaking

The word legislation is derived from the Latin words meaning “law” and
“bringing.” Originally, the word had more of a religious connotation, in that
an act of legislation was an act of a high priest revealing a divine law. Today,
we understand legislation to mean a set of social rules that a majority of leg-
islators have declared to be enforceable laws.
It is universally understood that any legislative body maintains as its
primary function the business of lawmaking. The chief function of the U.S.
Congress, for example, is lawmaking. Moreover, it has been suggested that
Congress should carry out that function so that laws are responsive to the
views and needs of a majority and should do so in a way that allows the full
range of significant views to be heard.2
The idea of representation is also a powerful concept with regard to law-
making. As representatives, lawmakers seek to address the needs of their
Lawmaking as a Form of Social Control 167

constituents through the legislative process. Many of the ideas of these con-
stituents find their way into the legislature. Sometimes, appearances are
made by average citizens, lobbyists, and in some cases, celebrities such as
sports figures and famous actors, who testify about specific legislative needs.
Likewise, it is not unusual for a legislator to receive a steady stream of mail
from citizens who have a vested interest in a particular piece of legislation.
This is especially true with the ease of which electronic mail (email) is sent.
Whether proponent or opponent, they constitute the legislator’s many and
diverse “clientele.” Moreover, since reelection to office is so closely tied to
taking care of constituents, citizen demands are often translated into legisla-
tion, especially those that affect groups of people rather than just one indi-
vidual. Consider the following excerpt from John Stuart Mill’s Representative
Government, which addresses the legislative duty of representation.

It is evident that the only government which can fully satisfy all the exigencies
of the social state is one in which the whole people participate; that any par-
ticipation, even in the smallest public function, is useful; that the participation
should everywhere be as great as the general degree of improvement of the
community will allow; and that nothing less can be ultimately desirable than
the admission of all to a share in the sovereign power of the state. But since all
cannot, in a community exceeding a single small town, participate personally
in any but some very minor portions of the public business, it follows that the
ideal type of a perfect government must be representative.3

Representation of the people is ever present in the lawmaking process.

However, it is only one of many requirements that a senator or representa-
tive must consider when maneuvering what has been rightly called the “leg-
islative maze.” The role of the legislator in the legislative process requires
wearing different hats at different times to get the job done. It requires the
ability to develop alternative strategies and tactics in different stages of the
legislative process, often in response to a multitude of unexpected and ever-
changing circumstances.
Successful lawmaking is often contingent upon its members adhering to
a set of game rules. By following such rules, a legislator can expect greater
respect by other lawmakers and greater effectiveness in achieving the passage
of legislation. Such norms fulfilling these functions include:4

Apprenticeship: Early in a member’s career, he or she should concen-

trate on learning the rules of the body, keep a low profile, pay serious
attention to committee work, and defer to the senior members of his
or her party on major policy issues.
Cordiality: With so many members representing so many diverse inter-
ests, and so many diverse and potentially contentious policy issues
168 Law and Society: An Introduction

to be dealt with, a continuing reliance on courtesy to other members

is essential to moving policy through the two houses to completion.
Legislative work: Members are expected to spend their time on legis-
lative duties in committee and on the floor and not sacrifice those
duties for grandstanding before the media. Members are expected
to gain influence by being patient and doing their share of the work,
and eventually they will be recognized by their colleagues.
Reciprocity: With each bill required to go through so many stages where
different members have influence, it is felt to be imperative that law-
makers put emphasis on helping each other or nothing will move.
This requires an approach to legislating that stresses bargaining, log-
rolling, and compromise.
Specialization: Members are expected to specialize in one or perhaps
a few legislative areas, primarily coinciding with subcommittee
assignments. In this way, they develop in-depth expertise and can,
over time, know their subject so well that other members could
respect their views. Given the vast array of topics with which law-
makers have to deal, this fosters a division of labor that makes sure
the work is covered.
Seniority: Seniority lends support to the maintenance of smooth work-
ing relationships in the legislature by avoiding disruptive and poten-
tially destructive struggles for selecting committee chairs, thus
promoting harmony among members. It also provides incentives
for members to return to the legislature, specialize on committees,
concentrate on doing good committee work, and develop policy spe-
cialties. The lawmaking process benefits by having genuine policy
experts on hand with whom other members can consult in delibera-
tions and defer in debate.

Legislative Committee Work

Perhaps the most important aspect of legislative duty is the work a lawmaker
performs in committee. Committees are miniature legislatures, where bills
are introduced, debated, analyzed, and revised before some action is taken.
Although one of the chief functions of a committee is to screen out undesir-
able bills, arbitrary refusal of a committee to report a bill can be remedied by
a motion to discharge the committee from further consideration of the bill.
If the motion is approved by a majority of members in a respective house, the
bill is forwarded to the full house for further consideration.
There are permanent house and senate committees that are commonly
referred to as “standing” committees. These standing committees generally
contain from 5 to 25 members. As a rule, all standing committee meetings are
open to the public. Exceptions to this rule occur but are extremely rare. Most
Lawmaking as a Form of Social Control 169

committee business is conducted during the meeting, and action requires

the approval of a majority of those appointed and serving on the committee.
In addition to standing committees, there are other types of commit-
tees set up by the legislature to achieve certain goals. Special committees, for
example, may be created by a house or senate resolution and appointed by
the speaker and/or the senate majority leader, and are generally appointed
to serve during a specified time period. The number of members assigned to
these committees varies according to the specifications of the resolution. For
the most part, these committees are used to study and investigate topics of
special interest, such as education, technology, etc. Another type of commit-
tee is the joint committee, which is commonly established by statute. These
committees, like standing committees, are appointed for specific time peri-
ods, but membership consists of both senators and representatives.

Role Orientation
The kind of behavior that a lawmaker exhibits while performing the duties of
legislative office is predicated on role orientation. Behavior reflects the charac-
ter of the legislator in terms of how he or she uses authority to make decisions
in the legislative process. Four distinctive legislative role orientations that exist
in the political power structure are ritualist, tribune, inventor, and broker.5
Protocol found within the legislative process has gradually over time
become fixed. The modern legislator is expected to master rules of parlia-
mentary procedure and must abide by them throughout the legislative pro-
cess. Hence the potential exists for the lawmaker to become immersed in
assembly rules and routines, rather than in legislative functions within the
political system. In other words, parliamentary ritual rather than parliamen-
tary goals absorbs the attention of the legislator. This orientation to the legis-
lative role is referred to as the ritualist approach.6
A second legislative role orientation is that of tribune.7 The central theme
of this orientation is that legislators are chosen by popular election to repre-
sent their constituents and therefore gain favor for them. This advocacy role
requires the legislator to fight for the popular demands of the people.
Another major orientation, which has been called inventor, provides that
legislative bodies should be governing bodies, capable of performing policy-
making duties.8 Legislators are expected to be aware of public issues and be
capable of determining potential solutions. Through rational deliberation
and persuasive argument in debate, alternative solutions to social problems
can be explored and result in needed legislation.
The final role orientation that we want to introduce is that of broker.9 As
the term suggests, this orientation is one in which the legislator functions as
a middleman. The fundamental tasks are to introduce laws that are of inter-
est to constituents, deal with pressure from interest groups, and ensure that
170 Law and Society: An Introduction

legislation will not be detrimental to society as a whole. The legislator is both

representative and ambassador and must be adept at compromise, diligence,
and conciliation.

Term Limits
Term limits are statutory constraints placed on the number of terms a leg-
islator may serve in office. Proponents of term limits suggest that limitation
reduces the potential for incumbents’ abuses of power and their obsession
with reelection, thus making government more responsive. Some supporters
have called for a constitutional amendment similar to the Twenty-Second
Amendment, which limits the president’s tenure, in order to establish uni-
form limits. Opponents of term limits cite the benefits of seniority and
experience conferred by years in legislative office. They argue that with leg-
islative turnover comes large numbers of newcomers with little or no politi-
cal experience. Opponents of term limits maintain that such inexperience
will hurt voters, as rookie legislators find it hard to navigate the bureaucracy.
Moreover, limits force out well-regarded politicians who have formed strong
ties with their constituents and erode democracy by taking away voters’
rights to choose their representative.
The issue of term limits became particularly important in America dur-
ing the early 1990s, when the matter squarely focused on members of the U.S.
Congress. In U.S. Term Limits Inc. et al. v. Thornton et al., the U.S. Supreme
Court ruled in a 5 to 4 decision that states do not have the constitutional
authority to regulate the tenure of federal legislators. The case involved an
amendment to the Arkansas State Constitution that would have prohibited a
candidate from appearing on an election ballot after serving three terms in
the House of Representatives and two terms in the Senate. The court ruled
that states are prohibited from imposing additional qualifications for holding
federal office because the offices are inherent to the Constitution, and thus
not in the realm of the Tenth Amendment. The significance of this case is
that the only way to limit congressional terms is to amend the Constitution.
Despite the Republican majority declaring term limits a priority in their
1994 “Contract With America,” the 104th Congress twice failed to muster
the two-thirds votes needed for a constitutional amendment. This hot topic
has not disappeared from the national agenda. On January 23, 2013, Senator
David Vitter (R-LA) introduced an amendment to the U.S. Constitution that
would limit the number of terms that a Congress member may serve to three
in the House of Representatives and two in the Senate. Interestingly, a poll
conducted by the Gallup organization reveals that 75% of Americans say
they would vote for a law that would limit the number of terms that members
of Congress and the U.S. Senate can serve.10 This debate does not seem to be
going away.
Lawmaking as a Form of Social Control 171

U.S. TERM LIMITS, INC. V. THORNTON, 514 U.S. 779 (1995)

Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring
opinion. Thomas, J., filed a dissenting opinion, in which Rehnquist,
C.J., and O’Connor and Scalia, JJ., joined. [The below case has been
edited and abridged.]
Respondent Hill filed this suit in Arkansas state court challeng-
ing the constitutionality of §3 of Amendment 73 to the Arkansas
Constitution, which prohibits the name of an otherwise eligible can-
didate for Congress from appearing on the general election bal-
lot if that candidate has already served three terms in the House of
Representatives or two terms in the Senate. The trial court held that
§3 violated Article I of the Federal Constitution, and the Arkansas
Supreme Court affirmed. A plurality of the latter court concluded that
the States have no authority “to change, add to, or diminish” the age,
citizenship, and residency requirements for congressional service enu-
merated in the Qualifications Clauses, U. S. Const., Art. I, §2, cl. 2, and
Art. I, §3, cl. 3, and rejected the argument that Amendment 73 is con-
stitutional because it is formulated as a ballot access restriction rather
than an outright disqualification of congressional incumbents.
Section 3 of Amendment 73 to the Arkansas Constitution violates
the Federal Constitution. The power granted to each House of Congress
to judge the “Qualifications of its own Members,” Art. I, §5, cl. 1, does
not include the power to alter or add to the qualifications set forth in
the Constitution’s text. This Court reaffirms that the constitutional
qualifications for congressional service are “fixed,” at least in the sense
that they may not be supplemented by Congress.
So too, the Constitution prohibits States from imposing congressio-
nal qualifications additional to those specifically enumerated in its text.
Petitioners’ argument that States possess control over qualifications as
part of the original powers reserved to them by the Tenth Amendment
is rejected for two reasons. First, the power to add qualifications is not
within the states’ pre-Tenth Amendment “original powers,” but is a
new right arising from the Constitution itself, and thus is not reserved.
Second, even if the states possessed some original power in this area,
it must be concluded that the Framers intended the Constitution to be
the exclusive source of qualifications for Members of Congress, and
that the Framers thereby “divested” States of any power to add quali-
fications. That this is so is demonstrated by the unanimity among the
courts and learned commentators who have considered the issue; by the
172 Law and Society: An Introduction

Constitution’s structure and the text of pertinent constitutional provi-

sions, including Art. I, §2, cl. 1, Art. I, §4, cl. 1, Art. I, §6, and Art. I,
§5, cl. 1; by the relevant historical materials, including the records of
the Constitutional Convention and the ratification debates, as well as
Congress’s subsequent experience with state attempts to impose quali-
fications; and, most importantly, by the fundamental principle of our
representative democracy … that the people should choose whom they
please to govern them, Powell, 395 U.S., at 547. Permitting individual
States to formulate diverse qualifications for their congressional repre-
sentatives would result in a patchwork that would be inconsistent with
the Framers’ vision of a uniform National Legislature representing the
people of the United States. The fact that, immediately after the adoption
of the Constitution, many States imposed term limits and other qualifi-
cations on state officers, while only one State imposed such a qualifica-
tion on Members of Congress, provides further persuasive evidence of a
general understanding that the qualifications in the Constitution were
unalterable by the States.
A state congressional term limits measure is unconstitutional when
it has the likely effect of handicapping a class of candidates and has the
sole purpose of creating additional qualifications indirectly. The Court
rejects petitioners’ argument that Amendment 73 is valid because it
merely precludes certain congressional candidates from being certified
and having their names appear on the ballot, and allows them to run
as write in candidates and serve if elected. Even if petitioners’ narrow
understanding of qualifications is correct, Amendment 73 must fall
because it is an indirect attempt to evade the Qualifications Clauses’
requirements and trivializes the basic democratic principles underlying
those Clauses. Nor can the Court agree with petitioners’ related argu-
ment that Amendment 73 is a permissible exercise of state power under
the Elections Clause, Art. I, §4, cl. 1, to regulate the “Times, Places and
Manner of holding Elections.” A necessary consequence of that argu-
ment is that Congress itself would have the power under the Elections
Clause to “make or alter” a measure such as Amendment 73, a result
that is unfathomable under Powell. Moreover, petitioners’ broad con-
struction is fundamentally inconsistent with the Framers’ view of the
Elections Clause, which was intended to grant States authority to pro-
tect the integrity and regularity of the election process by regulating
election procedures, see, e.g., Storer v. Brown, 415 U.S. 724, 730, 733, not
to provide them with license to impose substantive qualifications that
would exclude classes of candidates from federal office.
Lawmaking as a Form of Social Control 173

State imposition of term limits for congressional service would

impact such a fundamental change in the constitutional framework
that it must come through a constitutional amendment properly passed
under the procedures set forth in Article V. Absent such an amend-
ment, allowing individual states to craft their own congressional quali-
fications would erode the structure designed by the Framers to form a
“more perfect Union.” (The Arkansas Supreme Court’s opinion that the
amendment was unconstitutional was affirmed [upheld].)

Congressional Investigation
Lawmaking often requires the legislative body to conduct congressional
investigations. Congress and its committees have the capacity to convene in
order to gather information that is needed to discharge its legislative function.
A primary function of the congressional investigation is to hold hearings in
which witnesses from executive agencies, private persons, and organizations
are called to provide this information.
While there is actually no provision in the U.S. Constitution that spe-
cifically grants authority to Congress to conduct investigations, a few U.S.
Supreme Court decisions have firmly established the investigatory power of
Congress. Two such historical cases are Watkins v. United States, 354 U.S. 178
(1957), and Barenblatt v. United States, 360 U.S. 109 (1959).
In Watkins v. United States, the Court described the breadth of the power
of inquiry:

The power of the Congress to conduct investigations is inherent in the legisla-

tive process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed stat-
utes. It includes surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them. It comprehends
probes into departments of the federal Government to expose corruption,
inefficiency or waste.
…We [U.S. Supreme Court] are mindful of the complexities of modern
government and the ample scope that must be left to the Congress as the
sole constitutional depository of legislative power. Equally mindful are we
of the indispensable function, in the exercise of that power, of congres-
sional investigations. The conclusions we have reached in this case will not
prevent the Congress, through its committees, from obtaining any infor-
mation it needs for the proper fulfillment of its role in our scheme of gov-
ernment. The legislature is free to determine the kinds of data that should
be collected.11
174 Law and Society: An Introduction

In Barenblatt v. United States, the issue before the Court was whether a
subcommittee of the House of Representatives was authorized to compel a
witness to provide testimony with regard to his political and religious beliefs
without infringing on privileges against self-incrimination as well as First
Amendment rights. The Court reaffirmed its position in the Watkins case,
finding that House Rule XI, 83d Congress, legitimized the authority of leg-
islative inquiry (i.e., the investigation here involved was related to a valid
legislative purpose). The following excerpts from the case provide the essence
of the Court’s ruling:

Rule XI has a “persuasive gloss of legislative history” which shows beyond

doubt that, in pursuance of its legislative concerns in the domain of “national
security,” the House of Representatives has clothed the Committee with perva-
sive authority to investigate.… Where First Amendment rights are asserted to
bar governmental interrogation, resolution of the issue always involves a bal-
ancing by the courts of the competing private and public interests at stake in
the particular circumstances shown.… [T]he balance between individual and
the governmental interests here at stake must be struck in favor of the latter.12

INVESTIGATING THE PRESIDENT:

ARTICLES OF IMPEACHMENT
Three U.S. presidents have faced Articles of Impeachment: Andrew
Johnson in 1868, Richard Nixon in 1974, and William Clinton in 1998.
In Johnson’s and Clinton’s cases, the Senate’s vote fell short of the nec-
essary two-thirds, while Nixon resigned before the House could vote
on the articles.
A glimpse of the impeachment process

1. The House Judiciary Committee deliberates over whether to

initiate an impeachment inquiry.
2. The House Judiciary Committee adopts a resolution seeking
authority from the entire House of Representatives to conduct
an inquiry. Before voting, the House debates and considers the
resolution. Approval requires a majority vote.
3. The House Judiciary Committee conducts an impeachment
inquiry, possibly through public hearings. At the conclusion of
the inquiry, articles of impeachment are prepared. They must
be approved by a majority of the committee.
4. The House of Representatives considers and debates the arti-
cles of impeachment. A majority vote of the entire House is
required to pass each article. Once an article is approved, the
Lawmaking as a Form of Social Control 175

president is, technically speaking, “impeached” (i.e., subject to

trial in the Senate).
5. The Senate holds trial on the articles of impeachment approved
by the House. The Senate sits as a jury while the chief justice of
the Supreme Court presides over the trial.
6. At the conclusion of the trial, the Senate votes on whether to
remove the president from office. A two-thirds vote by the
members present in the Senate is required for removal.

Andrew Johnson’s vetoes of several Reconstruction laws passed by

a Republican Congress played a major role in provoking Radical
Republican attempts to impeach and remove Johnson from the presi-
dency. Representative Thaddeus Stevens and other Radical Republicans
responded to Johnson’s opposition by passing laws designed to restrain
his power. One of those laws, the Tenure of Office Act, required the
president to first obtain the Senate’s consent before removing any
federal appointees from office. Johnson, however, ignored the law by
dismissing Secretary of War Edwin Stanton. Less than a week after
Johnson’s action, the House voted to impeach Johnson and force the
Senate to decide his fate.
A Judiciary committee voted 5 to 4 in favor of impeachment on
November 25, 1867. But after a two-day House floor debate in December,
Johnson escaped impeachment on a 108 to 57 vote. In January 1868,
though, the Senate invoked the Tenure of Office Act and reinstated
Stanton as war secretary. Unabated by the impeachment proceedings,
Johnson again ousted Stanton in February, in effect daring his enemies
in the Congress to continue their vendetta.
The Senate took its first vote in May, which resulted in a tally of 35 to
19, one short of the two-thirds needed for impeachment. After votes on
two more impeachment articles also fell short, the Republicans aban-
doned their effort. Although the attempt to impeach had failed, it did
severely affect the political future of Johnson. He served the remaining
10 months of his term but lost the Democratic presidential nomina-
tion to New York governor Horatio Seymour. Johnson lost bids for the
Senate in 1869 and the House in 1872. Finally, in 1874, Johnson was
elected to the Senate. He took the oath in March 1875 but died a few
months later.

Richard Nixon found his presidency in a web of political spying and

sabotage, bribery, and the illegal use of campaign funds. The disclo-
sure of these activities, and the administration’s cover-up resulted in
176 Law and Society: An Introduction

the indictments of some 40 government officials and, ultimately, the

resignation of the president.
In June 1972, a burglary occurred at the Democratic national head-
quarters in the Watergate apartment complex in Washington, DC. In
January 1973, hints of a cover-up emerged at the trial of six men found
guilty of the Watergate burglary. With a Senate investigation under
way, Nixon announced in April the resignations of his top aides, H.R.
Haldeman and John Ehrlichman, and the dismissal of White House
counsel John Dean III. Dean was the star witness at televised Senate
hearings that exposed both a White House cover-up of Watergate and
massive illegalities in Republican fundraising in 1972. The hearings
also disclosed that Nixon had routinely audiotaped his office meetings
and telephone conversations.
In October 1973, Spiro Agnew resigned as vice president, then
pleaded no contest to a negotiated federal charge of evading income
taxes on alleged bribes. President Nixon nominated the House minor-
ity leader, Rep. Gerald R. Ford, to replace Agnew, and Congress con-
firmed Ford as the new vice president in December 1973.
In July, the U.S. Supreme Court ordered Nixon to surrender sub-
poenaed tapes that revealed that Nixon had halted an FBI probe of the
Watergate burglary six days after it occurred. It was, in effect, an admis-
sion of obstruction of justice, and impeachment appeared inevitable.
The House Judiciary Committee by a vote of 27 to 11, with 6 of the
committee’s 17 Republicans joining all 21 Democrats, referred three
impeachment articles to the full membership.
Nixon resigned in August 1974, the first president ever to do so. A
month later, President Ford issued an unconditional pardon for any
offenses Nixon might have committed as president, thus impeding pos-
sible prosecution. President Nixon died in April 1994 in New York City
of a massive stroke.

Bill Clinton’s impeachment by the House of Representatives, on charges

of lying under oath to a federal grand jury and obstructing justice, mes-
merized the American public for more than one year. The daily, heavy
dose of media coverage/entertainment centered around Independent
Counsel Ken Starr’s investigation into the details of Clinton’s extra-
marital affair with White House intern Monica Lewinsky. President
Clinton was impeached on two (Articles I and III) of four articles of
impeachment. In Article I, which was adopted on a 228 to 206 vote,
Clinton was found to have provided false and misleading testimony to
a U.S. federal grand jury concerning the details of his relationship with
Lawmaking as a Form of Social Control 177

a subordinate government employee. Clinton also gave prior false and

misleading testimony in a federal civil rights action brought against
him.
In Article III, which was adopted on a 221 to 212 vote, Clinton was
accused of obstructing justice by tampering with witnesses and taking
other steps to conceal his affair with Lewinsky. He was also accused of
concealing evidence that had been subpoenaed in a federal civil rights
action brought against him. The Senate acquitted Clinton of the perjury
charge on a vote of 55 to 45 and of the obstruction of justice charge on
a vote of 50 to 50.

Administrative Lawmaking

Administrative agencies are sometimes referred to as the fourth branch of

government, because they engage in lawmaking through rulemaking and
adjudication. Rulemaking is the administrative equivalent of the legislative
process of enacting statutes. Adjudication, on the other hand, is a process by
which an administrative agency issues an order. It is a function that most
closely resembles the functions performed by the courts.
The procedures for federal agency rulemaking are governed by the
Federal Administrative Procedure Act of 1946 (APA).13 The Administrative
Procedure Act defines rule as

[T]he whole or part of an agency statement of general or particular applica-

bility and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of
an agency and includes the approval or prescription for the future of rates,
wages, corporate or financial structures or reorganizations thereof, prices,
facilities, appliances, services or allowances therefore or of valuations, costs,
or accounting, or practices bearing on any of the foregoing.14

There are two types of rulemaking: formal and informal. Formal rule-
making is very time consuming in its procedure and therefore not used as
often as informal rulemaking. Section 553(c) of APA provides that for formal
rulemaking: “When rules are required by statute to be made on the record
after opportunity for an agency hearing, sections 556 and 557 of this title
apply.” Sections 556 and 557 contain requirements for trial-type hearings,
including the right of interested parties to present evidence, conduct cross-
examination of witnesses who introduce opposing evidence, and submit
rebuttal evidence, and (subject to the possibilities of taking official notice of
matters) the rulemaking record is the exclusive basis for the decision.
178 Law and Society: An Introduction

Informal rulemaking basically exists by default. The APA gives agencies

the discretion whether or not to hold oral hearings in informal rulemaking.
In an important Supreme Court case, 435 U.S. 519 (1978), the Court empha-
sized that this discretion was not ordinarily reviewable (i.e., that courts were
not free to require additional procedures of agency rulemaking than appear
in section 553). However, some specific statutes require that agencies provide
an opportunity for oral presentation of data or views or a public hearing, and
a few statutes require agencies to provide an opportunity for cross-examina-
tion in informal rulemaking. The APA does not specify a minimum period
for comment, but a reasonable time must be allowed for comment, with “rea-
sonableness” judged in relation to the particular facts of each rulemaking.
Executive Order 12,866 provides that most rulemakings “should include a
comment period of not less than 60 days.” Individual agency statutes occa-
sionally specify the length of the comment period. As a practical matter, most
agencies do provide 60 or more days for complex or controversial rules. Even
when a shorter comment period is allowed, the agency may extend the period
for comment where a legitimate request for extension has been received. In
such a case, of course, notice of the extension is normally published in the
Federal Register. The Federal Register is a government publication used to
publish federal rules, orders, and related documents and announcements.
The agency must consider the comments and publish the final rule, explain-
ing how it responds to the comments.
Whether rulemaking involves a trial-type hearing (formal) or public-tes-
timony hearing (informal), both types follow a protocol of notice and issu-
ance of its final rules. Section 553 of APA provides that the Notice of Proposed
Rulemaking (NPRM) must state the “time, place, and nature” of the public
proceedings. Furthermore, the statutory procedure for issuing rules involves a
notice of the proposed rule, which is published in the Federal Register. Agencies
often give additional notice of the rulemaking beyond that provided in the
Federal Register. General notice may be accomplished through press releases to
general, trade, or other specialized publications, and notices to clearinghouse
services and loose-leaf reporter services. Specific or “targeted” notices are fre-
quently given to persons and trade associations most likely to be affected by
the rule. Advertisements in the media may be used or letters sent directly to
concerned individuals or groups. Failure to publish makes a final rule unen-
forceable against any person not having actual and timely notice of its terms.
The APA requires that the statement of basis and purpose be incorporated
in the rule, so the statement of basis and purpose is also subject to the publica-
tion requirement. Additionally, in 1996, a new Chapter 8 was added to Title 5
of the U.S. Code establishing a requirement for congressional review of agency
rules. Under this process, all federal agencies, including independent regula-
tory agencies, are required to submit each “rule” to both houses of Congress
and to the General Accounting Office (GAO) before it can take effect. For each
Lawmaking as a Form of Social Control 179

rule, agencies must submit: (a) a report containing “a concise general state-
ment relating to the rule” and the rule’s proposed effective date; (b) a copy of
any cost-benefit analysis and descriptions of the agency’s actions under the
Regulatory Flexibility Act and Unfunded Mandates Reform Act; and (c) any
other information or statements required by relevant executive orders.
Adjudications are the administrative equivalent of court trials. These pro-
ceedings, which are governed by the APA, often involve the issuing, suspend-
ing, or revoking of a permit or license. Moreover, adjudication hearings can
be required when an employee is being suspended or terminated from gov-
ernment employment. Justice Holmes defined adjudications as a process that
“investigates, declares and enforces liabilities as they stand on present or past
facts and under laws supposed to already exist. That is the purpose and end.”15
Under the APA, if the statute under which the agency is conducting the
program calls for an adjudication (e.g., enforcement action, license applica-
tion, etc.) that is “required to be determined on the record after an agency
hearing,” then the APA procedures apply.16 Normally, these procedures
require an administrative law judge (ALJ) to preside over the hearing and
make an initial decision in the case. Although they are not judges under
Article III of the Constitution, ALJs are given special status and indepen-
dence by the APA. They are selected by the agencies from a special register
maintained by the Office of Personnel Management (OPM). The selection
process for ALJs is quite rigorous, requiring at a minimum that the ALJ
applicant must have at least 7 years of experience in administrative law and/
or trial experience as an attorney or a judge. OPM then rates the applicant on
a l00-point scale, based on a review of the applicant’s experience, a written
demonstration, and a panel interview. Agencies then fill vacancies from the
top of the register, which prevents agency officers from appointing ALJs they
believe will be sympathetic to the agency’s point of view in specific cases.17
The APA permits the use of other types of adjudicators in certain cases.
When not required by statute to be heard under section 554 of the APA,
the agency is free to use any employee to preside so long as the due process
clause is satisfied. In many cases, the agency head presides over a hearing.
Moreover, Congress can specify in other laws that a particular type of adju-
dicator be used (e.g., a panel of lawyers, engineers, etc.). As a consequence,
there are various major programs where specified non-ALJ adjudicators pre-
side over cases that are otherwise similar to APA cases.18
The final stage in the adjudication process is the issuance of a decision.
If an agency officer makes the initial decision, it is considered final, absent
an appeal. On the other hand, if an ALJ conducts a hearing, APA provides
that the ALJ shall render either an initial or a recommended decision. Initial
decisions are viewed as final, but recommended decisions must be forwarded
to the agency for action. Once the decision is made by the agency, the losing
party has an opportunity to seek review by the agency head. If no review
180 Law and Society: An Introduction

is sought, the agency head may call the case up “on his own motion.” The
APA provides that the agency head has “all the powers which it would have
in making the initial decision.”19 This broad power to reverse or modify the
presiding officer’s decision has been tempered by court decisions requiring
the agency head to justify such a change, especially where the initial decision
was based on witness testimony.20 Agencies have discretion as to how they
structure their appeal process. Some agency heads (usually boards or com-
missions) hear appeals themselves; others have created special panels or indi-
vidual positions to hear such appeals.21

THE OFFICE OF THE FEDERAL REGISTER

Description: The Office of the Federal Register (OFR) was estab-
lished in 1935 for the purpose of creating a centrally located
system for filing and publishing presidential documents as well
as agency regulations and administrative notices. The Federal
Register Act (44 U.S.C. Chapter 15) governs the operations of
the Federal Register publication system. The statute specifically
requires that executive orders and presidential proclamations
shall be published in the Federal Register, except for those that
do not have general applicability and legal effect, or those that
only affect federal agencies, officers, agents, or employees (44
U.S.C. 1505(a)). In practice, most executive orders are pub-
lished in the Federal Register regardless of subject matter.
Access to presidential documents and federal register information:
The Federal Register publication system is the product of a
unique partnership between the National Archives and Records
Administration (NARA) and the Government Printing Office
(GPO). The support of these two institutions helps guarantee
the public’s right to know about the actions of their govern-
ment. In recent years, the OFR/GPO partnership has developed
online editions of every major Federal Register publication and
posted them on the GPO Access service to make it easier for
citizens to gain access to essential legal information.
The Federal Register is available in an online edition, mak-
ing new executive orders accessible to the American public on
a very timely basis. To help the public sort through the vari-
ous sources of information, the NARA website (www.archives.
gov/index.html) allows direct access to the text of executive
orders and other presidential documents. They also provide
other information services, such as our historical Codification
Lawmaking as a Form of Social Control 181

of Proclamations and Executive Orders and an online index of

executive orders, which tracks dates of issuance, amendments,
revocations, and dates of publication in the Federal Register.
The Federal Register publication system also depends on its
partnership with the Government Depository Library program
to ensure that all citizens have equal access to government
information. More than 1,350 depository libraries throughout
the United States and its Territories provide free public access
to Federal Register publications in print and online via the GPO
Access service. Federal Register publications are among the
most frequently used databases on the GPO Access service.

Source: Ray Mosley. (2000). The impact of executive orders on the

legislative process: Executive lawmaking? Testimony before the
Subcommittee of the Legislative and Budget Process.
U.S. Congress.

Proclamations and Executive Orders

The president engages in lawmaking in several different ways. First, as chief
executive, he leads the executive branch of government, thereby possessing
absolute supervision over the various administrative agencies. This occurs as
a result of Congress delegating rule-making authority and emergency powers
to the president, cabinet heads, and agency heads, which in effect allows them
to legislate. Second, the president has a great deal of authority by virtue of his
position under the Constitution (e.g., military commander-in-chief and direc-
tor of foreign relations). Third, under federal statutes, the president has consid-
erable decision-making power, particularly in matters regarding foreign trade.
The president issues proclamations and executive orders. Proclamations
and executive orders have much the same legal effect, but are usually used for
different purposes. In general, proclamations are used for ceremonial events
(e.g., declaring National Flag Day) or broad policy statements (e.g., Lincoln’s
Emancipation Proclamation), while executive orders are issued for routine
determinations under statutory authority. They are numbered, in separate
series, in order of issuance and published in the Federal Register.22
Although administrative orders are not numbered as proclamations
and executive orders, they have much the same effect. They are usually used
for particular determinations under foreign trade statutes or to implement
foreign policy decisions. Orders are dated only, not numbered; presidential
determinations are numbered by year and number (e.g., no. 90-9). They are
published in the Federal Register and Title 3, CFR.
182 Law and Society: An Introduction

VETERANS DAY PROCLAMATION: BY THE PRESIDENT

OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Whether they fought in Salerno or Samarra, Heartbreak Ridge or
Helmand Province, Khe Sanh or the Korengal Valley, our veterans are
part of an unbroken chain of men and women who have served our
country with honor and distinction. On Veterans Day, we show them
our deepest thanks. Their sacrifices have helped secure more than two
centuries of American progress, and their legacy affirms that no matter
what confronts us or what trials we face, there is no challenge we cannot
overcome, and our best days are still ahead.
This year, we marked the 200th anniversary of the War of 1812. We
began to commemorate the 50th anniversary of the Vietnam War.
We welcomed our veterans back home from Iraq, and we continued
to wind down operations in Afghanistan. These milestones remind us
that, though much has changed since Americans first took up arms
to advance freedom’s cause, the spirit that moved our forebears is
the same spirit that has defined each generation of our service mem-
bers. Our men and women in uniform have taught us about strength,
duty, devotion, resolve—cornerstones of a commitment to protect and
defend that has kept our country safe for over 200 years. In war and in
peace, their service has been selfless and their accomplishments have
been extraordinary.
Even after our veterans take off the uniform, they never stop serving.
Many apply the skills and experience they developed on the battlefield
to a life of service here at home. They take on roles in their communities
as doctors and police officers, engineers and entrepreneurs, mothers
and fathers. As a grateful Nation, it is our task to make that transi-
tion possible—to ensure our returning heroes can share in the oppor-
tunities they have given so much to defend. The freedoms we cherish
endure because of their service and sacrifice, and our country must
strive to honor our veterans by fulfilling our responsibilities to them
and upholding the sacred trust we share with all who have served.
On days like this, we are called to reflect on immeasurable burdens
that have been borne by so few. We pay tribute to our wounded, our
missing, our fallen, and their families—men and women who have
known the true costs of conflict and deserve our deepest respect, now
and forever. We also remember that our commitments to those who
have served are commitments we must honor not only on Veterans Day,
but every day. As we do so, let us reaffirm our promise that when our
Lawmaking as a Form of Social Control 183

troops finish their tours of duty, they come home to an America that
gives them the benefits they have earned, the care they deserve, and
the fullest opportunity to keep their families strong and our country
moving forward.
With respect for and in recognition of the contributions our ser-
vice members have made to the cause of peace and freedom around
the world, the Congress has provided (5 U.S.C. 6103(a)) that November
11 of each year shall be set aside as a legal public holiday to honor our
Nation’s veterans.
NOW, THEREFORE, I, BARACK OBAMA, President of the United
States of America, do hereby proclaim November 11, 2012, as Veterans
Day. I encourage all Americans to recognize the valor and sacrifice
of our veterans through appropriate public ceremonies and private
prayers. I call upon Federal, State, and local officials to display the flag
of the United States and to participate in patriotic activities in their
communities. I call on all Americans, including civic and fraternal
organizations, places of worship, schools, and communities to support
this day with commemorative expressions and programs.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh
day of November, in the year of our Lord two thousand twelve, and of
the Independence of the United States of America the two hundred and
thirty-seventh.23

BARACK OBAMA

EXECUTIVE ORDER—PREVENTING AND RESPONDING

TO VIOLENCE AGAINST WOMEN AND GIRLS GLOBALLY
By the authority vested in me as President by the Constitution and the
laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. (a) Recognizing that gender-based violence under-
mines not only the safety, dignity, and human rights of the millions
of individuals who experience it, but also the public health, economic
stability, and security of nations, it is the policy and practice of the
executive branch of the United States Government to have a multi-year
strategy that will more effectively prevent and respond to gender-based
violence globally.
(b) Under the leadership of my Administration, the United States has
made gender equality and women’s empowerment a core focus of our
184 Law and Society: An Introduction

foreign policy. This focus is reflected in our National Security Strategy,

the Presidential Policy Directive on Global Development, and the 2010
U.S. Quadrennial Diplomacy and Development Review. Evidence dem-
onstrates that women’s empowerment is critical to building stable,
democratic societies; to supporting open and accountable governance;
to furthering international peace and security; to growing vibrant
market economies; and to addressing pressing health and education
challenges.
(c) Preventing and responding to gender-based violence is a cornerstone
of my Administration’s commitment to advance gender equality and
women’s empowerment. Such violence significantly hinders the ability
of individuals to fully participate in, and contribute to, their communi-
ties—economically, politically, and socially. It is a human rights viola-
tion or abuse; a public health challenge; and a barrier to civic, social,
political, and economic participation. It is associated with adverse
health outcomes, limited access to education, increased costs relating
to medical and legal services, lost household productivity, and reduced
income, and there is evidence it is exacerbated in times of crisis, such as
emergencies, natural disasters, and violent conflicts.
(d) The executive branch multi-year strategy for preventing and
responding to gender-based violence is set forth in the United States
Strategy to Prevent and Respond to Gender-based Violence Globally
(Strategy). The Strategy both responds to and expands upon the request
in section 7061 of House conference report 112-331 accompanying
the Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2012 (Division I of Public Law 112-74), for the exec-
utive branch to develop a multi-year strategy to prevent and respond to
violence against women and girls in countries where it is common.
Sec. 2. Creating an Interagency Working Group. There is established an
Interagency Working Group (Working Group) to address gender-based
violence, which shall coordinate implementation of the Strategy by the
executive departments and agencies that are members of the Working
Group (member agencies) in accordance with the priorities set forth in
section 3 of this order.
(a) The Working Group shall be co-chaired by the Secretary of State
and the Administrator of the United States Agency for International
Development (Co-Chairs). In addition to the Co-Chairs, the Working
Group shall consist of representatives from:
(i) the Department of the Treasury;
(ii) the Department of Defense;
Lawmaking as a Form of Social Control 185

(iii) the Department of Justice;

(iv) the Department of Labor;
(v) the Department of Health and Human Services;
(vi) the Department of Homeland Security;
(vii) the Office of Management and Budget;
(viii) the National Security Staff;
(ix) the Office of the Vice President;
(x) the Peace Corps;
(xi) the Millennium Challenge Corporation;
(xii) the White House Council on Women and Girls; and
(xiii) other executive departments, agencies, and offices, as designated
by the Co-Chairs.
(b) Within 120 days of the date of this order, the Co-Chairs shall con-
vene the first meeting of the Working Group to:
(i) establish benchmarks to implement the Strategy; and
(ii) determine a timetable for periodically reviewing those benchmarks.
(c) Within 18 months of the date of this order, the Working Group shall
complete a progress report for submission to the Co-Chairs evaluating
the U.S. Government’s implementation of the Strategy.
(d) Within 3 years of the date of this order, the Working Group shall
complete a final evaluation for submission to the Co-Chairs of the U.S.
Government’s implementation of the Strategy.
(e) Within 180 days of completing its final evaluation of the Strategy
in accordance with subsection (d) of this section, the Working Group
shall update or revise the Strategy to take into account the information
learned and the progress made during and through the implementation
of the Strategy.
(f) The activities of the Working Group shall, consistent with law, take
due account of existing interagency bodies and coordination mecha-
nisms and will coordinate with such bodies and mechanisms where
appropriate in order to avoid duplication of efforts.
Sec. 3. Strategy to Prevent and Respond to Gender-based Violence Globally.
Member agencies shall implement the Strategy to prevent and respond to
gender-based violence globally based on the following priorities reflected
in the Strategy:
(a) Increasing Coordination of Gender-based Violence Prevention and
Response Efforts Among U.S. Government Agencies and with Other
Stakeholders.
186 Law and Society: An Introduction

(i) Member agencies shall draw upon each other’s expertise, respon-
sibility, and capacity to provide a comprehensive and multi-faceted
approach to issues relating to gender-based violence.
(ii) Member agencies shall deepen engagement and coordination with
other governments; international organizations, including multilateral
and bilateral actors; the private sector; and civil society organizations,
such as representatives of indigenous and marginalized groups, foun-
dations, community-based, faith-based, and regional organizations
(including those that serve survivors), labor unions, universities, and
research organizations. The Working Group shall consider a range of
mechanisms by which these stakeholders may provide input to the U.S.
Government on its role in preventing and responding to gender-based
violence globally.
(b) Enhancing Integration of Gender-based Violence Prevention and
Response Efforts into Existing U.S. Government Work. Member agen-
cies shall more comprehensively integrate gender-based violence pre-
vention and response programming into their foreign policy and foreign
assistance efforts. This integration shall also build on current efforts
that address gender-based violence, such as the U.S. National Action
Plan on Women, Peace, and Security; the Global Health Initiative; the
President’s Emergency Plan for AIDS Relief; the U.S. Government’s
work to counter trafficking in persons; and the U.S. Government’s
humanitarian response efforts. The Working Group shall coordinate
these different efforts as they relate to gender-based violence to leverage
the most effective programs and to avoid duplication.
(c) Improving Collection, Analysis, and Use of Data and Research to
Enhance Gender-based Violence Prevention and Response Efforts.
Member agencies shall work to promote ethical and safe research, data
collection, and evidence-based analyses relating to different forms of
gender-based violence and prevention and response efforts at the coun-
try and local level. This work will include the development of a research
agenda that assesses agencies’ research and data collection capabili-
ties, needs, and gaps; builds upon existing data and research; and is
coordinated with the work of other organizations that are prioritizing
global gender-based violence research. Member agencies shall priori-
tize the monitoring and evaluation of gender-based violence prevention
and response interventions to determine their effectiveness. Member
agencies shall systematically identify and share best practices, lessons
learned, and research within and across agencies. Member agencies, as
appropriate, shall seek to develop public-private partnerships to support
U.S. Government research initiatives and strategic planning efforts.
Lawmaking as a Form of Social Control 187

(d) Enhancing or Expanding U.S. Government Programming that

Addresses Gender-based Violence. Consistent with the availability of
appropriations, the U.S. Government shall support programming that
provides a comprehensive and multi-sector approach to preventing
and responding to gender-based violence; shall consider replicating
or expanding successful programs; and shall assess the feasibility of
a focused, coordinated, comprehensive, and multi-sector approach to
gender-based violence in one or more countries.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or
the head thereof; or
(ii) the functions of the Director of the Office of Management and
Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
(c) Independent agencies are strongly encouraged to comply with this
order.
(d) This order is not intended to, and does not, create any right or ben-
efit, substantive or procedural, enforceable at law or in equity by any
party against the United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.24

BARACK OBAMA

Judicial Lawmaking

Most scholars and jurists recognize that courts perform legislative functions.
In general, courts make law by exercising the power of judicial review when
contemplating the constitutionality of legislative and executive actions by
government. The courts are regularly consulted to decide disputes that arise
under the seemingly countless number of new laws and governmental rules
that are passed to govern society.
In addition to the Constitution, many federal statutes provide specific
standards for judicial review of agency actions under the statute. When
a statute provides for review, no other method may be used to establish a
court’s authority to hear the case, with the exception of cases in which a con-
stitutional issue is raised. Generally, statutes prescribe that legal challenges
must be filed in a timely fashion (e.g., 30-, 60-, and 90-day limits) as well
as where an action is to be filed. The reviewing court decides all relevant
188 Law and Society: An Introduction

questions of law, interprets statutory provisions, and determines the applica-

bility of the agency action. The court has the authority to nullify any agency
action, findings, or conclusions the court finds to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law; in excess of
statutory jurisdiction, authority, or limitations; or adopted without proce-
dures required by law.

The Use of Writs

Another way that judiciary makes law is through the review by writs. A writ
is an official court document, signed by a judge or bearing an official court
seal, which commands the person to whom it is addressed, to do something
specific. That person is typically either a law enforcement official (e.g., a sher-
iff who has been instructed to seize property) or a defendant (e.g., a person
who is being required to answer charges specified in a legal action). The U.S.
Code provides the courts authority to issue various writs to agencies and
agency officials. For example, Title 28, section 2241 (d), of the code estab-
lished the power to grant a writ of habeas corpus in the following citation:

Where an application for a writ of habeas corpus is made by a person in cus-

tody under the judgment and sentence of a state court of a state which con-
tains two or more federal judicial districts, the application may be filed in
the district court for the district wherein such person is in custody or in the
district court for the district within which the state court was held which con-
victed and sentenced him and each of such district courts shall have concur-
rent jurisdiction to entertain the application. The district court for the district
wherein such an application is filed in the exercise of its discretion and in
furtherance of justice may transfer the application to the other district court
for hearing and determination.

Another good example of judicial review is the writ of certiorari.

Certiorari is a Latin word meaning “to be better informed, or to be made cer-
tain in regard to.” It is also the name given to certain appellate proceedings
for reexamination of actions of a trial court or inferior appeals court. The
U.S. Supreme Court uses the term certiorari in the context of appeals. The
U.S. Code under Title 28, section 1254, permits cases in the courts of appeals
to be reviewed by the Supreme Court by the following methods:

By writ of certiorari granted upon the petition of any party to any civil or
criminal case, before or after rendition of judgment or decree;
By certification at any time by a court of appeals of any question of law in
any civil or criminal case as to which instructions are desired, and upon such
certification the Supreme Court may give binding instructions or require the
entire record to be sent up for decision of the entire matter in controversy.
Lawmaking as a Form of Social Control 189

In general, the process begins when someone with a legal claim files a lawsuit
in a trial court, such as a U.S. district court, which receives evidence and decides
the facts and law. If one of the parties is dissatisfied with a legal decision of the trial
court, they can appeal. In the federal system, this appeal usually would be to the
U.S. court of appeals, which is required to consider and rule on all properly pre-
sented appeals. Since the highest federal court in the United States is the Supreme
Court, the party who is dissatisfied with the ruling of the court of appeals can
request the Supreme Court to review the decision of the court of appeals. This
request is named a “petition for writ of certiorari.” The Supreme Court can refuse
to take the case. Review on writ of certiorari is not a matter of right, but a judicial
discretion. A petition for writ of certiorari is granted only for compelling reasons.
In fact, the Court receives thousands of “cert petitions” per year, but more than
90% are denied, and normally without explanation for the denial, other than the
terse order, “Petition for writ of certiorari denied.” If the court does accept the
case, it grants a writ of certiorari.

Lawmaking by Precedents
One of the ways that our judicial system maintains constitutional continuity
is through precedents. Judicial precedents derive their force from the doctrine
of stare decisis, which is Latin for “to stand by that which is decided” (i.e., that
the previous decisions of the highest court in the jurisdiction are binding on
all other courts in the jurisdiction). Black’s Law Dictionary defines the doc-
trine of stare decisis as

a deliberate or solemn decision of [a] court made after argument on [a] ques-
tion of law fairly arising in the case, and necessary to its determination, is an
authority, or binding precedent in the same court, or in other courts of equal or
lower rank in subsequent cases where the very point is again in controversy.25

The obvious purpose of the doctrine is to promote stability and permanence

in the law26 and to ensure predictability for those governed by it.27
There are actually two types of stare decisis. The best known requires that
once a court makes a decision on an issue, lower courts become obligated to
follow that precedent. Legal scholars writing in this area call this vertical stare
decisis.28 Less commonly noted is stare decisis that applies to courts of equal
rank, including the deciding court itself. This is referred to as horizontal stare
decisis. While vertical stare decisis is virtually absolute, there is currently no
such unbending rule obligating courts to adhere to their own prior precedents.29
The doctrine of stare decisis is not always to be relied upon, for the
courts find it necessary to overrule cases that may have been hastily decided
or contrary to principle. However, the task of pursuing an overruling of a
precedent decision is an onerous one. The difficulty of doing this is roughly
190 Law and Society: An Introduction

proportional to a number of factors, including the age of the precedent, the

nature and extent of public and private reliance on it, and its consistency or
inconsistency with other related rules of law.

PROFILES OF THE U.S. SUPREME COURT JUSTICES

John Roberts Jr., chief justice
John Roberts Jr. was born in Buffalo, New York, on January 27, 1955.
Roberts’s educational training includes an A.B. from Harvard College
in 1976 and a J.D. from Harvard Law School in 1979. His judicial
appointments include the appointment to the U.S. Court of Appeals
for the District of Columbia Circuit in 2003. President George W. Bush
nominated him as chief justice of the United States, and he took his seat
September 29, 2005.

Antonin Scalia
Antonin Scalia was born in 1936 in Trenton, New Jersey. He studied
at Georgetown University, University of Fribourg (Switzerland), and
Harvard Law School. After graduation, he was a Sheldon fellow at
Harvard before entering private practice in Cleveland, Ohio. In 1967,
he became a professor at the University of Virginia. From 1971 to 1977,
Scalia served in various government offices as general counsel, Office
of Telecommunications Policy; chairman, Administrative Conference
of the United States; and Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice. He later taught at Georgetown,
Chicago, and Stanford before being appointed by President Reagan to
the U.S. Court of Appeals for the District of Columbia Circuit in 1982.
In 1986, Scalia was appointed as a Justice of the U.S. Supreme Court.

Anthony M. Kennedy
Anthony M. Kennedy was born in 1936 in Sacramento, California. His
educational training includes Stanford A.B. ’58 and Harvard J.D. ’61. He
was a practicing attorney in Sacramento for 12 years and also served as
an adjunct professor at the McGeorge School of Law, University of the
Pacific, from 1965 to 1988. Kennedy was appointed to the U.S. Court of
Appeals for the Ninth Circuit in 1975. President Ronald Reagan nomi-
nated Kennedy to the Supreme Court of the United States on November
30, 1987. The Senate confirmed the appointment on February 3, 1988.

Clarence Thomas
Clarence Thomas was born in 1948 in Pin Point, Georgia. Thomas
was educated at Holy Cross College (B.A. 1971) and Yale (J.D. 1974).
Lawmaking as a Form of Social Control 191

Thomas was admitted to the Missouri bar in 1974 and became an assis-
tant attorney general of the state of Missouri the same year. He was an
attorney for the Monsanto Company from 1977 to 1979. Thomas was
appointed assistant secretary for civil rights in the U.S. Department
of Education. In 1982, he was named chairman of the U.S. Equal
Employment Opportunity Commission and served in that capacity
until 1990. President George H.W. Bush appointed Thomas to the U.S.
Court of Appeals for the District of Columbia Circuit in 1990. On July
1, 1991, President Bush nominated Thomas to the Supreme Court of the
United States. The Senate confirmed the appointment on October 15,
1991.

Ruth Bader Ginsburg

Ruth Bader Ginsburg was born in Brooklyn, New York, in 1933. She
received her undergraduate degree from Cornell University, gradu-
ating Phi Beta Kappa in 1954. Ginsburg graduated from Columbia
Law School in 1959. Ginsburg joined the faculty at Rutgers School of
Law, where she remained for 9 years. In 1972, she was named head of
the ACLU’s Women’s Rights Project. In that same year, Ginsburg left
Rutgers to teach at Columbia Law School. Ginsburg was appointed to
the U.S. Court of Appeals for the District of Columbia by President
Jimmy Carter in 1980. She held this position until 1993, when she was
nominated by President Clinton to serve on the Supreme Court. Her
appointment was confirmed by the Senate, and she took the oath of
office on August 10, 1993.

Stephen Breyer
Stephen G. Breyer was born in San Francisco in 1938. Breyer studied
at Stanford, where he graduated in 1959 and then attended Oxford
University, graduating in 1961. In 1964, he graduated from Harvard
Law School. Breyer clerked for Supreme Court Justice Goldberg in
1964–1965. Two years later he began teaching at Harvard Law. He
also taught in Australia and Rome. Breyer has served in several gov-
ernment positions, including: antitrust assistant for the Department
of Justice, assistant special prosecutor on the Watergate Special
Prosecution Force in 1973, and as both special and chief counsel to
the U.S. Senate Judiciary Committee. In 1980, President Carter nom-
inated him to the U.S. Court of Appeals for the First Circuit, where
he served as chief judge from 1990 until 1994. In October of l994,
Justice Stephen Breyer was appointed to serve on the U.S. Supreme
Court.
192 Law and Society: An Introduction

Samuel Anthony Alito Jr.

Samuel Alito Jr. was born in Trenton, New Jersey, on April 1, 1950.
He graduated from Princeton University’s Woodrow Wilson School
of Public and International Affairs with a BA in 1972 before attend-
ing Yale Law School, where he served as editor of the Yale Law Journal
and earned a JD in 1975. Alito was commissioned as a second lieuten-
ant in the U.S. Army Signal Corps after his graduation from Princeton
and assigned to the U.S. Army Reserve. Following his graduation from
Yale Law School in 1975, he served on active duty from September to
December 1975 while attending the Officer Basic Course for Signal
Corps officers at Fort Gordon, Georgia. The remainder of his time in
the army was served in the inactive reserves. He had the rank of captain
when he received an honorable discharge in 1980. He was appointed
to the U.S. Court of Appeals for the Third Circuit in 1990. President
George W. Bush nominated him as an associate justice of the Supreme
Court, and he took his seat January 31, 2006.

Sonia Sotomayor
Sonia Sotomayor was born in the Bronx, New York, on June 25, 1954.
Her education includes earning the B.A. in 1976 from Princeton
University, graduating summa cum laude, and receiving the univer-
sity’s highest academic honor. In 1979, she earned a J.D. from Yale Law
School. President George H.W. Bush nominated her to the U.S. District
Court, Southern District of New York, and she served in that role from
1992 to 1998. She served as a judge on the U.S. Court of Appeals for the
Second Circuit from 1998 to 2009. President Barack Obama nominated
her as an associate justice of the Supreme Court on May 26, 2009, and
she assumed this role August 8, 2009.

Elena Kagan
Elena Kagan was born in New York, New York, on April 28, 1960. She
received an A.B. from Princeton in 1981, an M. Phil. from Oxford in
1983, and a J.D. from Harvard Law School in 1986. After an appoint-
ment as a law professor at the University of Chicago Law School and
later at Harvard Law School, she served as the dean of Harvard Law
School. In 2009, President Obama nominated her as the solicitor gen-
eral of the United States. After serving in that role for a year, the presi-
dent nominated her as an associate justice of the Supreme Court on
May 10, 2010.
Lawmaking as a Form of Social Control 193

Interest Groups

While there are several ways in which lawmaking may be influenced by interest
groups, perhaps the two most influential are (a) influencing the activities of law-
makers by means of lobbying and (b) financing political campaigns. Both meth-
ods are used to influence courts, legislative bodies, and executive administrations.
Webster’s Dictionary defines the word lobby as:

to conduct activities aimed at influencing public officials and especially mem-

bers of a legislative body on legislation; to promote or secure the passage of
legislation by influencing public officials; to attempt to influence or sway a
public official toward a desired action.30

Interest groups typically hire a lobbyist to discuss a legislative agenda with

a legislator. The primary goal, then, of a lobbyist is to get legislators to intro-
duce or vote for measures favorable to special interests that he or she rep-
resents. The fundamental ideology behind lobbying is to provide members
of Congress, state houses, and local commissions with the information they
need to fully understand the consequences of their legislative decisions to
constituents. The right to lobby is protected by the First Amendment of the
U.S. Constitution.
To get a sense of lobbying efforts in our nation’s capital, we examine
excerpts from a report provided by the Center for Responsive Politics, a non-
partisan, nonprofit research group based in Washington, DC. The center
reports that in 1998, there were 10,408 registered lobbyists, and total expen-
ditures of the industry were at $1.44 billion. By 2012 the number of lobbyists
grew to 12,374, and the total industry expenditures grew to $3.28 billion.31
Successful lobbying is often backed up by political clout, which either
takes the form of campaign contributions or political pressure from grass-
roots constituencies. The American Association of Retired Persons (AARP),
for example, exerts enormous influence on Capitol Hill through the power of
an active membership, even though the organization has no political action
committee and its employees make few campaign contributions. Labor
unions tend to rely on political action committee and soft money contribu-
tions, plus their large memberships, to flex muscle with Congress.
The lobbying industry continues to offer lucrative career opportunities
to retiring or defeated members of Congress, as well as prominent congres-
sional staffers and leading executive branch officials. Former lawmakers are
especially valuable as lobbyists because they know the process intimately,
understand the ins and outs of complex issues they dealt with while serving
in Congress, and have personal ties to their former colleagues. In a business
where success often depends on having access to decision makers, former
members of Congress are more likely to get their telephone calls returned.
194 Law and Society: An Introduction

Big-name lobbyists can also attract new clients to a firm. Ethics rules that
ban former members from lobbying Congress for a year are not difficult
to work around. Many former members provide strategic advice to clients,
lobby other government agencies, or rely on colleagues in their firms who are
not bound by the same restrictions.
Many lawmakers depend on lobbyists as valuable sources of information
about complex issues and ideas for legislation. It is not unheard of for lobby-
ists to draft suggested amendments or bills that sympathetic lawmakers intro-
duce as their own. At the very least, lobbyists are regularly asked for feedback
on recommended legislation, sometimes simply to make sure before legisla-
tion goes to a vote that the affected parties will not raise any objections.32
In the judicial lawmaking process, judges are of course not lobbied in
the same fashion as legislators. However, attorneys are in effect lobbyists who
have been hired to represent the interest of a party. While the forum and
professions involved may be different, the fundamental principle is similar
in that the ultimate goal is to influence the decision maker, whether it is a
legislator or a judge. The principal method of bringing a party’s interest to
the attention of the court is though amicus curiae briefs. Amicus curiae is a
Latin phrase meaning “friend of the court.” This legal tenet holds that a party
is allowed to provide information (in the form of a legal brief) to a court even
though the party is not directly involved in the case at hand.
For example, the National Association of Counsel for Children (NACC)
participates in cases of particular importance to the welfare of children by
filing amicus curiae briefs. In recent years, the NACC has filed briefs in state
appellate and supreme courts and in the U.S. Supreme Court. Likewise, the
American Civil Liberties Union has been engaged in defense of the Bill of
Rights for over 75 years. Many of its efforts have focused on enforcing those
portions of the Bill of Rights having to do with administration of the crimi-
nal justice system. For example, the ACLU participated as amicus curiae in
Miranda v. Arizona, 384 U.S. 436 (1966), a U.S. Supreme Court case relegating
that a person’s right not to be compelled to incriminate himself is essential
to the preservation of our accusatorial system of criminal justice. As in 1966,
custodial interrogation today remains aimed at inducing a person to confess,
and if the Fifth Amendment privilege is to be meaningful, some warning is
necessary to ensure that persons subjected to custodial interrogation have in
mind their constitutional privilege against self-incrimination.
In general, the effectiveness of interest groups in influencing lawmakers
is related to its abilities to finance lobbying efforts. Likewise, when attempt-
ing to influence the judicial lawmaking process, it is a reality that interest
groups must possess the ability to hire appropriate legal counsel to support
court suits. But where money is concerned, perhaps the most publicly criti-
cized spending is that of campaign contributions made to those who are run-
ning for office or the bench.
Lawmaking as a Form of Social Control 195

According to Title II of the U.S. Code, the term contribution includes:

any gift, subscription, loan, advance, or deposit of money or anything of value

made by any person for the purpose of influencing any election for Federal
office; or the payment by any person of compensation for the personal services
of another person which are rendered to a political committee without charge
for any purpose.33

The Federal Election Commission (FEC) is the independent regulatory

government agency appointed with directing and applying the federal cam-
paign finance law. The FEC has jurisdiction over the financing of campaigns
for the U.S. Senate, the U.S. House, the presidency, and the vice presidency.
Federal campaign finance law covers three broad subjects: public dis-
closure of funds raised and spent to influence federal elections, the public
financing of presidential campaigns, and the restrictions on contributions
and expenditures made to influence federal elections.

Source of Funds
There are basically three recognized ways that interest groups provide fund-
ing to support campaign efforts of elected officials. They include:

• PACs: Contributions from political action committees

• Individuals: All contributions from individual citizens
• Candidate: Contributions and loans from the candidate to his/her
own campaign
• Other: All other revenues collected by the campaign, such as interest
from the campaign’s bank accounts and loans from outside sources

Political action committee (PAC) is a popular term for a political com-

mittee established for the purpose of raising and spending money to elect
and defeat candidates. Most PACs represent business, labor, or ideologi-
cal interests. PACs can give $5,000 to a candidate committee per election
(primary, general, or special). They can also give up to $15,000 annu-
ally to any national party committee, and $5,000 annually to any other
PAC. PACs may receive up to $5,000 from any one individual, PAC, or
party committee per calendar year. A PAC must register with the Federal
Election Commission (FEC) within 10 days of its formation, providing
name and address for the PAC, its treasurer, and any connected organiza-
tions. Affiliated PACs are treated as one donor for the purpose of contribu-
tion limits.
PACs have been around since 1944, when the Congress of Industrial
Organizations (CIO) formed the first one to raise money for the reelection
196 Law and Society: An Introduction

of President Franklin D. Roosevelt. The PAC’s money came from voluntary

contributions from union members rather than union treasuries, so it did
not violate the Smith Connally Act of 1943, which forbade unions from con-
tributing to federal candidates. Although commonly called PACs, federal
election law refers to these accounts as “separate segregated funds” because
money contributed to a PAC is kept in a bank account separate from the gen-
eral corporate or union treasury.
PAC contributions and large donations from individuals are the two
biggest sources of contributions for most members of Congress. In the 1996
elections, for example, winning U.S. House candidates collected about 39%
of their money from PACs, 36% from individual contributions of more than
$200, and 19% from small individual contributions. Senators get about 25%
of their money from PACs, with large individual contributions accounting
for the biggest share of their campaign cash. In 2012, labor PACs alone dis-
persed $280,429,813 to candidates.34

Questions in Review
1. Describe the four role orientations that account for the variety of
behavior that a lawmaker may exhibit while performing the duties of
legislative office.
2. What are the arguments for and against term limits? What is your
personal opinion about term limits? Should there be a federal man-
date, or not?
3. What is the main difference between formal and informal
rulemaking?
4. What function does the Office of the Federal Register serve?
5. Explain the legal doctrine of stare decisis.
6. Should the lobbying industry be allowed to offer well-paying
employment positions to members of Congress and executive branch
officials?
7. What is the usefulness of an amicus curiae brief?
8. What is a PAC?
9. In what ways do PAC contributions allow the campaign finance laws
to be circumvented?
10. Do you think that there are too many laws in the United States?
Provide some reasoning for your response.

Endnotes
1. W. Chambliss & R. Seidman. (1971). Law, order and power (p. 503). Reading,
MA: Addison-Wesley.
Lawmaking as a Form of Social Control 197

2. B. Sinclair. (1990). Congressional leadership: A review essay and a research

agenda. In J.J. Kornacki (Ed.), Leading Congress. Washington, DC: Congressional
Quarterly Press.
3. Excerpt from John Stuart Mill. (1861). Representative government, Chap. 3.
4. Adapted from C.R. Wise. (1991). The dynamics of legislation: Leadership and
policy change in the congressional process. San Francisco, CA: Jossey-Bass.
5. J.C. Wahylke, H. Eulau, W. Buchanan, & L.C. Ferguson. (1962). The legislative
system: Explorations in legislative behavior. New York, NY: John Wiley and Sons.
6. J.C. Wahylke, H. Eulau, W. Buchanan, & L.C. Ferguson. (1962). The legislative
system: Explorations in legislative behavior (p. 247). New York, NY: John Wiley
and Sons.
7. J.C. Wahylke, H. Eulau, W. Buchanan, & L.C. Ferguson. (1962). The legislative
system: Explorations in legislative behavior (p. 247). New York, NY: John Wiley
and Sons.
8. J.C. Wahylke, H. Eulau, W. Buchanan, & L.C. Ferguson, (1962). The legislative
system: Explorations in legislative behavior (p. 248). New York, NY: John Wiley
and Sons.
9. J.C. Wahylke, H. Eulau, W. Buchanan, & L.C. Ferguson. (1962). The legislative
system: Explorations in legislative behavior (p. 248). New York, NY: John Wiley
and Sons.
10. Americans want term limits, end to electoral college. (2013). Gallup poll. Retrieved
June 30, 2013, from http://www.gallup.com/video/160073/americans-term-
limits-end-electoral-college.aspx?ref=more
11. Watkins v. United States, 354 U.S. 178 (1957), pp. 187–216.
12. Barenblatt v. United States, 360 U.S. 109 (1959), pp. 116–129.
13. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 5372, 7521.
14. Section 551 (4) of the Administrative Procedures Act.
15. Prentis v. Atlantic Coastline Co., 221 U.S. 210, 226 (1908).
16. 5 U.S.C. § 554(a).
17. A.T. Sharon & C.B. Pettibone. (1987). Merit selection of federal administrative
law judges. Judicature, 70(4), 216.
18. W. Robie & M. Morse. (1986). The federal executive branch adjudicator: Alive
(and) well outside the Administrative Procedure Act? Fed. Bar News and J. 33,
133.
19. 5 U.S.C. § 557(b).
20. See, e.g., Brock v. L.E. Meyers Co., High Voltage Div. 818 F.2d 1270, 1277 (6th Cir.
1987).
21. Agency review of administrative law judges’ decisions, 66 B.U.L. REV. 1 (1986);
ACUS Recommendation 83-3, Agency structure for review of decisions of pre-
siding officers under the Administrative Procedure Act, 1 C.F.R. § 305.83-3
(1988).
22. 44 U.S.C. Sec. 1505.
23. Presidential proclamation—Veterans Day, 2012. The White House, Office of the
Press Secretary. Retrieved June 30, 2013, from http://www.whitehouse.gov/
the-press-office/2012/11/07/presidential-proclamation-veterans-day-2012
198 Law and Society: An Introduction

24. Executive order—Preventing and responding to violence against women and

girls globally. The White House, Office of the Press Secretary. Retrieved June
30, 2013, from http://www.whitehouse.gov/the-press-office/2012/08/10/
executive-order-preventing-and-responding-violence-against-women-and-gir
25. Black’s Law Dictionary (6th ed.). (1990). (p. 1406).
26. State v. Ray, 130 Wn.2d 673, 677, 926 P.2d 904, 905 (1996).
27. Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588, 593 (1997).
28. W. Smith. (1987). Theories of adjudication and the status of stare decisis. In
L. Goldstein (Ed.), Precedent in law (pp. 81–82). Oxford, England: Clarendon
Press.
29. L.C. Marshall. (1989). Let Congress do it: The case for an absolute rule of statu-
tory stare decisis. Mich. L. Rev., 88, 177.
30. Webster’s 10th New Collegiate Dictionary. (1998). Lobby. Springfield, MA:
Merriam–Webster.
31. Center for Responsive Politics. (2013). Based on data from the Senate Office
of Public Records. Retrieved June 30, 2013, from http://www.opensecrets.org/
lobby/index.php
32. A. Shuldiner. (1999). The bottom line on Washington lobbyists. Washington, DC:
Center for Responsive Politics.
33. Title II, Section 440, of the U.S. Code.
34. Figures taken from the Federal Election Commission.
Dispute Resolution
7
Chapter Objectives

After reading this chapter you should be able to

• Identify the differences between negotiation, arbitration, and mediation

• Explain the steps in dispute resolution
• Discuss the role of arbitration
• Distinguish between various types of alternative dispute resolution
(ADR) programs
• Discuss the role of the courts in dispute settlement
• Explain the four general approaches to conflict resolution education
for youths

Introduction

Consider the following fact situation: You attend class each class day. You
take an active part in class discussions and make As on all your exams, but
your final grade for the course is a C. You approach the professor regard-
ing your grade. He states that he does not have time for students who are
unhappy with their grades. You tell the professor that you should have got-
ten an A in the course. He disagrees. A dispute occurs. How is the dispute
resolved at your university? What are your options in settling this dispute?
Generally, universities have policies that allow students to complain offi-
cially about their grades and to seek redress, i.e., to settle grade disputes. As a
general rule, those policies provide several steps that the student should take
to resolve his or her complaint. First, the student is generally obligated to
discuss the dispute with his or her instructor (negotiation stage). If this dis-
cussion does not produce a resolution, the student may present the case to the
departmental chair. The chair listens to the student’s side and then discusses
the dispute with the instructor (mediation stage). If the dispute is not resolved
at this point, the student can go to the third stage of the resolution process.
At most universities, the departments or schools have standing committees
composed of both professors and students to hear students’ academic griev-
ances (arbitration stage). If the dispute is not settled at that level, students

199
200 Law and Society: An Introduction

generally have the right to further appeal the decision to a university-wide

committee on academic complaints. It is rare for academic complaints to go
beyond this stage. There are a few reported cases, however, where students
have resorted to court litigation. In early 2013, a former Lehigh University
graduate student’s claim of breach of contract and sexual discrimination on
the part of the university was rejected by a Pennsylvania judge. The plaintiff
was seeking damages in the amount of $1.3 million for lost potential earn-
ings due to a grade that she was issued in a class. That grade essentially made
her ineligible to continue in that program.1
In this chapter, we examine dispute resolution and its relationship to
the law. Dispute resolution is also known as conflict resolution, dispute
management, conflict regulation, and dispute processing. For our purposes,
we will consider that these terms are interchangeable. That conflicts will
arise among members of a complex society is a given fact. Dispute resolu-
tion takes many forms. It may result in court-imposed settlements, agreed
settlements, informal bargaining, or as the result of alternative dispute reso-
lution (ADR).
Michael Palmer and Simon Roberts contend that disputes are not
really settled; they are merely processed or regulated rather than resolved.2
According to them, third-party intervention through legal or nonlegal means
represents the settlement of only the public component of the dispute or con-
flict and does not alleviate the underlying forces or tensions that created the
conflict. Richard Abel contends that the outcome of most conflict resolution
is at most only a temporary peace between the parties to the conflict and that
the ultimate outcome is more conflicts and disputes.3 In our grade-dispute
scenario discussed at the beginning of this chapter, regardless of the final
results, there will probably be feelings of resentment by each of the parties
against the other party.
Laura Nader and Harry Todd contend that there are three distinct phases
or stages in the disputing process: preconflict or grievance stage, conflict
stage, and dispute stage.4 The preconflict or grievance stage originates when
an individual or a group perceives that an unjust situation has developed and
considers that there are grounds for resentment or complaint. These grounds
may be real or imaginary. The first stage is monadic, since it involves only
the one person or party who perceives the injustice. If not resolved at the
preconflict stage, the process develops into the conflict stage. At the conflict
stage, the aggrieved party communicates his or her resentment or feelings
of injustice to the offending party or parties. The conflict stage is dyadic in
that it involves the two parties: the offended and the offending parties. If the
conflict is not settled at this stage, it progresses to the third stage. At the third
stage, the dispute stage, the process is triadic because a third party becomes
involved. The third party acts as the settlement agent. Not all three stages are
present in every dispute. For example, an aggrieved party may file a lawsuit
Dispute Resolution 201

without confronting the offending party, thereby omitting the second stage.
Likewise, at any point in the process, the aggrieved party may discontinue
the process or the other party may concede.

Hidden Harmony Myth

According to David Stiebel, when examining dispute resolution, there is the
“hidden harmony myth.” This myth is based on the common belief that the
key to resolving disputes is communications, i.e., “Why don’t we talk it out?”
or “As long as we are talking, there’s hope.” Stiebel contends that many of
us rely on the myth and accept the assumption that we just need to under-
stand each other better. This line of thought assumes that there are no con-
flicts, only poor understandings. Unfortunately, in real life, most disputes
are based on conflicts of interests, e.g., who owns the property in question or
should the employee be fired.5

Dispute Categories
Disputes may generally be divided into three important categories: private
disputes, public-initiated disputes, and public-defendant disputes. This clas-
sification does not include disputes between nations or states. A private dis-
pute in one in which there is an absence of any initial participation by public
authorities or public intuitions. Two people arguing over the ownership of
an animal is an example of a private dispute. Generally, private disputes are
processed and managed without the intervention of the government. A pub-
lic-initiated dispute is one that occurs when the government seeks to enforce
either a conduct norm or attempts to punish someone for violating the norm.
The public-defendant dispute is one where the government participates as a
defendant in the dispute. For example, an individual challenges the author-
ity of the government. Suppose a citizen purchases land with plans to build
his or her home on the property. The government denies the permit to build
residential property because the land is zoned for commercial use only. The
citizen brings court action to require the government to issue the building
permit. This is an example of the public-defendant conflict.

Dispute Resolution Methods

As noted previously, disputes are common in all societies. They are also
common at all levels, subcultures, etc., within the society. Dispute resolu-
tion methods are fairly similar in most societies. The preferred method in
each society depends to a large extent on cultural factors and the availability
of dispute resolution processes. The two general forms of resolution are (a)
202 Law and Society: An Introduction

by negotiations between the conflicting parties without the intervention of

a third party and (b) the adjudicated settlement in which a neutral party
decides which of the two parties has the superior claim. In some societies and
in some subcultures, direct interpersonal violence is an approved method of
resolution. For example, at one time, duels conducted according to specific
rules and under a controlled environment were considered as an approved
method of resolving certain disputes. Family feuds, such as the feud between
the Hatfields of Virginia and the McCoys of Kentucky which started in 1882
and lasted for years, were once used to resolve conflicts between families.
Ridicule and shaming is used in nearly all cultures as a method of point-
ing out an individual’s wrongdoings and to reduce conflict caused by the
wrongdoings. In some situations, one or more parties may resort to super-
natural agencies. For example, one aggrieved party prays to God for God’s
intervention to help the other party see the wrongs in his or her actions.
In the colonial towns in New England, the colonists focused on set-
tling disputes through mediation. The colonists had a disdain for the use
of legal resolution because this made the disputes public, made people into
adversaries, and weakened the community solidarity. The colonists were
deeply religious and were bound together in their congregational commu-
nities. Their pattern of settling disputes, like other aspects of their lives,
was based on their shared commitment to God’s word and religious com-
munity over individual interests and values. Often, an entire congrega-
tion participated in the settlement process. According to Turkel, the pull
toward nonlegal dispute settlement was so strong that the colonists used
mediation to enforce harmony. When this failed, people who refused to
settle their disputes in a spirit of harmony were often forced to leave the
community.6 Turkel uses the example of a dispute that occurred in 1640
in Boston to illustrate his point. In his example, a Mrs. Hibbins had hired
a carpenter to do some work on her house. When a dispute arose between
her and the carpenter, she proposed that each of them would select a car-
penter and that the two selected carpenters would arbitrate the dispute.
Mrs. Hibbins then refused to accept the fee set by the two arbitrators.
The dispute then went to the First Church of Boston. At the forum of the
church, the dispute shifted from the problem of the sum of money due
the original carpenter to Mrs. Hibbins’s lack of support for community
solidarity. The congregation voted to excommunicate her, with the pas-
tor’s words:

I do here, in the name of the whole church and in the name of the Lord Jesus
Christ … pronounce you to be a leprous and unclean person, and I do cast you
out and cut you off from the enjoyment of those blessed privileges and ordi-
nance which God hath entrusted his Church withal, which you have abused.
Dispute Resolution 203

Hierarchy of Types
The process generally moves the dispute resolution through a type of resolu-
tion characterized by substantive informal legitimacy to a type characterized
by formal legal rationality. The informal and nonlegally rational resolution
forms are negotiation and mediation. The formal and legally rational forms
are arbitration and litigation.
Negotiation is generally the first step in any dispute resolution. It is con-
ducted by the involved parties or their attorneys. The aim of negotiation is to
reach an agreement among the parties without any recommendation or deci-
sion by a third party and without adjudication. A negotiated settlement is
often predicated on the different resources and power among the parties. For
example, you have a dispute with a major corporation. The corporation offers
to settle the dispute for less than you feel is just. You may take the settlement
not because it is fair, but because you do not have the resources to press the
dispute to litigation.
Mediation is like negotiation in that it does not rely on legal rational-
ity to resolve disputes. Mediation attempts to secure an agreement among
the conflicting parties. The mediator does not have the power to make and
impose decisions on either party. In arbitration, both parties argue their
case before a third party. The third party has the power to make a decision.
There are two different types of arbitration: one where the parties volun-
tarily agree to arbitrate future disputes before an arbitration, and the other
where the parties agree after a dispute arises to submit to arbitration. In
addition, arbitration may either be binding or nonbinding on the parties.
When the arbitration is nonbinding, either party may refuse to accept the
decision and pursue other dispute resolution methods. Mediation and arbi-
tration are discussed later in this chapter. In examining the types of dispute
resolution processes available, it is important to remember that these are
analytic distinctions to allow us to see the differences among them. In actual
practice, however, the types often blend together, and hybrid processes are
the result.

Litigation as a Means of Resolving Disputes

Karl Llewellyn once stated:

What … is this law business about? It is about the fact that our society is hon-
eycombed with disputes. Disputes actual and potential, disputes to be settled
and disputes to be prevented; both appealing to the law, both making up the
business of law.7
204 Law and Society: An Introduction

At this point, it should be noted that litigation may only resolve those dis-
putes that have been translated into a legal dispute. To be a legal dispute, the
conflict must involve legal rights or property. For example, your next-door
neighbor does not like you and has a long-standing grudge against you. His
failure to talk to you or to be friendly may be a conflict, but it is not a legal dis-
pute. While the criminal justice system is the most familiar example of law as a
means of social control, civil law is generally considered as the vehicle to resolve
disputes or conflicts. We are supposed to be a litigious society, i.e., we take our
disputes to the courts for resolution. The courts, however, play the role of deci-
sion maker in only a small percentage of grievances. According to Lawrence
Friedman, only about a third of 1% of all grievances go the whole route.8 For
Friedman, the “real” law of contracts, or landlord-tenant disputes, or auto acci-
dents is not to be learned simply by studying trials and cases. The real law of
auto accidents is the law of insurance adjustors and lawyers’ negotiations.
The resolution of disputes via the legal system results in the resolution of
a specific dispute, but not in the amelioration of broader issues that produced
the conflict. In addition, a legal resolution generally does not reduce the ten-
sion or antagonism between the parties involved in the dispute.
Many dispute resolution methods are open only to specific groups, e.g.,
employees and employers with arbitration agreements and college students
who have the right to appeal their grades. In theory, the courts are available
to all members of society. If there is a wrong that results in a legally recog-
nized injury or loss of property, there should be legal redress available to the
injured party.
Donald Black looked at the question of who uses the courts to resolve dis-
putes. According to him, a person is least likely to sue a close kinsman, then a
friend, and acquaintance, a neighbor, a fellow townsman, and so on, the like-
lihood increasing with the relational distance until his world ends. He uses
the Arusha tribe of Tanzania as an example. He wrote that disputes between
members of the same family line or village are almost always resolved by
procedures not involving the government. Only the more distant were likely
to go to law.9 In traditional Japan, fellow members of the village avoid court
when the dispute is between members of the same village, but with members
of different villages they are more likely to go to court.

Alternative Dispute Resolution

Abraham Lincoln once offered the following piece of advice to law students:

Discourage litigation. Persuade your neighbors to compromise whenever

you can. Point out that how the nominal winner is often the loser–in fees,
expenses, and waste of time.10
Dispute Resolution 205

The late Chief Justice Warren Burger once stated: “Our litigation system
is too costly, too painful, too inefficient for a truly civilized people.”
In recent years, the field of alternative dispute resolution (ADR) has
become a growth industry. Now, disputes that in previous years were des-
tined for jury trials or direct settlement negotiations on the day of trial are
being resolved through alternative dispute procedures such as mediation,
moderated settlement conference, or arbitration. The movement toward
ADR is caused by the overcrowded court dockets with long delays in hearing
civil cases; very high expenditures in the form of attorney’s fees, court costs,
and discovery; no assurance of winning in the end or recouping the costs;
further estranged relations with the opposing party with whom an ongoing
relationship may continue to exist, such as a former spouse; and most impor-
tant, to avoid the stress, trauma, and sagging spirits of litigation.11
Often the settlement will be the result of two or more of those settlement
methods. For example, even those disputes settled by agreement of the par-
ties involved do not occur in a vacuum. As noted by Robert Mnookin and
Lewis Kornhauser:

Divorcing parents do not bargain over the division of family wealth and custo-
dial prerogatives in a vacuum; they bargain in the shadow of the law. The legal
rules governing alimony, child support, marital property, and custody give
each parent certain claims based on what each would get if the case went to
trial. In other words, the outcome that the law will impose if no agreement is
reached gives each parent certain bargaining chips—an endowment of sorts.12

Former Supreme Court Justice Sandra Day O’Connor once stated: “The
courts of this country should not be the places where the resolution of dis-
putes begin. They should be the place where the disputes end—after alter-
native methods of resolving disputes have been considered and tried.”13
Proponents of ADR contend that it relieves the burden on the courts and
provides swift justice. Opponents contend that it favors the wealthy; they still
have access to the courts, whereas the poor are forced into lesser forums.
Another criticism of ADR is that because it is somewhat of an ad hoc system
of justice, the resolution outcome may not follow legal norms.

Court-Annexed Arbitration
Every state has adopted some form of ADR. One current trend in ADR is
court-annexed arbitration. While courts have had the inherent power to
refer cases to arbitration for centuries, it is only recently that it has been used
extensively. In many states, the judges have statutory authority to require
the parties to submit to nonbinding arbitration. In the typical state statute,
the court selects the arbitrator. The arbitrator has the power to conduct a
206 Law and Society: An Introduction

hearing, to administer oaths, and to issue subpoenas. Once the arbitrator

has issued an opinion, it is final and binding on all parties unless one of the
parties files a motion within 30 days for a trial.

Mediation
Mediation is defined as an attempt to bring about a peaceful settlement or
compromise between the disputants through the objective intervention of a
neutral party.14 Mediation involves the use of a neutral third party in a facili-
tated settlement negotiation. The mediator focuses on the mutual interests of
the parties in avoiding a lengthy and costly trial and the risks associated with
trials. By definition, this does not obligate the mediator to take a position on
the merits of either party’s case. During the mediation process, the media-
tor acts as though each party has a legitimate position, without excessively
focusing on the arguments concerning legitimacy.
One of the most famous mediations occurred during the Russo-Japanese
War, when President Theodore Roosevelt mediated the dispute between Russia
and Japan. In September 1905, at Portsmouth, New Hampshire, as the direct
result of Roosevelt’s mediation, the Treaty of Portsmouth was signed by Japan
and Russia. The disastrous outcome of the war for Russia is considered as one
of the causes of the Russian Revolution of 1905. The treaty also established
Japan as the first non-European and non-American imperialist nation.15

Arbitration
Arbitration is an informally conducted adversary proceedings in which a dis-
pute of law or fact is determined by a neutral arbitrator or panel of arbitrators
who issue an award. In binding arbitration, the award can be recorded as a
court judgment. Arbitration is generally less time consuming, less expensive,
and more informal than a trial. Arbitration may be either binding or non-
binding. In nonbinding arbitration, neither party is required to accept the
arbitrator’s decision. In binding arbitration—unless the arbitrator violates a
law, regulation, or terms of the arbitration agreement—the parties are bound
by the arbitrator’s decision.
Arbitration was used in the 13th century to settle mercantile disputes in
Europe. In the Tudor period in England, mercantile disputes were resolved
by the privy council, which consisted of merchant arbitrators. In 1697, the
first English arbitration law was established. In 1768, the New York Chamber
of Commerce was founded, with one of its stated purposes being the arbi-
tration of disputes among its members. In many countries, arbitration may
be compelled by the government as a method of settling disputes between
employers and employees. New Zealand has had the statutory authority to
compel arbitration involving such disputes since 1904, Canada since 1907,
Dispute Resolution 207

and Italy since 1926. In the United States, the federal government has had the
authority to intervene in the case of labor strikes affecting the public welfare
under certain provisions of the Taft-Hartley Act of 1947.
At one time, the courts were hostile to the use of arbitration, and any
agreements to arbitrate were narrowly interpreted by the courts. That atti-
tude has significantly changed, and the hostility is now a matter of history. In
the 1991 amendment to the Civil Rights Act of 1964, Congress created new
employee rights and, at the same time, it expressly recognized and encour-
aged the use of arbitration as a method of determining those rights. That
same year, the U.S. Supreme Court decided the Gilmer v. Interstate/Johnson
Lane Corp. case.16
The Gilmer case is credited with beginning the entire practice of using
final and binding arbitration for the resolution of employment disputes that
are not covered by collective bargaining agreements between employers and
unions. The Court held that employers could require employees as a con-
dition of employment to accept compulsory arbitration under the Federal
Arbitration Act. The Court said that its intention was to “reverse the long-
standing judicial hostility to arbitration agreements … and to place arbi-
tration agreements on the same footing as other contracts.” In 1995, a state
court citing the Gilmer case reiterated the policy of state and federal courts
of favoring the use of arbitration. The state court stated that the federal policy
in favor of enforcing arbitration agreements is so compelling that a court
should not deny arbitration “unless it can be said with positive assurance
that an arbitration clause is not susceptible of an interpretation which would
cover the dispute at issue.”17
The basis for most arbitration processes involving federal issues is the
Federal Arbitration Act (FAA) of 1925.18 The federal authority to enact the
FAA is based on the commerce clause of the federal Constitution. The U.S.
Supreme Court in United States v. Darbury Lumber Co.19 held that the com-
merce clause extended even to intrastate activities that “affect” interstate
commerce, and that Congress has the power to make regulations involving
intrastate commerce as a means to regulate interstate commerce. For exam-
ple, the rental of a hotel room in Austin, Texas, to a resident of Texas is an
intrastate matter that affects interstate commerce and thus is subject to the
FAA. This is because it is a part of the “stream of commerce.”
The FAA has been well received by the courts and interpreted expan-
sively by them to support the enforcement of agreements for the arbitration
of disputes. In recent years, the U.S. Supreme Court has delivered a string of
decisions that favor the use of arbitration in both domestic and international
disputes. Every American state has adopted a comprehensive arbitration stat-
ute. Most states have adopted the Uniform Arbitration Act (UAA), which is
a model statute promulgated by the National Conference of Commissioners
on Uniform State Laws. The drafters of the UAA partially tracked the FAA,
208 Law and Society: An Introduction

and most of the provisions are similar. Since the basis for both federal and
state arbitration law is statutory, the provisions of the applicable statute must
always be considered. In addition, since many arbitration statutes are very
general in nature, there remains a common law of arbitration that is based
on relevant case law.
Arbitration is based on contract law. The parties have either agreed to
settle a present dispute by the use of arbitration or agreed to settle future dis-
putes by resort to arbitration rather than judicial proceedings. For example,
the 1925 House of Representative Report on the FAA states:

Arbitration agreements are purely a matter of contract, and the effect of the
bill [FAA] is simply to make the contracting party live up to his agreement.
He can no longer refuse to perform his contract when it becomes disadvan-
tageous. An arbitration agreement is placed upon the same footing as other
contracts. It is particularly appropriate that this action should be taken at
this time when there is so much agitation against the costliness and delays
of litigation.

If there is a direct conflict between the FAA and the state law on arbitra-
tion and the transaction involves or affects interstate commerce, the FAA
preempts the state law, i.e., the issue is decided based on federal law. If the
transaction does not involve or affect interstate commerce, then the state law
applies. For example, in Mamlin v. Texas,20 there was an employment contract
between a New York manufacturer and a Texas sales representative. The con-
tract provided that all disputes under the contract would be settled “under
the law of New York,” and arbitration was required. The salesman brought
suit in a Texas court. The manufacturer sought to compel arbitration of the
dispute. At that time, compulsory arbitration was contrary to Texas public
policy. The court held that the FAA applied to the dispute, since interstate
commerce was involved, and that the FAA permitted the parties to agree
that the law of the specified state would govern the contract. Accordingly, the
salesman was required to submit to arbitration, and the law of New York was
used to settle the dispute.
Arbitration is not without its critics. Lawyers for consumers charge that
the details of such contracts—used in a wide variety of transactions, from
credit cards to video-rental agreements—are often buried in the contract’s
small print and deprive buyers of their right to resolve disputes in court.
Businesses tend to favor binding arbitration agreements because they can
resolve cases quickly and without the uncertainty and expense often involved
in jury trials.21
Dispute Resolution 209

EASTERN ASSOCIATED COAL CO. V. UNITED MINE WORKERS

(decided November 27, 2000)
James Smith was a truck driver for Eastern Associated Coal Company
and a member of the United Mine Workers labor union. Twice he failed
the drug test. Eastern started the process to terminate his employment.
The company contended that it had a duty under U.S. Transportation
Department regulations to fire him. The union objected. The labor con-
tract between the company and the union contained a binding arbi-
tration agreement. The issue was referred to binding arbitration. The
arbitrator held that there was not just cause to fire him. The company
appealed the decision of the arbitrator, contending that as a matter of
public policy it had a duty to fire a truck driver who had twice tested
positive for drug use. U.S. Supreme Court Justice Stephen Breyer, writ-
ing the unanimous opinion, said that the arbitrator’s rejection of the
public duty argument “violates no specific provision of any law or regu-
lation” and upheld the arbitrator’s decision.
Query: If you were counsel for the company, would you advise the com-
pany to continue to allow the driver to drive company trucks? If he was
involved in a fatal accident, would the company be liable for allowing a
known drug user to drive one of its units?

Selecting an Arbitrator
The selection of an arbitrator is a crucial decision because of the almost com-
plete finality of the arbitrator’s decisions in binding arbitration. The arbi-
trator generally decides both questions of law and fact and is not typically
restricted by the traditional rules of evidence. As noted in Mantle v. Upper
Deck Co.:22

The standard of review for arbitration awards has been described as “among
the narrowest known to the law.” The Court may not vacate (reverse) the arbi-
trator’s award based on mere errors in interpretation or application of the law,
or mistakes in fact-finding.

Unless required by the arbitration agreement, the arbitrator is usually

not required to write a detailed opinion or to support any conclusions with
particular facts or law. Accordingly, in most cases, the parties are “stuck”
with the arbitrator’s decision.
Arbitration panels typically involve either one or three arbitrators.
Occasionally there are as many as five. The American Arbitration Association
(AAA) generally recommends that only one arbitrator be appointed except in
210 Law and Society: An Introduction

the larger and more complex cases, where panels of three are recommended.
The National Association for Dispute Resolution (NADR) rules provide for
panels of three arbitrators in all cases.
Often the arbitration agreement will designate a specific arbitrator or
require the parties to adhere to a specific process in arbitration selection.
Some arbitration agreements provide for the selection of arbitrators accord-
ing to the rules of the AAA or NADR. Generally in these cases, when a dis-
pute arises and the arbitration clause is invoked, the association will submit
a list of possible arbitrators. Each party may strike a specified number of
arbitrators off the list. One of the arbitrators remaining is then selected by the
association to hear the dispute.
The general qualifications of an arbitrator include:

• Free of bias for or against any of the parties

• Experience within the field or with the ability to grasp any special-
ized knowledge needed
• Person of integrity and honesty
• Good judgment, analytical ability, and malleability

Conflict Resolution and Delinquency

Will teaching conflict resolution to juveniles reduce delinquency? According

to Donni LeBoeuf and Robin V. Delaney-Shabazz, delinquency and youth vio-
lence are symptoms of a juvenile’s inability to handle conflict constructively.23
They contend that by teaching young people how to manage conflict, i.e., educa-
tion in conflict resolution, we can reduce juvenile violence in juvenile facilities,
schools, and communities. They also believe that such education can combat
chronic truancy. Education in conflict resolution teaches young people the
skills needed to engage in creative problem solving. Individuals learn to iden-
tify their interests, express their views, and seek mutually acceptable solutions.
There are four general approaches to conflict resolution education for
the youths: process curriculum, peer mediation, peaceable classroom, and
peaceable school. Most conflict resolution education programs combine ele-
ments from these approaches. The processes of conflict resolution are taught
as a distinct lesson or course using the process curriculum approach, whereby
young people are taught to practice principled negotiation as a means of
goal achievement. This approach is based on the concept that youths who
have practice in negotiations are more successful in discussing disputes and
avoiding fights with their peers.
The peer mediation approach recognizes the importance of directly
involving youth in the mediation process. Accordingly, trained youth media-
tors work with their peers to find resolutions to conflicts. For example, in a
Dispute Resolution 211

Las Vegas, Nevada, youth program, peer mediators successfully resolved 86%
of the conflicts they mediated, and in the schools covered by the program,
there were fewer conflicts and physical fights on the school grounds.
The peaceable classroom and peaceable school approaches are whole-class-
room or school approaches that includes teaching students the foundational
abilities, principles, and one or more of the three problem-solving processes
of conflict resolution. Conflict resolution education is incorporated into the
core subjects of the curriculum and into classroom management strategies.
The peaceable school approach is built on peaceable classroom by integrating
conflict resolution into the management of the institution, with every mem-
ber—from crossing guard to classroom teacher—learning and using conflict
resolution. Most conflict resolution and peer mediation programs (about
10,000 in all) have been implemented in the elementary, middle, and high
schools. There are similar programs in many of our juvenile correctional
institutions. In addition, there are over 600 community mediation centers,
which are typically based in nonprofit community-based agencies.

International Arbitration and Mediation

International arbitration, i.e., arbitration between two sovereign nations

may be a method to prevent wars or to settle wars. As noted by R. Roak
Bishop and James D. McCarthy, arbitration is indisputably the king of
international dispute resolution.24 Bishop and McCarthy see at least three
reasons for their statement. First, international arbitration awards are eas-
ily enforced by treaty obligation through the New York Convention, to
which about 100 nations, including the United States, are parties. They
also note that the United States is not a party to any treaties that con-
cern the enforcement of a court judgment. Second, arbitration provides a
neutral forum that is as free as possible from local bias or prejudice that
companies may encounter in an opposing party’s national courts. And,
finally, arbitration allows for a decision by experts in the subject matter
of the dispute and for otherwise tailoring the dispute resolution needs of
the parties.
In 1856, the Declaration of Paris expressed the hope that the signatories
would use mediation to settle their disputes. At the Second Hague Conference
in 1907, the right of friendly powers to offer mediation was recognized. The
covenant of the League of Nations stated that the members should submit dis-
putes to mediation. The charter of the United Nations requires its members to
submit their disputes to mediation when recommended by the security coun-
cil. As noted earlier, President Roosevelt was successful as a mediator in the
Russo-Japanese War of 1907. In 1966, the Soviet Union mediated the border
212 Law and Society: An Introduction

clashes between India and China. The use of mediation and arbitration is an
attempt to prevent disputes from becoming armed conflicts.

Questions in Review
1. What are the differences between negotiation, arbitration, and
mediation?
2. What are the steps in dispute resolution?
3. Explain the “hidden harmony myth.”
4. Why do only a few disputes go the “whole route”?
5. Why does Friedman claim that the real law of auto accidents is the
law of insurance adjusters and lawyers’ negotiations?
6. Why is arbitration based on contract law?
7. Explain the various types of ADR programs.
8. What is meant by “court-annexed” arbitration?
9. How are arbitrators generally selected?
10. What are the four general approaches to conflict resolution educa-
tion for youths?

Endnotes
1. N. Desantis. (2013, February 14). Judge rejects former Lehigh U. stu-
dent’s big lawsuit over grade. The Chronicle of Higher Education.
Retrieved July 1, 2013, from http://chronicle.com/blogs/ticker/jp/judge​
-rejects-former-lehigh-u-students-big-lawsuit-over-grade
2. M. Palmer & S. Roberts. (1998). Dispute processes: ADR and the primary forms
of decision making. London, England: Butterworths.
3. R. Abel. (1973). A comparative theory of dispute intervention in society. Law &
Society Reader, 8(2), 223.
4. L. Nader, Jr., & H.F. Todd, Jr. (Eds.). (1978). Introduction. In The disputing pro-
cess: Law in ten societies (pp. 14–15). New York, NY: Columbia University Press.
5. D. Stiebel. (1997, May 5). Dispute resolution, Texas Lawyer.
6. G. Turkel. (1996). Law and society: Critical approaches (p. 38). Boston, MA:
Allyn & Bacon.
7. K. Llewellyn. (1960). The bramble bush (Reprint, pp. 2–3). Dobbs Ferry, NY:
Oceana.
8. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 91). New
York, NY: Norton.
9. D. Black. (1976). Behavior of law (p. 43). New York, NY: Academic Press.
10. E.J. Kemp. (1965). Abraham Lincoln’s philosophy of common sense, Vol. 1 (p.
346). New York, NY: New York Academy of Sciences.
11. J.V. Calvi & S. Coleman. (2000). American law and legal systems (4th ed., p. 79).
Englewood Cliffs, NJ: Prentice-Hall.
12. R.H. Mnookin & L. Kornhauser. (1979). Beginning in the shadow of the law:
The case of divorce. Yale Law Journal, 88, 950.
Dispute Resolution 213

13. J. Roehl & L. Ray. (1987, July). Toward the multi-door courthouse: Dispute reso-
lution intake and referral. NIJ Reports SNI, 198, 2.
14. American Heritage Dictionary (4th ed.). (2000).
15. Columbia Encyclopedia (6th ed.). (2000).
16. 111 S.Ct. 1647 (1991).
17. Prudential Securities v. Marshall, 909 S.W. 2d. 896 (Tex.1995).
18. 9 U.S. Code 1 et. seq.
19. 312 U.S. 100 (1941).
20. 490 S.W. 634 (Tex. Civ. App.–Dallas, 1973).
21. Wall Street Journal. (2000, November 29). p. B13.
22. 956 F. Supp. 719, 726 (N.D. Tex. 1997).
23. OJJDP. (1997, March). Fact sheet #55.
24. Mediation special report. (1998, June 29). Texas Lawyer, 1998, 2.
Social Change and Law
8
Chapter Objectives

After reading this chapter you should be able to

• Identify organizations that are important to social change in America

• Explain how the 1964 Civil Rights Act has played a role in popular
culture in America
• Discuss the role that court decisions have on impacting social change

Introduction

Social change and law reflect the constant interaction between behav-
ior and regulation. Social change refers to reshaping the ways in which
people in a society relate to each other with respect to education, employ-
ment, religion, and other basic human interaction activities. Law by its
very definition presupposes rules made by government to regulate the
behavior of people. Thus, the general conception of social change and law
is that a dual relationship exists in which the changing social environ-
ment causes a response from legislators and judges, and legal changes
promote social change.
In this chapter we examine the interplay between social change and law
from several views. After a brief discussion of the nature of social change and
the law, we examine the unique capacity of the courts to serve as a mech-
anism for social change. This viewpoint is illustrated in the U.S. Supreme
Court case, Brown v. Board of Education. Next, we review a list of charac-
teristics found in court decisions that seem to have had more of an impact
on social change. We conclude the first part of the chapter by discussing the
legitimacy of the law to create social change, the influence of law on public
opinion, and the limitations of law to create social change. In the conclud-
ing portion of the chapter we discuss the impact of social change on the law
by illustrating five social movements that profoundly changed the law in the
latter half of the 20h and beginning of the 21st centuries. These include the
civil rights movement, the antiwar movement, the women’s movement, and
the gay rights movement.

215
216 Law and Society: An Introduction

Nature of Social Change and Law

There are various conceptions of what constitutes social change. A

sound-bite definition might include “the effect of citizen protests”
or “the engagement of popular culture.” In the broadest sense, social
change involves large numbers of people (society) who become engaged
in a specific behavior that differs from the usual (change). This defini-
tion suggests that social change is a normal and continuous process that
occurs when people are faced with unaccustomed situations to which
they must respond.
Social change is sometimes an alteration of social life that occurs on a
monumental basis. In such cases, social movements (e.g., civil rights) may
provide the mechanics for social change. Social life can also be altered not
so much by a change in ideology that stimulates action but rather by such
things as technological advances (e.g., computers). Lastly, social change may
be more a reflection of changes in individual beliefs and attitudes (e.g., aspi-
rations). Thus, social change occurs in diverse ways and at various levels of
social life.
Social change may contradict certain fundamental values of people.
Consequently, people may accept those changes that are beneficial to them but
resist or reject changes that are viewed as nonbeneficial. Law then becomes
an essential means to compel such people to engage in long-term support of
social change. In this context, law is socially relevant in that change is not
simply for the benefit of the individuals themselves, but for some larger pur-
pose such as the development of an entire society.

JEREMY BENTHAM (1748–1832)

English philosopher and social reformer, most noted for theorizing
that criminal law had its theoretical basis in utilitarianism. Bentham
believed that all actions are right and good when they promote the hap-
piness of the greatest number. He held that laws should be socially use-
ful and not merely reflect the status quo; that people inevitably pursue
pleasure and avoid pain; and that the function of law is to award pun-
ishment and reward.
Social Change and Law 217

Courts as Mechanism for Social Change

When social change is needed but there is little incentive to change, courts
have the unique capacity to act where other institutions are politically
unwilling or structurally unable to proceed. Former U. S. Supreme Court
Justice William J. Brennan opined, “Insulated as they are from political pres-
sures, and charged with the duty of enforcing the Constitution, courts are
in the strongest position to insist that unconstitutional conditions be rem-
edied, even at significant financial cost.”1 Moreover, court decisions do not
adversely affect the court’s ongoing relations with elected officials, interest
groups, financial backers, and the like, whose cooperation is required for get-
ting work done, for the simple reason that courts are not structured to need
or maintain such ongoing relations. Unlike bureaucracies and large institu-
tions, the parties they deal with vary from case to case.2
The role of courts as a mechanism for social change is becoming more
obvious in today’s society. It is universally understood that courts provide
the structural framework in which social change might be possible and can
be regulated. And, if asked which court has the greatest capacity to effect
social change, undoubtedly most people would reply that the U.S. Supreme
Court is most influential. The reason for this notoriety is that the decisions of
the U.S. Supreme Court have far-reaching effects by making a national issue
out of a local issue.
While there are several U.S. Supreme Court decisions to illustrate this
idea, some of the more socially meaningful cases in American history deal
with civil rights. The most famous case in which the right to education gave
impetus to the civil rights movement of the 1950s and 1960s and hastened
the end of segregation in all public facilities was Brown v. Board of Education.
In the early 1950s, racial segregation in public schools was the norm
across America. Southern schools were segregated under de jure segrega-
tion; laws specifically prohibited integration. Most Northern schools were
segregated too, under de facto segregation. For example, 17 states were
still segregating their schools; 4 states gave the option of segregation to
the school districts; 11 states had no specific laws regarding segregation;
and 16 states flatly prohibited it. Segregation existed because, for the most
part, segregated neighborhoods provided the students for the local schools
and because school districts were sometimes deliberately split up to ensure
segregation.3
In the fall of 1950, members of the Topeka, Kansas, Chapter of the
NAACP (National Association for the Advancement of Colored People)
agreed to legally challenge the “separate but equal” doctrine governing pub-
lic education. Key figures included the chapter president, McKinley Burnett;
attorneys Charles Scott, John Scott, Charles Bledsoe, and Elisha Scott; and
218 Law and Society: An Introduction

NAACP chapter secretary Lucinda Todd. Likewise, their plan involved

enlisting the support of fellow NAACP members and personal friends as
plaintiffs in what would be a class action suit. A group of 13 parents agreed to
participate on behalf of 20 of their children. Each plaintiff was to watch the
paper for enrollment dates and take their child to the elementary school for
white children that was nearest to their home. Once they attempted enroll-
ment and were denied, they were to report back to the NAACP.
One of the parents, Oliver Brown, was assigned as lead plaintiff, princi-
pally because he was the only man among the plaintiffs. His daughter, third-
grader Linda Brown, had to walk one mile through a railroad switchyard to
get to Monroe elementary school (a school for black children), even though
Sumner elementary school (a school for white children) was only a few blocks
away. Linda’s father had tried to enroll her in the white elementary school,
but the principal of the school refused.
On February 28, 1951, the NAACP filed their case as Oliver L. Brown et
al. vs. The Board of Education of Topeka (KS). The U.S. District Court for
the District of Kansas heard Brown’s case on June 25–26, 1951. At the trial,
the NAACP argued that segregated schools sent the message to black chil-
dren that they were inferior to whites; therefore, the schools were inherently
unequal. One of the expert witnesses, Dr. Hugh W. Speer, testified that

if the colored children are denied the experience in school of associating with
white children, who represent 90 percent of our national society in which
these colored children must live, then the colored child’s curriculum is being
greatly curtailed. The Topeka curriculum or any school curriculum cannot be
equal under segregation.4

The board of education’s defense was that segregated schools were

not necessarily harmful to black children. They argued that the African-
American schools were equal in facilities and that teachers were quite
competent. The board also argued that, because segregation in Topeka and
elsewhere pervaded many other aspects of life, segregated schools simply
prepared black children for the segregation they would face during adult-
hood. The request for an injunction put the court in a difficult decision. On
the one hand, the judges agreed with the expert witnesses. In their decision,
they wrote, “Segregation of white and colored children in public schools has
a detrimental effect upon the colored children.…A sense of inferiority affects
the motivation of a child to learn.”
On the other hand, the precedent of a U.S. Supreme Court case, Plessy v.
Ferguson, allowed “separate but equal” school systems for blacks and whites,
and no Supreme Court ruling had yet overturned Plessy. Because of this prec-
edent, the court felt compelled to rule in favor of the board of education.
Social Change and Law 219

The NAACP appealed their case to the U.S. Supreme Court on October
1, 1951, and it was combined with other cases that challenged school segre-
gation in Delaware, the District of Columbia, South Carolina, and Virginia.
The main issue before the court was focused on whether or not denying edu-
cation in a specific school simply due to race had violated the Fourteenth
Amendment. The Fourteenth Amendment states, in summary, that no per-
son, who is a citizen of the United States, should be denied equal protections
under the law or the right to life, liberty, or property. What had to be decided
was whether segregation fell under the idea of equal protections.
On May 17, 1954, Chief Justice Earl Warren announced the decision of
the unanimous Supreme Court:

We come then to the question presented: Does segregation of children in pub-

lic schools solely on the basis of race, even though the physical facilities and
other “tangible” factors may be equal, deprive the children of the minority
group of equal educational opportunities? We believe that it does ... We con-
clude that in the field of public education the doctrine of “separate but equal”
has no place. Separate educational facilities are inherently unequal. Therefore,
we hold that the plaintiffs and others similarly situated for whom the actions
have been brought are, by reason of the segregation complained of, deprived of
the equal protection of the laws guaranteed by the Fourteenth Amendment.5

In effect, the U.S. Supreme Court struck down the “separate but equal”
doctrine of Plessy for public education, ruled in favor of the plaintiffs, and
required the desegregation of schools across America.
This public declaration against segregation in education was only the
first step in making the U.S. school system more equal. One year later, the
U.S. Supreme Court created procedures under which school boards would
desegregate their schools “with all deliberate speed.” This decision, although
spoken easily, was not implemented easily. School systems that had been
segregated since they had begun resisted change. In the most highly pub-
licized and best-remembered confrontation over the implementation of
Brown, President Eisenhower ordered National Guard troops to help nine
black students attend the formerly all-white Central High School in Little
Rock, Arkansas. Six years later, state officials were still fighting this ruling.
Courts had to order and enforce the segregation ruling time and time again,
trying to uphold their decision. In fact, Linda Brown (Thompson) even went
to court again in 1979 to sue Topeka for allowing their schools to remain
segregated. As a result, attorneys petitioned the federal court to reopen the
original Brown case to determine if Topeka Public Schools had in fact ever
complied with the Court’s 1954 ruling.
The case became commonly known as “Brown III.” Attorneys Richard
Jones, Joseph Johnson, and Charles Scott, Jr. (son of one of the attorneys
220 Law and Society: An Introduction

in the original case) in association with Chris Hansen from the ACLU
(American Civil Liberties Union) in New York filed the case, and subse-
quently the Topeka Public Schools were found to be out of compliance. After
several appeals, the U.S. Supreme Court denied Topeka Public Schools’ peti-
tion to once again hear the Brown case. As a result, the school was directed
to develop plans for compliance and built several elementary schools to
ensure a racially balanced school system. Consequently, in 1999, a federal
district court judge ended the court supervision of Topeka Public Schools’
desegregation plan and effectively closed the revived Brown v. Board of
Education case.

TIMELINE OF BROWN V. TOPEKA BOARD OF EDUCATION

1896. Plessy v. Ferguson establishes the “separate but equal” doc-
trine, which concluded that segregation does not conflict with
the Fourteenth Amendment as long as separate facilities for
blacks were “equal” to those of whites.
1951. Attorneys filed court action on behalf of the Rev. Oliver
Brown and other black parents in the U.S. District Court in
Topeka, Kansas. Rev. Brown’s daughter, Linda, wanted to attend
Sumner Elementary School, an all-white school, only a few
blocks from her home. Instead, the 9-year-old was required to
attend Monroe Elementary School, an all-black school, which
was 20 blocks from her home. The court, following Plessy v.
Ferguson, ruled schools attended by black children in Topeka
were equal in all respects to those attended by white children.
The case was appealed.
1954. The U.S. Supreme Court, in a unanimous opinion written
by Chief Justice Earl Warren, ruled that “separate educational
facilities are inherently unequal,” and the “separate but equal”
doctrine had “no place” in public education.
1955. The U.S. Supreme Court’s order required the dismantlement
“with all deliberate speed” of the separate school systems for
black children in the suit, and the case was remanded back to
the U.S. district court for implementation.
1955. The district court concluded desegregation had not been
accomplished in the Topeka schools, but a good-faith effort
had been made. The plan adopted by the Topeka Board of
Education was approved as a good-faith beginning to complete
desegregation.
Social Change and Law 221

1979. Attorney Rich Jones represents Linda Thompson (nee

Brown) in the resurrected version of Brown, claiming that the
Topeka Unified School District 510 had not followed through
on desegregation.
1987. The U.S. district court judge agrees with the school district
that it could not control where people live in a neighborhood
school system. He noted: “There was no illegal, intentional,
systematic or residual separation of races” in Topeka Public
Schools. The decision was appealed to the 10th U.S. Circuit
Court of Appeals in Denver.
1989. A three-judge panel of the 10th Circuit Court reversed on
a 2 to 1 vote, holding that the vestiges of segregation remained
with respect to student and staff assignment.
1990. The school district sought review of the court of appeals
decision in the U.S. Supreme Court.
1992. The Supreme Court ordered the 10th Circuit to reconsider
its decision based on two other recently decided desegrega-
tion cases in DeKalb County, Georgia, and Oklahoma City
schools.
1993. The school district requested the U.S. Supreme Court to
review the case. The U.S. Supreme Court declined.
1994. The district court judge approved the district’s desegrega-
tion plan, which included geographical boundary changes, a
transfer program to enhance racial balance at the receiving
school, and the construction of three new schools.
1995. The district court awarded more than $500,000 to plaintiff’s
attorneys for costs associated with nearly 15 years of litigation.
Taxpayers in Topeka, Kansas, approve a bond issue to fund
three new elementary schools, two of them magnet schools.
The $19.5-million bond issue passes by a margin of more than
2 to 1.
1996. Topeka’s three new schools open. Enrollment counts show
that integration plans are successful, thereby meeting court
standards of racial balance.
1999. Federal district court judge ends court supervision of Topeka
Public Schools’ desegregation plan and effectively closes the
revived Brown v. Board of Education case.
222 Law and Society: An Introduction

Magnitude of Court Decisions

Court decisions may have a differential effect on social change depending on
certain related characteristics. Decisions may have more of a social change
impact if:

• The decision clearly and unambiguously delineates the rights and

obligations of all persons whose behavior is subject to change as a
result of the decision.
• The court decision is self-executing, rather than one that requires
an increasing number of other persons to get involved in its
implementation.
• The court decision is perceived as authoritative by those at whom it
is directed.
• Compliance with the court decision is not dependent on the transfer
or reallocation of resources by those opposed to the decision.
• The court provides for the application of sanctions for noncompliance.

Conversely, courts often lend support to social change not so much by

executing court decisions, but rather by their inaction. This is particularly
true when an appellate court refuses to hear a case, thereby upholding a deci-
sion of the lower court. Such inaction favors change by refusing to decide
a case in which a lower court decision has gone against forces seeking to
preserve the status quo. Similarly, the U.S. Supreme Court makes rulings
in which it finds that individual states should be responsible for deciding
the magnitude of social change for its citizens. Consider, for example, the
attempts of Dr. Jack Kevorkian to provoke the U.S. Supreme Court to decide
the issue of euthanasia.
In April 1995, the U.S. Supreme Court rejected Dr. Kevorkian’s claim
that the Constitution permits doctor-assisted suicides. The justices refused
without comment to hear Kevorkian’s appeal of a 1994 Michigan Supreme
Court ruling that the Constitution contains no right to assist another per-
son’s suicide. Kevorkian felt strongly that assisted suicide by medically quali-
fied persons should be an appropriate alternative to life for persons who
suffered from intolerable pain and debilitating illness. He vowed to continue
to help terminal patients kill themselves.
In September 1998, Kevorkian videotaped the killing of Thomas Youk,
a Detroit man who suffered from Lou Gehrig’s disease. The homemade
tape, which showed Kevorkian administering a lethal injection of potas-
sium chloride, was aired in November 1998 for a national audience by CBS
on the popular television show 60 Minutes. During the show, Kevorkian
informed reporter Mike Wallace that he wanted to be charged to force law
enforcement authorities to try him again in court and to legally resolve the
Social Change and Law 223

emotional issue of euthanasia. CBS agreed to turn over the videotape to

Michigan prosecutors, and Kevorkian was arrested and charged with first-
degree murder.
It took the jury of seven women and five men approximately 13 hours
to reach a unanimous guilty verdict. Reportedly, the jurors spent most of
their time deliberating not between guilt or innocence, but whether to find
Kevorkian guilty of first- or second-degree murder. Kevorkian was convicted
of second-degree murder and served his prison sentence until he was paroled
for good behavior on June 1, 2007. He served a little over 8 years in prison.
Kevorkian died of natural causes in 2011.6

Legitimacy of Law to Create Social Change

While social change may be initiated by a number of means, there is a gen-
eral willingness of people in society to accept law as the legitimate means of
creating social change. One reason for this affirmation is that law is a rational
approach to alter a specific behavior or practice in society. Nonlegal efforts
are often viewed as nonproductive means of achieving social change. This is
particularly true when the motivation is to force change, as is frequently the
case when demonstrations and riots occur. Another explanation for the legit-
imacy of law is that it is rooted in the beliefs and values of the people to whom
it is supposed to apply. Exercising their moral judgment, their emotions, and
their reasoning, people deepen their understanding and shared agreement
about legal norms and legal decisions. Consequently, they are committed to
legal norms and are willing to obey them.7 Law in society is also validated as
the proper means of obtaining social change because it is inherently authori-
tative and supported by institutional systems of enforcement and sanctions.
Thus, noncompliance of the law initiates different kinds of actions to rein-
force accepted modes of behavior.
The legitimacy of law to create social change is reinforced by a belief
that the law is fair and just because it is applied equally. The equal pro-
tection clause of the Fourteenth Amendment of the U.S. Constitution, for
example, prohibits a state from denying any person within its jurisdiction
the equal protection of the laws. In other words, the laws of a state must
treat an individual in the same manner as others in similar conditions
and circumstances. The equal protection clause is not intended to provide
“equality” among individuals or classes, but only the “equal application”
of the laws. Therefore, the result of a law is not relevant so long as there is
no discrimination in its application. By denying the state the ability to dis-
criminate, the equal protection clause of the Constitution is crucial to the
protection of civil rights.
224 Law and Society: An Introduction

Public Opinion
One way in which the law can produce social change is through public opin-
ion. A claim that can be made on behalf of the active role of the courts to
produce improvements in society is that court decisions raise the conscious-
ness of citizens about social problems. This heightened awareness sensitizes
the public to issues that have social relevance. This then stimulates public
opinion, which in effect can have some bearing on the relationship between
law and social issues.
Public opinion varies in its support of certain statutes. An illustration of
this point is a recent public opinion poll taken by Gallup. This poll pertains
to the gun laws in the United States after the school shootings in Newtown,
Connecticut. The general public was asked if they thought that gun laws
should be stricter. In 2012, 25% felt dissatisfied with current laws and wanted
stricter laws. In 2013, that changed to 38%.8
Another poll taken by Gallup related to the U.S. Supreme Court’s
June 2000 ruling that prohibits student-led prayer in school. In Santa Fe
Independent School District v. Jane Doe, the Court found that prayer does not
belong in schools, regardless of who initiates and leads it. The case involved
the constitutionality of student-led prayer broadcast over the public address
system before high school football games. Telephone interviews of a ran-
domly selected national sample of 1,016 showed that the public disagrees
with the Court regarding this issue. When asked about allowing students to
say prayers as part of the official program at graduation ceremonies, 83% of
Americans favor the idea and just 17% are opposed.9

Limitations of Law to Create Social Change

When law is created as an implement of social change, it needs the support
of society. Unfortunately, citizens have always been able to find a justifica-
tion for their resistance to change. In contemporary times, for example, the
phrase “make a federal case” has become widely known to mean using a legal
action to achieve “something.” Far too often, however, the “something” is
related to personal agendas rather than the good of society as a whole. Such
ideology lends itself to the belief that there are too many laws in society, that
many laws have more to do with political correctness rather than jurispru-
dence, and that survival in today’s “litigation-happy” society is predicated on
whether one possesses a law degree. Under such thought, the likelihood of
supporting social change as a matter of law is quite remote.
Resistance to social change frequently occurs when it conflicts with
traditional values, beliefs, and prevailing customs of the society. People are
particularly quick to oppose change when it interferes with their habits.
Moreover, when it is perceived to deprive the individual of the right to take
Social Change and Law 225

control over his or her own fate, the level of resistance is elevated. An excel-
lent example of this is the battle between antigun groups and the National
Rifle Association (NRA). The motif of antigun activists is to stop unregis-
tered, unlicensed, and unregulated guns. While legislation has been enacted
to meet this objective (e.g., the February 1994 Brady Act), many Americans
side with pro-firearm lobbying efforts citing Constitutional rights found in
the Second Amendment to keep and bear arms. Setting the debate aside, cur-
rent gun control legislation may realistically have little impact on providing
safer streets in communities. Consider these facts from the Bureau of Justice
Statistics:10

• Despite general support for the idea of stricter gun-control laws,

women are more likely to say that the way parents raise their chil-
dren (38%) is the primary cause of gun violence, rather than the
availability of guns (24%).
• According to the National Crime Victimization Survey (NCVS),
armed offenders committed 22% of all violent crime incidents,
including only 8% by offenders with a firearm.
• Despite the Brady Act, gun homicides involving adult offenders age
25 or older declined from over 10,000 in 1980 to 4,660 in 1999, and
increased since then to 5,460 in 2008.

The effectiveness of the law as a compelling force to social change is

more or less hindered by a variety of factors. Using our example of gun con-
trol legislation, it is clear that the efficacy of such laws is dependent upon its
adherence by all people in society. Unfortunately, criminals are more likely
to disobey the law because they have no sense of moral obligation. This real-
ization can cause others in society to become noncompliant of the law if only
because they feel a need to be armed in order to protect themselves from
armed criminals.
Limited economic resources often act as barriers to the social change
efforts of law. Burdensome cost associated with social change coupled with
the lack of economic resources in a community influence the level of resis-
tance to change. The greater the unequal distribution of wealth, the more
likely it is that pockets of society, namely the poor, will resist social change
efforts simply because they can’t afford it.

Impact of Social Change on Law

Thus far, we have examined the interplay between law and society from the
perspective of law creating social change. But what about changes in soci-
ety that serve as precursors to the creation of law? It stands to reason that
226 Law and Society: An Introduction

increases in social sophistication can effectively cause increases in the prom-

ulgation of law. American society over the past two centuries has become
larger, more diverse, urbanized, more scientifically and technologically ori-
ented, and industrialized, and thus has exhibited change in all social institu-
tions. And, historically, it has been the totality of social, legal, and political
change in the United States that has given rise to changes in the law.
In order to explore the relationship between social change as an imple-
ment to law, we briefly examine four connected social movements that served
as powerful sources of social change in the United States. They include the
civil rights movement, the antiwar movement, the women’s movement, and
the rights for sexual minorities movement.
Each of these movements has its own rich history that spans many years
throughout the 20th century. But setting aside their unique qualities that led
to implementing laws in America, it is important to note that these move-
ments coexisted, with the bulk of their efforts occurring within the last four
decades. As such, these movements collectively changed American society
by challenging the ways that people thought about and behaved toward each
other.

The Civil Rights Movement

An estimated 200,000 people attended the August 28, 1963, March on
Washington for Jobs and Freedom, urging support for pending civil rights
legislation that had been sent by President John F. Kennedy to Congress in
June of that year. Highlighting the event was a speech by Dr. Martin Luther
King, Jr., in front of the Lincoln Memorial, which has come to be known as
“I Have a Dream.” King’s address captured the idealistic spirit of the demon-
stration. “I have a dream,” he said, “my four little children will one day live
in a nation where they will not be judged by the color of their skin but by the
content of their character. I have a dream today!”11
The 1964 Civil Rights Act banned many forms of discrimination on
grounds of race, color, sex, and national origin. Of greatest relevance were
Title VI and Title VII of the Act. Title VI reads: “No person in the United
States shall, on the grounds of race, color, or national origin, be excluded from
participation in, or be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” Title
VII bans discrimination in employment on grounds of race, color, national
origin, and sex.

The Antiwar Movement

The antiwar movement focused on America’s participation in the Vietnam
War. During the 4 years following passage of the August 1964 Tonkin
Social Change and Law 227

Gulf resolution, which authorized U.S. military action in Southeast Asia,

the American air war intensified and troop levels climbed to over 500,000.
Opposition to the war grew as television and press coverage graphically
showed the suffering of both civilians and conscripts. In 1965, demonstra-
tions in New York City attracted 25,000 marchers; within 2 years, similar
demonstrations drew several hundred thousand participants in Washington,
DC, London, and other European capitals. Most of the demonstrations were
peaceful, but as the war effort in Vietnam escalated, so too did opposition to
the war, to the point that the country was bitterly divided over the American
presence in Vietnam.
Many of the antiwar activists were experienced in the principles and
methods of nonviolent demonstration because of their involvement in the
civil rights movement, which had developed a strong tradition of nonvio-
lent protest. These people believed that the best way to demonstrate their
opposition to the use of military force in Vietnam was through peaceful
means. However, another faction of people active in revolutionary orga-
nizations, possessed the ideologies of militant activists, and frequently
organized militant events to protest the Vietnam War. These two ideolo-
gies (one of nonviolent demonstration and the other of militant protest)
could be found concurrently at rallies, demonstrations, and other antiwar
events.
On November 15, 1969, the largest antiwar demonstration took place in
Washington, DC. This Moratorium march on Washington was organized by
a group called the New Mobilization Committee to End the War in Vietnam,
a broad coalition of over 100 antiwar groups. Most of the marchers were
young college students, but the event was also well attended by citizens of all
ages and from all walks of life, including Vietnam veterans.
The weekend-long antiwar march on Washington included speeches by
political and religious leaders and performances by well-known folk singers.
An estimated crowd of 300,000 people participated in the event. The events
officially ended at about 8 p.m. on Sunday, and many of the marchers, who
had come from other areas of the country, boarded their buses and left for
home. After nightfall, the scene turned ugly. A group of about 500 militant
demonstrators became violent. They began to throw rocks and bottles at win-
dows in government buildings and at the local police. A considerable amount
of damage was done to more than 30 store windows. The police responded by
firing smoke grenades and tear gas at the demonstrators. Finally, the demon-
strators were suppressed, and nearly 100 people were arrested. Other protest-
ers required medical attention, primarily for treatment from the effects of
the tear gas.
While the evening violence tarnished the antiwar demonstration, it
was considered not to be representative of the general feeling and spirit of
the march. The New Mobilization Committee denounced the violence as
228 Law and Society: An Introduction

the work of a “fringe element of radicals” who had no connection with the
vast majority of the march’s participants. Many of the marchers publicly
expressed similar sentiments. And although the weekend was marred by the
actions of these militants, the march still played an extremely significant role
in the development of American opposition to the Vietnam War. It was later
considered by many historians and political analysts to be a turning point at
which it was finally made evident that American public opposition to the war
was extensive and was a force that needed to be seriously considered by those
in the government.
In 1968, President Lyndon Johnson, who was challenged by two antiwar
candidates within his own party for the presidential nomination, Senators
Eugene McCarthy and Robert Kennedy, chose not to run. The election of
President Richard Nixon in 1968 and his reduction in U.S. ground forces did
little to dampen the antiwar movement. His decision to invade Cambodia in
1970 led to massive demonstrations on college campuses, most tragically at
Kent State University, where four people were killed by members of the Ohio
National Guard.12

The Women’s Movement

Although Abigail Adams pressed for the inclusion of women’s emancipa-
tion in the U.S. Constitution, the women’s movement really dates from 1848,
when Elizabeth Cady Stanton, Lucretia Coffin Mott, and others, at Seneca
Falls, New York, issued a declaration of independence for women, demand-
ing full legal equality, full educational and commercial opportunity, equal
compensation, the right to collect wages, and the right to vote. The women’s
movement quickly spread and soon extended to Europe. Over the next 100
years, little by little, women’s demands for higher education, entrance into
trades and professions, married women’s rights to property, and the right to
vote were conceded.
In the 1960s, the women’s movement experienced a rebirth, espe-
cially in the United States. The National Organization for Women (NOW),
formed in 1966, had over 400 local chapters in only a short few years. NOW,
the National Women’s Political Caucus, and other groups pressed for such
changes as abortion rights, federally supported child-care centers, equal
pay for women, the occupational upgrading of women, the removal of all
legal and social barriers to education, political influence, and economic
power for women. The highest priorities for NOW was the Equal Rights
Amendment (ERA).
In October 1971, the House passed by 354 votes to 23 the following
version of the ERA: “Equality of rights under the law shall not be denied or
abridged by the United States or by any state on account of sex.” In March
1972, the Senate passed it by an overwhelming margin of 84 votes to 8.13
Social Change and Law 229

President Richard Nixon endorsed the ERA, and by early 1973, 30 states
had ratified it.14 But several Supreme Court decisions in the early 1970s
clearly showed that the justices were divided on the issue of the ERA. And,
after the initial rush to ratification, only three further states ratified in
1974, one in 1975, none in 1976, and in 1977, Indiana became the last state
to approve it, leaving the ERA 3 states short of the 38 necessary for ratifica-
tion. Despite the decision by Congress to extend the ratification deadline
from 1979 to 1982, the amendment was never ratified by a sufficient num-
ber of states.
The U.S. Supreme Court unwittingly contributed to the failure of the ERA
by its Roe v. Wade abortion decision. As Hugh Graham notes, “Traditionalist
women led by Phyllis Schlafly, and the resulting stalemate ultimately doomed
the feminists’ congressional triumph of 1972.”15 The defeat of the ERA, like
the continuing protest over Roe itself, indicated that there were powerful
ideological and political limits on the willingness of many Americans to
embrace the feminist agenda on sex equality.16 Changes in statutory laws and
court decisions have contributed to a reduction of gender discrimination in
the United States. But as many research studies indicate, there is still sig-
nificant progress needed to remove gender discrimination in society and in
business.

Rights for Sexual Minorities

Social change is playing a major role that is impacting the rights of sexual
minorities. President Obama announced in 2013 that he had evolved from
a position that did not support gay marriage to one that does. Gay marriage
has been approved in nine states and the District of Columbia (Connecticut,
Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York,
Vermont, and Washington). According to a Gallup poll taken in 2013, 54%
of Americans say they would vote for a law giving marriage benefits, such as
those for insurance, taxes, or Social Security, to spouses of federal employees
in same-sex marriages. However, this is not a one-sided debate. There are 31
states that have amended their state constitutions to limit marriage to one
man and one woman.
The U.S. Supreme Court will weigh in on this social issue, as the Court
will consider arguments in two cases that have the potential to redefine
marriage at the national level. The first is California’s Proposition 8 ban
on same-sex marriage. The second is the constitutionality of the Defense
of Marriage Act. This latter case contains a provision that defines mar-
riage as between a man and a woman for the purpose of deciding who can
receive a range of federal benefits. The implications of social change on
the law are undoubtedly powerful.
230 Law and Society: An Introduction

Questions in Review
1. Why are organizations such as the NAACP and ACLU important to
social change in America?
2. Under what circumstances are court decisions more likely to effect
social change?
3. Why is gun control in America such a controversial issue?
4. How has the 1964 Civil Rights Act played a role in popular culture in
America?
5. Although the Equal Rights Amendment failed, what contribution to
social change did the women’s movement play?

Endnotes
1. Rhodes v. Chapman, 452 U.S. 337 (1981) p. 359.
2. G.N. Rosenberg. (1991). The hollow hope: Can courts bring about social change?
Chicago, IL: University of Chicago Press.
3. Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951); Brown v. Board of
Education, 347 U.S. 483 (1954).
4. Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951); Brown v. Board of
Education, 347 U.S. 483 (1954).
5. Brown v. Board of Education, 349 U.S. 294 (1955).
6. For more information regarding the Fourteenth Amendment and assisted sui-
cide, see Washington v. Harold Glucksberg, 117 S. Ct. 2258, 138 L.Ed. 2d 772
(1997); Vacco, Attorney General of New York v. Quill, 117 S. Ct. 2293, 138 L. Ed.
2d. (1997).
7. G. Turkel. (1996). Law and society: Critical approaches. Needham Heights, MA:
Allyn & Bacon.
8. Gallup Organization. (2013, January 7–10). Princeton, NJ.
9. Gallup Organization. (2000, May 5–7). Princeton, NJ.
10. L.S. Gifford, D.B. Adams, G. Lauver, & M. Bowling. (2000). Background checks
for firearm transfers, 1999 (Bureau of Justice Statistics Report NCJ 180882).
Rockville, MD: NCJRS.
11. T. Branch. (1998). Parting the waters: America in the King years, 1954–1963.
New York, NY: Simon & Schuster.
12. C. DeBenedetti. (1990). An American ordeal: The anti-war movement of the
Vietnam era. Syracuse, NY: Syracuse University Press.
13. H.D. Graham. (1990). The civil rights era: Origins and development of national
policy: 1960–1972 (pp. 418–419). New York, NY: Oxford University Press.
14. J.J. Mansbridge. (1986). Why we lost the ERA. Chicago, IL: University of Chicago
Press.
15. H.D. Graham. (1990). The civil rights era: Origins and development of national
policy, 1960–1972 (p. 419). New York, NY: Oxford University Press.
16. R.J. McKeefer. (1993). Raw judicial power? The Supreme Court and American
society. Manchester, England: Manchester University Press.
Lawyers
9
Chapter Objectives

After reading this chapter you should be able to

• Explain the role of lawyers in our society

• Discuss why society tends to have a love–hate relationship with lawyers
• Discuss the concept that “law is a jealous mistress”
• Explain why law is considered as an adaptive profession
• Discuss the Socratic method of teaching
• Define the duties that an attorney owes to his or her client
• List which decisions that an attorney should make and which deci-
sions that the client should control
• Discuss the concept that a prosecutor’s primary duty is not to prosecute
• List the restrictions on attorney advertising

Introduction

If we did not have lawyers, we would not need lawyers.

From the movie The Murder of Crows

Once, I decide to take a case, I have only one agenda: I want to win. I will try,
by every fair and legal means, to get my client off—without regards to the
consequences.
Alan Dershowitz, The Best Defense

The law is a jealous mistress.

An anonymous but familiar statement

It is often stated that Americans have a love–hate relationship with lawyers.

Lawyers are both cursed and praised. Compare the above three quotes. What
do they imply regarding the legal profession? Does the first quote imply that
we do not need a legal profession? What does the second quote imply regard-
ing the ethics of the legal profession? Would you agree with Mr. Dershowitz

231
232 Law and Society: An Introduction

if you were representing someone who had committed a violent crime and
you knew that your client was guilty? What does the concept that “law is a
jealous mistress” imply about the legal profession?
This chapter examines the legal profession and its role in society. Law is
considered as one of the three archetypical “learned” professions, with the
Church and medicine being the other two. About 200 years ago, Edmund
Burke, an influential British statesman and orator, stated that in “no other
country, perhaps, in the world, is the law so general of a study as it is in the
United States.”1 Despite the fact that it is so generally studied, it appears that
the American people have many misconceptions regarding the legal profes-
sion. The authors of this text, one an attorney and former judge and the other
a nonlawyer, criminal justice practitioner and educator provide their assess-
ment of the current status of the legal profession.

The Legal Profession

Oliver Wendell Holmes once stated that law embodies the story of a nation’s
development through many centuries and cannot be dealt with as if it con-
tained only the axioms and corollaries of a book of mathematics. Holmes also
stated that in order to know what the law is, we must know what it has been,
and what it tends to become.2 As noted earlier, legal systems were developed
as a means of formal control in societies. As legal systems developed, so did
the legal profession. As with our legal system, the American legal profession
is a hodgepodge of borrowed principles and homegrown theories. It is an
adaptable profession and, thus, it changes to meet the needs of times.
The origins of the legal profession have been traced back to the Roman
Empire. Roman law allowed individuals to present cases for others. At
first, the individuals were trained in rhetoric rather than in the law. Later,
Roman “jurists” became popular. Jurists were individuals who were knowl-
edgeable about the law, and they advised individuals about the law. By the
time of the Imperial Period, the complexity of Roman law made the legal
profession indispensable.
Originally, the word attorney implied an agent. During the Middle Ages,
attorneys had three basic functions—agent, spokesperson, and consultant.
In Rome, they were allowed to appear on behalf of and in place of another
person. In France, the attorney could appear with the person, but the person
had to also appear. In England, the king’s permission was needed to appear
in place of another person.
Harold L. Wilensky, in his study of the development of professions,
stated that professions passed through the following general stages as they
developed into professional status:
Lawyers 233

• The work becomes a full-time occupation for certain individuals.

• Training schools are established.
• Training schools affiliate with universities.
• Local professional associations are started.
• National professional associations are established.
• Licensing laws are established, giving the profession market control.
• Formal codes of ethics are established.3

Looking at the history of the legal system, it is clear that our legal system has
developed into a highly professional status along with medicine.

The Legal Profession in the United States

Many individuals contend that we have too many lawyers in the United
States. It is often said that we are the most litigious society in history. Our
present-day legal system was not developed overnight. It is the result of
centuries of evolution. Whereas the legal profession in England makes clear
distinctions between those attorneys who are trial lawyers (barristers) and
those who are not (solicitors), our legal system lacks these formal distinc-
tions. For the most part, any attorney in the United States may be either
a trial or nontrial attorney. In actual practice, most attorneys tend to be
generalists. Lawyers who are admitted to practice in one state are not per-
mitted to practice in other states without special permission of the courts
of the second state. To practice in a federal court, attorneys must generally
be admitted to practice in the state courts and then be admitted to practice
in the specific federal court. For example, an attorney who is admitted to
practice in California can generally practice in all California state courts,
but must be admitted to each federal court before the attorney can practice
in that federal court.

Evolution of the Legal Profession in the United States

The legal profession in colonial America was transported from England,
but with greater decentralization than existed in England. Prior to the
Revolution, the practice of law in colonial America was monopolized by
the upper-class merchants and plantation owners’ sons. Wealthy mer-
chants and plantation owners tended to send their sons to England to
study law.
The power of admission to the practice of law was delegated by the colo-
nial legislators to the courts. The courts then looked to the local bar associa-
tions to recommend attorneys for admission. The bar associations became
powerful political elites that controlled admission to the legal profession.
234 Law and Society: An Introduction

Before the Revolution, lawyers were generally unpopular. The Puritans felt
that all the laws they needed were contained in the bible. Except for the
wealthy, the planters were also opposed to lawyers because of the threat they
posed to the planters’ political power.
During the American Revolution, most lawyers, being mostly from
the upper class, were British sympathizers. After the Revolution, the legal
profession became more egalitarian. The English distinction between
barristers and attorneys disappeared. The standards of admission were
relaxed, and the power of bar associations waned. By 1800, the power of
admission to the bar was delegated to the local courts. Accordingly, attor-
neys were admitted in some courts within their state and not in others.
Today, the state bar associations in most states now control admission to
the bar.
In the 18th and 19th centuries, neither a college education nor formal
legal training was absolutely required for admission to practice. Successful
passing of the bar examination was the governing factor. Often the bar
examination was oral. The principal method of preparing for the practice of
law was by working in the law office of another attorney and “reading” the
law. Even today, in some states, an individual may qualify to take the bar
examination by “reading” the law.
The first law school was founded in Litchfield, Connecticut. It started out
as a specialized law office offering apprentice programs. The course of train-
ing was about 14 months and offered no diploma. The training was based on
lectures. There was no written material, the theory being that if there were
written materials, the students would not need to pay tuition to hear the lec-
tures. William and Mary University established a program in law in 1779.
Columbia University started one in 1793 and Harvard in 1816. Today, most
formal legal education takes place in universities.

Legal Education
Most lawyers in the United States today have at least a baccalaureate degree
in addition to 3 years of law school. Now, our legal education is centered on
the universities. The normal educational model for U.S. law schools is for
the students to read actual court cases, extract general principles, and then
submit to classroom interrogation by law professors. Lectures are rare in law
school, with most professors using the Socratic method, wherein a continu-
ous series of challenging questions is put to the students. The students are
expected to apply the reasoning and rules of law that they have abstracted
from assigned cases to hypothetical scenarios.4 This procedure is designed to
imitate the legal reasoning process of judges.
The Socratic method allows students to think in terms of opposing par-
ties and to consider only those facts that are relevant to the guiding principles
Lawyers 235

of the case. This results in an impersonal analysis of situations and obscures

the reality that real cases involve real people with real conflicts. Law profes-
sors attempt to instill in their students the ability to sort through the various
factual accounts of a conflict and to reduce the event to its barest legal bones,
which in turn results in detachment from the parties and their misery. As
Professor John T. Noonan once stated,

Focusing on the rules, [the law professors] instilled in students a sense that
the legal system was not the creature of individual caprice or the expression
of raw power, but tradition constantly refined by reason.… Their purpose is to
increase the sense of responsibility of those who by their thought and action
make the system exist.5

IS THE PRACTICE OF LAW A CONFIDENCE GAME?

Abraham Blumberg contended that, in many ways, the practice of
law, especially in the criminal courts, is a confidence game.6 Blumberg
looked at the fact that over 90% of the convictions in criminal cases
were not the product of a combative, trial-by-jury process, but were
negotiated, bargained-for pleas of guilty. He held that the high convic-
tion rate without the features of an adversary trial tended to suggest
that the “trial” becomes a perfunctory reiteration and validation of the
pretrial interrogation and investigation. He also contended that the
accused’s own lawyer tends to be coopted to become an agent-mediator
who helps the accused define his or her situation and restructure his
or her perceptions to be concomitant with pleas of guilty. A defense
lawyer is considered as “an officer of the court” and is held to a stan-
dard of ethical performance and duty to his or her client as well as to
the court. According to Blumberg, defense lawyers have close and con-
tinuing relations with the prosecutor and the judge, while the accused
people come and go in the court system schema. He sees the accused as
a secondary figure in the court system and a means to other ends of the
courthouse regulars.
Blumberg also recognized that the fees for legal services particularly
play into the scenario of a confidence game. With plumbers, doctors, or
other experts, there is usually tangible and visible evidence of the value
of their services. Since much legal work is intangible, there is often a
lack of tangible and visible evidence of the value of the legal work. For
example, when the defense counsel negotiates a plea bargain, we never
know what bargain the defendant may have received had he or she bar-
gained without an attorney.
236 Law and Society: An Introduction

DO I NEED AN ATTORNEY?
A few years ago, an automobile insurance company in Florida sent let-
ters to people injured by its automobile policyholders. The letter, enti-
tled “Do I Need an Attorney?” informed the accident victims that it was
their decision whether to hire an attorney. The letters generally include
statements that:

• Claims are settled faster when no lawyer is involved.

• Lawyers charge a percentage of the recovery plus expenses, but
if the victim settles directly with the insurance company, he or
she will keep the entire amount.
• Victims can hire a lawyer at a later date if they’re not satis-
fied after negotiating directly with the company. The letter also
notes the statute of limitations for filing a claim.
• Some of the letters referred to the accident victims as “custom-
ers” of the company, even though they are on the opposite side
of a claim against the company.7

Why was the insurance company encouraging victims not to hire an

attorney?
Do you have any problems with the practice of an insurance company
discouraging a victim from seeking legal advice?
Would your answers be different if you were aware of the following
facts?

• In a study by the insurance company, it was determined that

66% of the claims with no lawyer involved were processed
within 90 days, compared to only 10% with lawyers involved.
• According to the American Trial Lawyers Association, the
average settlement in 1996 (industry-wide) with no lawyer
present was $3,262, compared to $11,939 when a lawyer han-
dled the case.
• That often in the negotiations between a victim without an
attorney and the insurance company, the insurance company
encourages the victim to turn over confidential information
that may later be used against the victim.
• That the interests of the victims and those of the insurance
company are directly opposed. The victim wants to maximize
the recovery, and the insurance company wants to minimize it.
Lawyers 237

The Legal Profession Today

Law is a big business in the United States. Legal work accounts for approxi-
mately 2% of the gross national product. About 75% of the attorneys in active
practice today are engaged in private practice. Roughly 12% of the attorneys
are employed by federal, state, and local government. The remaining lawyers
are either in private employment as salaried employees of private companies
or are in the small group that comprises the judiciary.
According to a study of California lawyers by the California Bar Journal,
many attorneys have a pessimistic view of the legal profession. Of the 2,700
attorneys questioned, 63% said that there were too many lawyers in the state,
while 67% said that they believe lawyers compromise their professionalism
as a result of business and economic pressures. Only 41% felt that attorneys
had high ethical standards, and 54% said attorney advertising contributed
to this decline in professionalism. Their view of the future was also not very
bright. About 64% stated that collegiality and civility would decline, and 43%
stated that professionalism would decline. As to the question: Would ethical
standards decline? For 31%, the answer was yes.8
Lawyers in other states are also unhappy with the present state of the legal
profession. For example, one Florida lawyer who makes $700,000 a year stated:

I’m rapidly approaching that point, in spite of the fact that I have a very lucra-
tive practice. There is so much unethical, sleazy behavior going on that a lot of
lawyers are totally exasperated. It’s starting to take a mental toll. I don’t know
how much longer I can stand dealing with these guys.9

According to this attorney, some of the problems that currently exist in the
legal profession include lax discipline and the practice of delay, diversion,
and deception.

Courthouse Work Groups

One of the major organizational goals of trial courts is the efficient disposi-
tion of cases assigned to that court. The term courthouse work group is used to
describe the judges and attorneys who regularly work in a court. The judges
and counsel are graduates of the law school system discussed previously. These
individuals have similar educational backgrounds, work closely with each
other, and most have similar career goals. Harmony within the court systems
is promoted by discretion and negotiation within the courthouse work group.
Emotionally involved litigants often have difficulty with the impersonal-
ity of their attorney and are frustrated by their advocate’s lack of personal
involvement in the conflict. Litigants cannot understand how opposing law-
yers can talk and laugh together during breaks in the trial. As noted by Calvi
238 Law and Society: An Introduction

and Coleman, individuals not familiar with courthouse proceedings fail to

recognize the norms that bind the court personnel. They also point out that
courts are permanent organizations where the judge, clerk, court reporter,
and bailiff are a fairly static group and that the attorneys work together and
oppose each other on a fairly regular basis. According to Calvi and Coleman,
the resulting group norms promote the establishment of friendly relations
among the courtroom regulars.10

Malpractice
Many unhappy clients sue their attorneys. In the medical profession, it is
often difficult to obtain a physician who will testify against a fellow physician.
This is not the case in the legal profession. Attorneys generally show no reluc-
tance in suing fellow attorneys. The practice has escalated in recent years.
All state bar associations have education programs designed to prevent legal
malpractice by lawyers. Recent trends in malpractice suits include

• Failure of the attorney to avoid subjecting the client to the risk of

litigation. As one court noted, the question remains as to whether
the defendants, as reasonably prudent attorneys, should have fore-
seen that the option, as drafted, was likely to result in litigation and
whether other attorneys, in similar circumstances, would have taken
steps to prevent such a result.
• Loss of chance to sue. If the attorney allows the statute of limitations
to expire or fails to prevent a default judgment, a client may sue for
“loss of chance” to recover on a legal claim.
• Liability in personal and sexual relationships with clients. In most
states, it is malpractice to have sexual relationships with clients. As
one California court stated: “The emotional vulnerability of a client
often renders the client dependent upon the lawyer. And that such
conduct necessarily falls below the standards of the legal profession.”11
• Ethical rules as standards of liability. While many courts hold that vio-
lations of ethical rules may not be relevant in a malpractice suit, there
are contrary decisions. For example, an Illinois court held that state
ethics rules set the minimum standards of conduct owed to clients.12
• Conflicts of interest. Attorneys can act in situations that may involve
a conflict of interest. For example, a real estate attorney drafts a con-
tract to sell land after advising both parties to the contract as to the
legal effects of the document.13
• Liability for loss of evidence. An Idaho attorney was held negligent for
loss of evidence in handling a product liability claim because he allowed
the client’s car to be destroyed by the insurance company for salvage.14
Lawyers 239

Private Practice
Attorneys in private practice often work 60 hours per week. The private prac-
tice of law is highly competitive and rewards workaholism with money and
status. One pressure on attorneys in private practice is the request for free
legal advice. For example, one Minnesota attorney stated that in addition to
doing pro bono work, he gets weekly phone calls from prisoners at a nearby
jail as well as people who find his name in the phone book. And then there
are his friends and relatives. All of them expect free legal advice. “Pro bono”
work is work that attorneys do without expectation of financial reward. For
example, the State Bar of Texas encourages all of the attorneys involved in
private practice to donate at least 50 hours per year for charity cases, i.e.,
drafting wills for the elderly who cannot afford an attorney or helping abused
spouses get restraining orders. One attorney stated: “People think all lawyers
make $250,000 a year. And so they expect you to give them something for
free.” Note that an attorney who gives free legal advice and leads the person
astray may be sued for legal malpractice.

Lawyer Advertising

Prior to 1977, almost all states restricted lawyers from advertising. In Bates v.
State Bar of Arizona,15 the U.S. Supreme Court held that attorneys have First
Amendment protection, which includes the right to advertise. The Supreme
Court held that advertising legal services is not inherently misleading, and
while advertising does not provide a complete foundation on which to select
an attorney, to deny the consumer one common vehicle (advertising) to
obtain relevant information needed for an informed decision was a viola-
tion of the First Amendment. The Court held that advertising is a traditional
mechanism in a free-market economy for a supplier to inform a potential
purchaser of the availability and terms of exchange, and that it may well ben-
efit the administration of justice.

Should Attorneys Be Allowed to Advertise?

The Bates case established the right of attorneys to advertise. It did not, how-
ever, settle the question as to whether attorneys should be allowed to adver-
tise. Many individuals still feel that advertising is demeaning to the legal
profession and should be banned.
The ban on lawyer advertising originated in England as a rule of eti-
quette and not as a rule of ethics. Early lawyers in Great Britain viewed the
law as a form of public service, rather than a means of earning a living, and
they looked down on “trade” as unseemly. Eventually, the attitude toward
240 Law and Society: An Introduction

advertising fostered by this view evolved into an aspect of the ethics of the
profession. According to Justice Blackmun in the Bates case, the belief that
layers are somehow “above” trade is an anachronism, and the historical
restraint against lawyer advertising has crumbled.
The State Bar of Arizona had argued against permitting attorneys to
advertise because it would have an adverse effect on professionalism. The
state bar held that

• The key to professionalism was the sense of pride that involvement in

the discipline generates and that price advertising would bring about
commercialization, which would undermine the attorney’s sense of
dignity and self-worth.
• The hustle of the marketplace would adversely affect the profession’s ser-
vice orientation and irreparably damage the delicate balance between
the lawyer’s need to earn and his or her obligation to serve selflessly.
• Advertising would erode the client’s trust in his or her attorney.
• If the client perceives that the lawyer is motivated by profit, his or
her confidence that the attorney is acting out of commitment to the
client’s welfare is jeopardized.
• Advertising would tarnish the dignified public image of the attorney.

Another argument presented against attorney advertising is that such

advertising is inherently misleading because

1. Such services are so individualized with regard to the content

and quality as to prevent informed comparison on the basis of an
advertisement
2. The consumer of legal services is unable to determine in advance just
what services he or she needs
3. Advertising by attorneys will highlight irrelevant factors and fail to
show the relevant factor of skill

Justice Blackmun countered these arguments by agreeing that many services

performed by attorneys are indeed unique, and it is doubtful that any attor-
ney would or could advertise fixed prices for services of that type. The only
services that lend themselves to advertising are the routine ones: the uncon-
tested divorce, the simple adoption, the uncontested personal bankruptcy,
the change of name, and similar types of services.
Regarding the second component of the argument, Blackmun contended
that while the client may not know the details involved in performing the
specific tasks, he or she is able to identify the services he or she desires at the
level of generality to which advertising lends itself. Blackmun also held that
the third component was without merit. He stated that while advertising does
Lawyers 241

not provide a complete foundation on which to select an attorney, restricting

advertising serves only to restrict the flow of information to the client.
Another argument commonly stated regarding attorney advertising is
that it has the undesirable effect of stirring up litigation. The Court stated
that while it may produce more litigation, the Court cannot accept the notion
that it is always better for a person to suffer a wrong silently than to redress it
by legal action. The Supreme Court noted that the middle 70% of our popu-
lation is not being reached or served adequately by the legal profession, and
that advertising may help reach that 70%.
The final argument against attorney advertising is that the economic
effects of advertising will increase the overhead costs of the profession, and
that these costs then will be passed to consumers in the form of increased
fees. In addition, the added cost of practice will create a substantial entry bar-
rier, deterring or preventing young attorneys from penetrating the market
while entrenching the position of the bar’s established members. The Court
noted that in the marketplace, consumers have benefitted from the benefit of
price advertising and that retail prices are often dramatically lower than they
would be without advertising. It is entirely possible that advertising will serve
to reduce, not advance, the cost of legal services to consumers. Regarding
the latter portion of that argument, the Court noted that in the absence of
advertising, an attorney must rely on his or her contacts with the community
to generate a flow of business. In view of the time necessary to develop those
contacts, the ban in fact serves to perpetuate the market position of estab-
lished attorneys.

Advertisement Restrictions
Justice Blackmun stated in the Bates decision that, while advertising by
attorneys may not be subjected to blanket suppression, advertising by attor-
neys may be regulated. Advertising that is false, deceptive, or misleading is
certainly subject to restraint. Because the public lacks sophistication con-
cerning legal services, misstatements that might be overlooked or deemed
unimportant in other advertising may be found quite inappropriate in legal
advertising. For example, advertising claims as to the quality of service are
not susceptible to measurement or verification and thus are more likely to be
misleading. In addition, the requirements of warning or disclaimers or the
like may be required to ensure that the consumer is not misled.
The state may place reasonable restrictions on the time, place, and man-
ner of advertising. For example, one New Jersey attorney was disciplined for
making false and misleading statements in her newspaper advertisement. She
was advertising the advantages of using a “living trust” rather than a will. In
her statement, she said that “traditional estate planning was expensive and
could tie up property.” The bar association’s board held that her statements
242 Law and Society: An Introduction

were false, in that probate costs in New Jersey were low, averaging about $74
per case.16 Attorney A. Frank Johns stated that this form of advertising is not
unique. Johns notes:

The elderly, as target audience, are particularly vulnerable. They’re being vic-
timized all the time. These living trust ads, for instance, will crop up in a
certain part of the country, then the local bar will discipline someone, and it
goes away for a while. But in the meantime, it will crop up somewhere else.17

Rosalie Osias, a New York attorney, was criticized for running an ad that
included a picture of her lying across a desk stacked with law books, nibbling
on a pencil, with her legs in the air. The caption under the picture stated:
“Does this law firm have a reputation? You bet it does!!!” Ms. Osias stated that
her ads were the only way she could get around the “old-boy” network and
attract male clients without playing golf or “taking them to see lap dancers.”
One of the complaints was that her ads went a long way toward tarnishing the
already-sullied reputation of the profession. Others contend that the subjec-
tive appeal of an advertisement is something that should be regulated by the
lawyer running the ad, not bar associations. From this perspective, bar asso-
ciations should focus their concern on whether the ad is false and misleading
and nothing else.18
The first step for an attorney wishing to advertise is to review the rules
of his or her state bar association. All state bar associations have restricted
the rights of attorney to advertise. The rules vary widely from state to state.
In Massachusetts, advertising rules include a ban on dramatizations and
testimonials; require a special disclaimer by lawyers who advertise their
experience but then refer most of the cases to other lawyers; mandate that
solicitations to consumers include a statement warning that selecting a lawyer
shouldn’t be based solely on an ad; and compel the use of the word advertising
in large type and red ink on all solicitations. The two states with the strict-
est rules are Iowa and Florida.19 About 40 states have adopted the American
Bar Association’s Model Rules of Professional Conduct in regulating lawyer
advertising. The ABA rules are very broad, allowing the media advertising
but requiring that the attorney keep a copy of the ad for 2 years and that no
false or misleading material be included. As a general rule, advertising may
contain the following items:

• A lawyer’s name or firm name, address, and telephone number

• The kinds of services the lawyer will undertake
• The basis on which the lawyer’s fees are determined, including prices
for specific services and payment and credit arrangements
• A lawyer’s foreign language ability
Lawyers 243

• Names of references and, with their consent, names of clients regu-

larly represented
• Other information that might invite the attention of those seeking
legal assistance

Solicitation of Clients
Lawyers are generally prohibited from directly contacting individuals and
soliciting business. They may, however, send general letters regarding legal
rights to victims of crimes or individuals injured in automobile accidents.
Several years ago, one of the authors was involved in an automobile acci-
dent. The other driver was cited by the police for driving under the influence
of drugs and leaving the scene of the accident. Within 2 weeks, the author
received 21 letters from different law firms informing him of his right to sue
for damages. In a recent commercial airline accident where all the passen-
gers were killed, a nationally known attorney was cited by his bar association
because he had “runners” soliciting clients who had lost relatives in the crash.

Fields of Practice
As a general rule, attorneys may not advertise that they are specialists in
certain fields unless they have been certified as such by the state bar associa-
tion. Attorneys may, however, advertise that they handle only domestic cases,
etc. They may also advertise that their practice of law is limited to the fields
of criminal law, labor law, etc. In addition, they may not imply connections
with government agencies or trade associations.

The Internet
Most state bars are attempting to regulate lawyer websites. The general
approach taken by the bar associations are that the websites are another
form of advertising. The bars restrict client solicitation over the Internet and
require advertising disclaimers on infomercials. A few state bars have deter-
mined that websites are not subject to advertising regulations because they
are requested by a computer user. For example, the Florida bar has said that
any contents on a website beyond the home page will be treated as informa-
tion provided to prospective clients at their request. Thus, Florida law firms
are not required to provide the bar association with interior pages of their
websites. The State Bar of Texas, however, sees a difference in someone call-
ing a law firm and requesting a brochure or other information provided to
prospective clients at their request and a computer user doing a search on a
subject and finding a link to a law firm website. Accordingly, the Texas bar
wants law firms to file up to 10 pages printed out from a website for approval
244 Law and Society: An Introduction

by an advertising review committee. That committee wants to see the por-

tions of the website that are most likely to raise issues of advertising and
solicitations, not the pages that merely list the name of the law firm and its
lawyers.20

Professional Responsibility

What are the professional responsibilities of an attorney? To understand

those duties, we need to look at an attorney’s duties to his or her client, the
rights of the client, the lawyer’s duties to persons other than clients, and
conflicts of interest. The American Bar Association has established the ABA
Model Rules of Professional Conduct. The rules were drafted to encourage
states to adopt them. In one form or another, most states have adopted most
of the principles and concepts set forth in the model rules. The material for
this section is taken from those model rules.

Lawyer’s Duties to the Client

The attorney should not undertake a legal matter unless the attorney is com-
petent to handle the matter. The attorney is required to have the necessary
legal knowledge and skill; the attorney has the duty to act with thoroughness
and to properly prepare for the case (Rule 1.1). There are also the duties to
act with reasonable diligence and promptness, without procrastination, as a
zealous advocate, and to carry matters through to their conclusion.
Without the consent of the client, an attorney may not reveal informa-
tion relating to the representation of the client. The only exceptions to this
rule of confidentiality are:

• To prevent the client from committing criminal acts that are likely
to result in imminent death or substantial bodily harm. For example,
a client tells his attorney that he intends to eliminate one of the key
witnesses. The attorney has a duty, despite the rule of confidentiality,
to disclose this fact to the proper authorities.
• To establish a claim or defense in situations involving a controversy
between client and attorney. For example, in one criminal case dur-
ing jury selection, one of the prospective juror members, a teacher,
stated that she would be biased against the defendant because she
knew his brother. The defendant then stated to his attorney that he
wanted her on the jury because she liked his brother. Neither the
defense attorney nor the prosecutor challenged the woman. When
the jury, which included the teacher, found the defendant guilty,
the defendant filed a grievance with the bar association because his
Lawyers 245

attorney failed to challenge the teacher. The attorney was allowed to

present evidence that, during the secret discussions regarding the
discussion with the client during jury selection, the defendant had
requested that the teacher not be challenged.

The rule of confidentiality continues after the client-lawyer relationship

is over. For example, had O.J. informed his attorneys that he had in fact com-
mitted the murder he was charged with, that confidential information could
not be disclosed even after O.J. was acquitted.
The rule of confidentiality does not cover physical evidence, but com-
munications about the location of the evidence is protected. In one famous
Virginia case, the defendant called his attorney and informed his attorney
that he had just robbed a bank. The attorney asked the defendant where the
money was that he got from the robbery and the location of the weapon that
was used. The defendant stated that he still had both in his possession. The
attorney then instructed the defendant to put the money and the gun in a
safe deposit box in the local bank under a false identity. Unfortunately, the
telephone conversation was overheard by a nosey telephone operator who
reported the conversation to the police.
This case has several interesting legal issues involving the rule of con-
fidentiality. First, was the telephone operator bound by the rule of confi-
dentiality? The court said no. Had she worked in the attorney’s office, she
would have been covered by the rule. Legal assistants, secretaries, etc., are
bound by the rule. But third persons who overhear confidential discus-
sions are not bound by the rule and may discuss them with anyone. What
about the advice of the attorney regarding the hiding of the evidence? The
court said that the attorney did not have a duty to disclose the existence of
physical evidence, but that the attorney committed a crime by instructing
the defendant to hide the evidence. What if the defendant had walked into
the attorney’s office and dumped the evidence on the attorney’s desk? What
should the attorney do in this situation?
The defense has a duty to turn over any evidence in his or her possession,
but may refuse to disclose how the counsel gained possession of the evidence.
In civil cases, an attorney has a safekeeping duty for any client’s prop-
erty (nonevidence) that is in his or her possession. Any funds that belong
to the client that is in possession of the attorney must be kept in a separate
trust fund and cannot be mingled with funds that belong to the attorney.
Any funds recovered by an attorney should promptly be delivered to the
client. If there is a dispute between the attorney and the client regarding
any funds, the disputed funds must be kept separate until the dispute is
resolved.
Generally, an attorney may not act as an advocate in cases where the
attorney is likely to be a witness. The exceptions to this rule are when the
246 Law and Society: An Introduction

testimony involves an uncontested issue, the testimony relates to the nature

and value of legal services rendered, or the disqualification of the attorney
would cause a substantial hardship on the client.

Client’s Rights
Client’s rights issues, not involving property issues, generally involve either
the right to be kept informed or the right to make certain decisions. The
client’s right to be informed includes the prompt response by an attorney to
a client’s reasonable requests, to explain matters sufficiently to allow client
to make an informed decision, and to promptly relay settlement offers. The
attorney may, however, delay information when it is likely that the client
will react imprudently. For example, when the client is a suicide risk, the
attorney may delay telling a client “bad news” until steps may be taken to
protect the client.
Often there are disagreements between the attorney and the client over
decisions that should be made in legal proceedings. Generally, the client
decides the objectives and the attorney decides the means to obtain those
objectives. For example, in a criminal case, the defendant has the final deci-
sion on whether or not to plead guilty, and the attorney decides on which
witnesses to call in defense of the charges. The decision, however, on whether
the defendant takes the stand as a witness in his or her behalf belongs to
the defendant, not the attorney. In most criminal cases, the defense attor-
ney advises the accused not to take the stand. Often the accused, against the
advice of the attorney, takes the stand and the results are disastrous.
The client has the final say regarding decisions involving expenses. The
expenses of the suit are normally paid by the attorney and reimbursed by
the client. In many cases, the attorney will require the client to deposit
funds to cover expenses before they are incurred. The client, not the attor-
ney, has the authority to settle the case. Accordingly, when an offer to settle
is made to the attorney, the attorney has a duty to promptly convey that
offer to the client. The duty to convey the offer to the client exists even if the
attorney knows that the client will refuse it. For example, the prosecutor
offers a plea bargain to the defense attorney that is too harsh and that the
attorney is positive that her defendant will refuse. Nevertheless, the defense
attorney has the duty to promptly convey the offer to the defendant. The
decision on whether to take the offer or to settle a civil suit also belongs to
the client.
The right of the client to fire an attorney is almost absolute. The client
may, however, still owe the attorney reasonable attorney fees. An attorney,
once he or she takes a case, has only a limited right to withdraw. Generally,
the attorney’s withdrawal must be with consent of the client and, if the case is
in court, with the consent of the judge. An attorney may, however, withdraw
Lawyers 247

if the client persists in criminal or fraudulent conduct or if the client’s objec-

tives are repugnant. The attorney may also withdraw with the consent of
the court when the client is unreasonable, or when the client continues to
break promises to the attorney after being given a reasonable warning. For
example, in one case, Cliff Roberson filed a motion with the court to with-
draw from the defense of a murder case. The court permitted the withdrawal
despite the fact that the defendant objected to the withdrawal. The reason
for the withdrawal was that the defendant had informed his attorney that he
intended to commit perjury when he took the stand on his behalf. Roberson
could not inform the court that the accused intended to give false testimony.
Accordingly, the motion was based on the grounds that “continued represen-
tation of the accused by Roberson would violate ethical standards.” When
such motions are presented, the judges understand the real problem that
exists in the case without requiring disclosure of specific facts.
On termination of the attorney-client relationship, the attorney is
required to return all unearned fees and property belonging to the client.

Duties to Others
What duties does an attorney owe to the court and third parties? The attor-
ney must exercise candor toward the court and must not make false state-
ments or material facts or misrepresent the law. Other duties of the attorney
toward the court or other tribunal include:

• Must disclose material facts when necessary to avoid assisting in

criminal or fraudulent acts by the client
• Must not offer evidence that the attorney has reason to believe is
false, e.g., perjury
• Must disclose legal authority that is adverse to the client’s position
• Must not bring frivolous claims
• Must refrain from ex parte (without the other party being repre-
sented) communications with the judge
• Must not illegally influence the judge or jury
• Must not be disruptive in court

In criminal cases, the prosecutor’s primary duty is not to convict, but

to promote justice. Accordingly, the prosecutor has a duty not to prosecute
unless probable cause exists and to disclose to the defense attorney any
evidence that is favorable to the defendant. The prosecutor also has a duty
not to seek waivers of rights from the accused who are not represented by
counsel.
An attorney’s duties to third parties include the duty of fairness to
opposing party and counsel; not to conceal or destroy evidence; not to
248 Law and Society: An Introduction

encourage a witness to be absent or uncooperative; not to make frivolous

discovery requests or fail to comply with reasonable discovery requests; and
to respect the rights of third parties. In addition, the attorney is restricted
from communicating with another attorney’s client without consent or
legal authority.

A DILEMMA
You are a criminal attorney. Your client, Robert Garrow, is being tried for
murder.
Garrow was an American serial killer who was active in New York
in the early 1970s. He was born in upstate New York and grew up in a
poor family of farmers. Garrow later said that his parents were severe,
violent disciplinarians who regularly physically abused their children
with whatever was handy, even bricks. At the age of 15, he was sent
to a reform school. He joined the Air Force upon his release, but was
court-martialed a year later for stealing money from a superior officer
and spent 6 months in a military prison in Florida. He had a long
history of sexual dysfunction and committed several acts of bestial-
ity with the farm animals he worked with throughout childhood and
adolescence.
During the trial on the murder charge, there is a statewide hunt for
three missing teenage girls. While preparing for this murder trial, your
client tells you that he murdered the girls and informs you where he
buried the bodies. Assume that the information has nothing to do with
the murder trial in which you are defending him and that the statement
was made to you after you had advised him that his conversations with
you were protected by the rules of confidentiality.
Do you report this information to the police?
The attorney informed the police where the bodies were buried, but
did not inform the police how he obtained that information. However,
there was evidence contained on the bodies that allowed the police to
identify the defendant as the offender. The attorney was sanctioned by
the state bar association for violating the rule of confidentiality.
Do you agree that the attorney should have been sanctioned for violating
the rule of confidentiality?
What purposes does it serve society to uphold the rule in such cases?

Note: For interesting discussions on this case, see: Comment (1975).

Legal ethics: Confidentiality and the case of Robert Garrow’s
lawyers. Buffalo Law Review, 25, 211–215.
Lawyers 249

Conflicts of Interest
Joe and Mark are apprehended shortly after robbing the First National Bank
of Chicago. They are arrested and charged with robbery of a federally insured
bank. Both want to hire James Sharp as their attorney. Since both are charged
with the same crime and the attorney is a long-time friend of both, is there
any conflict of interest if Attorney Sharp defends both? Yes. Sharp cannot
represent one client if his representation would be directly adverse to one of
his other clients. For example, if Joe were to offer to plead guilty and present
evidence against Mark in return for a lighter sentence, Sharp’s representa-
tion of Joe would be adverse to the rights of Mark. Mark, on the other hand,
may want to claim that Joe was the ringleader and talked Mark into robbing
the bank. Accordingly, in most states in similar situations, Sharp would be
allowed to represent only one of the defendants. In some situations, he may
be allowed to represent both if both agree and the court approves. This may
be accomplished only where the attorney reasonably believes that dual repre-
sentation would not be adverse to either client.
Attorneys within a law firm are regarded as a single unit; thus if one
member of a law firm represents one of the defendants, the court would
consider that all members of the firm are representing that defendant. Large
law firms go to great lengths to prevent any possible conflicts of interest. In
most law firms, before an attorney may take a new client, there must be a
check of potential conflicts. As a general rule, attorneys shall not oppose
former clients in substantially related matters without the consent of the
former client.

Trial Publicity
Attorneys are prohibited from making out-of-court statements that a reason-
able person would expect to become public and where there is a substantial
likelihood that the statements could materially prejudice the trial proceed-
ings. Attorneys may make the following out-of-court statements:

• Statement regarding the general nature of claim or defense

• Information in a public record
• General scope of an investigation
• Request for public assistance
• Warning of danger if likelihood of harm
• Identity of defendant
• Rebuttal statement to comments made by others to mitigate prejudice
250 Law and Society: An Introduction

Prohibited Conduct by Attorneys

Attorneys are generally prohibited from entering into business transactions
with their clients unless the terms are reasonable and fair, are fully disclosed
in writing, the client is given an opportunity to seek advice of independent
counsel, and the client consents in writing.
An attorney must not use any information obtained from a client to the
disadvantage of the client, except in those cases where the client is suing the
attorney. Lawyers are prohibited from preparing wills or trusts that contain
gifts to the attorney. Attorneys should not acquire proprietary interest in the
subject matter of litigation except for contingency fees or liens to secure the
repayment of expenses.
Contingency fees are prohibited in criminal and domestic relations
(divorce) cases. Contingency fees are fees accepted by an attorney that are
based on a percentage of the recovery in the case. For example, if an attorney
accepts a case with a 35% contingency fee, this means that if the attorney
wins or settles the matter for the client and the client gets a cash award, the
attorney will receive 35% of the award. In most states, expenses are deducted
before the attorney calculates his or her fees. If the attorney loses a case with
a contingency fee agreement, the attorney does not get paid. Most states
require that all contingency fee agreements be in writing.

Future of the Law

Law is a creature of society. Society is rapidly changing, but it shows no signs

of going back to the simple habits of the old days. Nor does anybody really
expect a Utopia in which government would disappear. Law, legal process, and
the legal system are facts of life in the United States. They have a central place,
and this is likely to continue. Perhaps the role of law will grow, perhaps not,
but it is not about to shrivel or go away.21

Many individuals contend that we are too involved with law, litigation,
and the legal process. As noted by Friedman, law is a fact of life. Even the
simple act of going to college presupposes a vast superstructure of law. Law
touches every aspect of our lives. According to Friedman, as long as there is
government regulation, there will be a vast superstructure of law, and efforts
to cut government involvement have not gotten very far. Conservative gov-
ernments can only hope to privatize a bit, deregulate a bit, and send some
tasks back to the state; for the rest, they can only hope to keep the state from
swelling until it bursts like a giant balloon.
One sphere of growth that has attracted much attention is in the area of
litigation. Many will contend that we are experiencing a litigation explosion
Lawyers 251

in the United States. For example, judicial review is more common now that
it was in the past. Many people believe that the 2000 presidential election was
decided not by voters, but by the judicial system. If courts continue to moni-
tor, revise, and oversee what other governmental agencies do, then the courts
are encouraging individuals and social groups to bring their demands into
courts. Presently, we use litigation to stop the building of dams and bridges
and, now, to decide a presidential election. This is a trend that is growing and
appears to be unstoppable.
Litigation is not increasing in all areas. Lawsuits in some areas are in fact
decreasing. Many scholars contend that the courts are handling fewer cases
involving ordinary contract disputes, landlord and tenant disputes, debt col-
lection, and will contests. These staples of the early 20th century legal system
have declined due to the expense of litigation and the growth of alternative
dispute resolution forums. Laura Nader, in her book on alternatives to litiga-
tion, contends that the courts are neglecting “issues that affect the quality of
everyday life.” According to her, the courts are too involved in big business
litigation and fail to look at the issues that would increase the quality of our
everyday life.22
Courts now intervene in areas and subjects that were once very private.
For example, juveniles are now suing their parents. One 12-year-old boy tried
to divorce his parents in Florida. While we wonder why the courts need to
meddle in private family affairs, there are other areas in which the courts
are needed. For example, despite all the talking about downsizing the gov-
ernments, they continue to grow. The more the government does, the more
the need to control it. For the ordinary citizen, there needs to be a method
to review government actions or to get the government to listen. In limited
situations, the courts are available. As noted by Friedman: “Courts in the
United States, for all their faults, give people at least some realistic way to
right wrongs done by the government and by private centers of power.”23
Nevertheless, regular courts are often too expensive and formal for the small
cases and for day-by-day disputes. Alternative dispute resolution is a grow-
ing institution and will probably be used more for those disputes that are not
right for formal court proceedings.

Summary

• It is often stated that Americans have a love–hate relationship

with lawyers.
• Law is considered as one of the three archetypical “learned” profes-
sions, with the Church and medicine being the other two.
• Despite the fact that it is so generally studied, it appears that the American
people have many misconceptions regarding the legal profession.
252 Law and Society: An Introduction

• Oliver Wendell Holmes once stated that law embodies the story of a
nation’s development through many centuries and cannot be dealt
with as if it contained only the axioms and corollaries of a book of
mathematics. Holmes also stated that in order to know what the law
is, we must know what it has been and what it tends to become.
• The origins of the legal profession have been traced back to the
Roman Empire. Roman law allowed individuals to present cases
for others. At first, the individuals were trained in rhetoric rather
than in the law. Later, Roman “jurists” became popular. Jurists were
individuals who were knowledgeable about the law, and they advised
individuals about the law. By the time of the Imperial Period, the
complexity of Roman law made the legal profession indispensable.
• Originally, the word attorney implied an agent. During the Middle
Ages, attorneys had three basic functions—agent, spokesperson,
and consultant.
• Looking at the history of the legal system, it is clear that our legal system
has developed into a highly professional status along with medicine.
• Many individuals contend that, in the United States, we have too
many lawyers. It is often said that we are the most litigious society
in history.
• Our present-day legal system was not developed overnight. It is the
result of centuries of evolution.
• Whereas the legal profession in England makes clear distinctions
between those attorneys who are trial lawyers (barristers) and those
who are not (solicitors), our legal system lacks these formal distinc-
tions. For the most part, any attorney in the United States may be
either a trial or nontrial attorney.
• In actual practice, most attorneys tend to be generalists. Lawyers who
are admitted to practice in one state are not permitted to practice in
other states without special permission of the courts of the second state.
• To practice in a federal court, attorneys must generally be admitted
to practice in the state courts and then be admitted to practice in the
specific federal court.
• The legal profession in colonial America was transported from
England, but with greater decentralization than existed in England.
Prior to the Revolutionary War, the practice of law in colonial
America was monopolized by the upper-class merchants and planta-
tion owners’ sons.
• The power of admission to the practice of law was delegated by the
colonial legislators to the courts. The courts then looked to the local
bar associations for recommending attorneys for admission. The bar
associations became powerful political elites that controlled admis-
sion to the legal profession.
Lawyers 253

• In the 18th and 19th centuries, neither a college education nor for-
mal legal training was absolutely required for admission to practice.
Successful passing of the bar examination was the governing factor.
Often the bar examination was oral.
• The principal method of preparing for the practice of law was by
working in the law office of another attorney and “reading” the law.
Even today in some states, an individual may qualify to take the bar
examination by “reading” the law.
• Most lawyers in the United States today have at least a baccalaureate
degree in addition to 3 years of law school. Now, our legal education
is centered on the universities. The normal educational model for
U.S. law schools is for the students to read actual court cases, extract
general principles, and then submit to classroom interrogation by
law professors.
• Lectures are rare in law school, with most professors using the
Socratic method, wherein a continuous series of challenging ques-
tions is put to the students. The students are expected to apply the
reasoning and rules of law that they have abstracted from assigned
cases to hypothetical scenarios. This procedure is designed to imitate
the legal reasoning process of judges.
• The Socratic method allows students to think in terms of opposing
parties and to consider only those facts that are relevant to the guid-
ing principles of the case. This results in an impersonal analysis of
situations and obscures the reality that real cases involve real people
with real conflicts.
• Law is a big business in the United States. Legal work accounts
for approximately 2% of the gross national product. About 75% of
the attorneys in active practice today are engaged in private prac-
tice. Roughly 12% of the attorneys are employed by federal, state,
and local government. The remaining lawyers are either in private
employment as salaried employees of private companies or are in the
small group that comprises the judiciary.
• One of the major organizational goals of trial courts is the efficient
disposition of cases assigned to that court. The term courthouse work
group is used to describe the judges and attorneys who regularly work
in a court. The judges and counsel are graduates of the law school
system discussed previously. These individuals have similar educa-
tional backgrounds and work closely with each other, and most have
similar career goals. Harmony within the court systems is promoted
by discretion and negotiation of the courthouse work group.
• Prior to 1977, almost all states restricted lawyers from advertising.
In Bates v. State Bar of Arizona, the U.S. Supreme Court held that
attorneys have First Amendment protection, which includes the right
254 Law and Society: An Introduction

to advertise. The Supreme Court held that advertising legal services

is not inherently misleading, and while advertising does not pro-
vide a complete foundation on which to select an attorney, to deny
the consumer one common vehicle (advertising) to obtain relevant
information needed for an informed decision was a violation of the
First Amendment.
• Generally, lawyers are prohibited from directly contacting individu-
als and soliciting business. They may, however, send general letters
regarding legal rights to victims of crimes or individuals injured in
automobile accidents.
• As a general rule, attorneys may not advertise that they are special-
ists in certain fields unless they have been certified as such by the
state bar association. Attorneys may, however, advertise that they
handle only domestic cases, etc. They may also advertise that their
practice of law is limited to the fields of criminal law, labor law, etc.
In addition, they may not imply connections with government agen-
cies or trade associations.
• The American Bar Association has established the ABA Model Rules
of Professional Conduct. The rules were drafted to encourage states
to adopt them. Most states have, in one form or another, adopted
most of the principles and concepts set forth in the model rules.
• The attorney must exercise candor toward the court and must not
make false statements or material facts or misrepresent the law.
• In criminal cases, the prosecutor’s primary duty is not to convict,
but to promote justice. Accordingly, the prosecutor has a duty not to
prosecute unless probable cause exists and to disclose to the defense
attorney any evidence that is favorable to the defendant.
• Law is a creature of society. Many individuals contend that we are
too involved with law, litigation, and the legal process.

Questions in Review
1. What is the meaning of the statement “law is a jealous mistress?”
2. Explain why Holmes stated that the story of the development of our
legal system may not be explained by axioms and corollaries?
3. Describe the development of a profession as noted by Wilensky.
4. Do we have too many lawyers in the United States? Justify your
conclusions.
5. Explain the development of legal education.
6. How does the Socratic method work?
7. Why does Blumberg contend that the practice of law is a confidence
game?
Lawyers 255

8. Do you see any problems with the approach used by the automobile
insurance companies in Florida in 1995?
9. Why are many lawyers unhappy working in the legal profession?
10. Should attorneys be allowed to advertise? Justify your conclusions.

Endnotes
1. M.E. Katsh & W. Rose. (2000). The role of law. In Taking sides: Legal issues (9th
ed., p. xii). New York, NY: Dushkin/McGraw-Hill.
2. O.W. Holmes. (1881). The common law (p. 1). Boston, MA: Little, Brown.
3. H.L. Wilensky. (1964). The professionalism of everyone? American Journal of
Sociology, 70(2), 137–158.
4. J.V. Calvi & S. Coleman. (2000). American law and legal systems (4th ed., pp.
36–37). Englewood Cliffs, NJ: Prentice-Hall.
5. J.T. Noonan. (1976). Persons and masks of the law (p. xi). New York, NY: Farrar,
Straus & Giroux.
6. A.S. Blumberg. The practice of law as confidence game: Organizational coopta-
tion of a profession. Law & Society Review, 1(2), 15–40.
7. Lawyers Weekly USA. (1997). 97 LWUSA 241.
8. Lawyers Weekly USA. (1994). 94 LWUSA 45.
9. Lawyers Weekly USA. (1996). 96 LWUSA 2288.
10. J.V. Calvi & S. Coleman. (2000). American law and legal systems (4th ed., p. 37).
Englewood Cliffs, NJ: Prentice-Hall.
11. McDaniels v. Gile, 281 Cal. Rptr. 242 (1991).
12. Mayol v. Summers, 558 N.W. 2nd 1176 (1992).
13. Layton v. Pendleton, 864 S.W. 2nd 937 (Mo.App. 1993).
14. Murry v. Farmers Insurance Co., 796 P. 2nd 101 (1990).
15. 433 U.S. 350 (1977).
16. Lawyers Weekly USA. (1998, December 14). 98 LWUSA 1031.
17. Lawyers Weekly USA. (1998, November 30). 98 LWUSA 1013.
18. Lawyers Weekly USA. (1995). 95 LWUSA 1059.
19. M.M. Bowden. (2000, May 15). Even tasteless ads rarely violate ethical rules.
Lawyers Weekly USA, 2000 LWUSA 453.
20. Bar proposes rules to regulate new frontier. (1998, June 22). Texas Lawyer.
21. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 332). New
York, NY: Norton.
22. L. Nader. (1980). No access to law: Alternatives to the American judicial system
(p. 5). Waltham, MA: Academic Press.
23. L.M. Friedman. (1998). American law: An introduction (Rev. ed., p. 329). New
York, NY: Norton.
Private Life and the Law
10
Chapter Objectives

After completing this chapter, you should be able to

• Explain the relationship between your private life and the law
• Define the right to privacy
• Discuss your rights to privacy as protected by the Constitution
• Discuss the unwritten protections considered as constitutional
rights
• Explain how technology issues invade our right to privacy

Introduction

There is a relationship that exists between law, morality, and society. As

American society changes, so too has the moral content of law. Throughout
history, dominant groups have been able to slip in their views of what is right
into the legal code. The effect is a “born again Constitution” bearing different
interpretations of the supreme law of the land. The extent of change in moral
beliefs and practices more or less necessitates whether legal scholars will
decide the public debate of the times. The higher the issue is on the agenda of
public debate, the more likely is a legal decision.
For example, the First Amendment right of freedom of speech is
designed to protect the expression or publication of one’s opinions. This
constitutional right is so prized and cherished in American society that the
Supreme Court has protected it time and time again. But what of pornog-
raphy and the present ability of Internet users to send obscene pictures to
millions of people on the computer—are those expressions protected under
the right of privacy?

257
258 Law and Society: An Introduction

Right to Privacy

The right to be left alone—the most comprehensive of rights, and the right
most valued by civilized men. To protect that right, every unjustifiable
intrusion by the government upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the 4th Amendment.
Justice Louis Brandeis in Olmstead v. United States (1928)1

The right to privacy is the right to be left alone. While there is no right to
privacy explicitly guaranteed in the Constitution, a number of U.S. Supreme
Court cases have established law in society that affords protection against
many types of intrusions by the government into our private matters and
personal lives. In Katz v. United States, for example, the Supreme Court ruled
that the Fourth Amendment protected individuals’ reasonable expectations
of privacy and not just property interests.2
Interestingly, 21st-century technology has brought forth a number of
key Fourth Amendment issues regarding privacy, especially involving pri-
vate communications, cell phones, and GPS tracking systems. In Griswold
v. Connecticut, the Court recognized constitutionally protected privacy
under the First, Third, Fourth, Fifth, and Ninth Amendments to the U.S.
Constitution. A “penumbra” theory for establishing a constitutional right of
privacy was reasoned out by Justice Douglas, who delivered the majority’s
opinion in Griswold:

[Prior] cases suggest that specific guarantees in the Bill of Rights have pen-
umbras formed by emanations from those guarantees that help give them
life and substance.… Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the quartering
of soldiers “in any house” in time of peace without the consent of the owner
is another facet of that privacy. The Fourth Amendment explicitly affirms
the “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” The Fifth Amendment
in its Self-Incrimination clause enables the citizen to create a zone of pri-
vacy which government may not force him to surrender to his detriment.
The Ninth Amendment provides: “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by
the people.”3

The Supreme Court extended the right to privacy in Roe v. Wade by iden-
tifying the Fourteenth Amendment as the basis for the right’s application.
And, in Whalen v. Roe, the Court made a comprehensive effort to define
the right to privacy, embracing both (a) an “individual interest in avoiding
Private Life and the Law 259

disclosure of personal matters” and (b) an “interest in independence in mak-

ing certain kinds of important decisions.”4
Privacy is how we as a society balance the interests of the free flow of
information with the rights of individuals. This balance is very delicate and
often difficult to maintain. Consequently, various statutes and laws that
define privacy protection have been developed.

IN ADDITION TO OUR WRITTEN FEDERAL

CONSTITUTION, DOES THE UNITED STATES
HAVE AN UNWRITTEN CONSTITUTION?
Yale University professor and noted constitutional scholar Akhil Amar
contends that in addition to the written federal constitution, which
consists of 8,000+ words, the United States has an unwritten consti-
tution. Amar uses the “right to privacy” concept as one of his argu-
ments to support the contention that there is an unwritten constitution.
For example, the First Amendment to the U.S. Constitution only pre-
vents the U.S. Congress from abridging certain freedoms by the phrase
“Congress shall not.…” The amendment does not expressly restrict state
governments from taking such action. He points out that certain key
phrases commonly used in discussions on constitutional rights such as
the rule of law, right of privacy, separation of powers, and checks and
balances are absent from our written constitution.
According to Amar, the Ninth Amendment of the U.S. Constitution
recognizes the existence of an unwritten constitution. That amendment
provides:
The enumeration in the Constitution, of certain rights, shall not be con-
strued to deny or disparage others retained by the people.

There are certain rights enumerated in the written constitution. But,

as Amar points out, the Ninth Amendment recognizes that there are
other rights retained by the people including such rights as the right to
privacy.5

Privacy Act of 1974

The Privacy Act of 1974 symbolizes congressional affirmation of individu-

als’ fundamental right of privacy and embodies the principal privacy safe-
guards for personal information by safeguarding against the invasion of
privacy through the misuse of records by federal agencies. In general, the
act allows a citizen to discover how records are collected, maintained, used,
260 Law and Society: An Introduction

and disseminated by the U.S. government. The act also permits them to
gain access to most personal information maintained by federal agencies
and to seek correction of any inaccurate, incomplete, untimely, or irrelevant
information.6
The Privacy Act applies to personal information maintained by agen-
cies in the executive branch of the federal government. The executive branch
includes cabinet departments, military departments, government corpora-
tions, government-controlled corporations, independent regulatory agen-
cies, and other establishments in the executive branch. The Privacy Act does
not generally apply to records maintained by state and local governments or
private companies or organizations.
The Privacy Act only grants rights to U.S. citizens and to aliens law-
fully admitted for permanent residence. As a result, a nonresident foreign
national cannot use the act’s provisions. However, a nonresident foreign
national may use the Freedom of Information Act (FOIA) to request records
about him- or herself.
The Privacy Act governs only records that are maintained in a “system of
records.” A “record” is defined as personal information about an individual
that is maintained by an agency. A record contains individually identifi-
able information, including but not limited to information about education,
financial transactions, medical history, criminal history, or employment his-
tory. A “system of records” is a group of records from which information
is retrieved by name, social security number, or other identifying symbols
assigned to an individual.
The Privacy Act also establishes five requirements that control the record
management of federal agencies:

• First, each agency must establish procedures allowing individuals to

see and copy records about themselves. An individual may also seek
to amend any information that is not accurate, relevant, timely, or
complete. The rights to inspect and to correct records are the most
important provisions of the Privacy Act.
• Second, each agency must publish notices describing all systems of
records. The notices include a complete description of personal data
record-keeping policies, practices, and systems. This requirement
prevents the maintenance of secret record systems.
• Third, each agency must make reasonable efforts to maintain accu-
rate, relevant, timely, and complete records about individuals.
• Fourth, the act establishes rules governing the use and disclosure
of personal information. Agencies are prohibited from maintaining
information about how individuals exercise rights guaranteed by the
First Amendment to the U.S. Constitution unless maintenance of the
information is specifically authorized by statute or by the individual
Private Life and the Law 261

or relates to an authorized law enforcement activity. The act speci-

fies that information collected for one purpose may not be used for
another purpose without notice to or the consent of the subject of the
record. The act also requires that each agency keep a record of some
disclosures of personal information.
• Fifth, the act provides legal remedies that permit an individual to
seek enforcement of the rights granted under the act. In addition,
federal employees who fail to comply with the act’s provisions may
be subjected to criminal penalties.

Freedom of Information Act

The Freedom of Information Act (FOIA) provides individuals with a right to
access records that are in the possession of the federal government.7 The gov-
ernment may withhold information only pursuant to the nine exemptions
and three exclusions contained in the act. The exemptions, which essentially
protect against the disclosure of information that could harm national secu-
rity interests, privacy of individuals, functioning of the government, and
similar important interests, are as follows:8

• Exemption 1: Classified documents

• Exemption 2: Internal personnel rules and practices
• Exemption 3: Information exempt under other laws
• Exemption 4: Confidential business information
• Exemption 5: Internal government communications
• Exemption 6: Personal privacy
• Exemption 7: Law enforcement
• Exemption 8: Financial institutions
• Exemption 9: Geological information

The initial FOIA exemption permits the withholding of properly clas-

sified documents. Information may be classified in the interest of national
defense or foreign policy. The FOIA provides that, if a document has been
properly classified under a presidential executive order, the document can be
withheld from disclosure. Classified documents may be requested under the
FOIA. An agency can review the document to determine if it still requires
protection. In addition, the executive order on security classification estab-
lishes a special procedure for requesting the declassification of documents.
The second FOIA exemption covers matters that are related solely to an
agency’s internal personnel rules and practices. As interpreted by the courts,
there are two separate classes of documents that are generally held to fall
within this exemption. First, information relating to personnel rules or inter-
nal agency practices is exempt if it is a trivial administrative matter of no
262 Law and Society: An Introduction

genuine public interest. A rule governing lunch hours for agency employees
is an example. Second, an internal administrative manual can be exempt if
disclosure would risk circumvention of law or agency regulations. In order
to fall into this category, the material will normally have to regulate internal
agency conduct rather than public behavior.
The third exemption incorporates into the FOIA other laws that restrict
the availability of information. To qualify under this exemption, a statute
must require that matters be withheld from the public in such a manner as
to leave no discretion to the agency. Alternatively, the statute must establish
particular criteria for withholding or refer to particular types of matters to be
withheld. One example of a qualifying statute is the provision of the tax code
prohibiting the public disclosure of tax returns and tax return information
The fourth exemption protects from public disclosure two types of infor-
mation: trade secrets and confidential business information. A trade secret
is a commercially valuable plan, formula, process, or device. This is a narrow
category of information. An example of a trade secret is the recipe for a com-
mercial food product. The second type of protected data is commercial or
financial information obtained from a person where such data is privileged
or confidential. The courts have held that data qualifies for withholding if
disclosure by the government would be likely to harm the competitive posi-
tion of the person who submitted the information. Detailed information on a
company’s marketing plans, profits, or costs can qualify as confidential busi-
ness information. Information may also be withheld if disclosure would be
likely to impair the government’s ability to obtain similar information in the
future. Only information obtained from a person other than a government
agency qualifies under the fourth exemption. A person can be an individual,
a partnership, or a corporation. Information that an agency created on its
own cannot normally be withheld under this exemption.
The FOIA’s fifth exemption applies to internal government documents.
An example is a letter from one government department to another about a
joint decision that has not yet been made. The purpose of this exemption is to
safeguard the deliberative policy-making process of government. The exemp-
tion encourages frank discussion of policy matters between agency officials
by allowing supporting documents to be withheld from public disclosure.
The exemption also protects against premature disclosure of policies before
final adoption. While the policy behind the fifth exemption is well accepted,
the application of the exemption is complicated. The fifth exemption may be
the most difficult FOIA exemption to understand and apply. For example,
the exemption protects the policy-making process, but it does not protect
purely factual information related to the policy process. Factual information
must be disclosed unless it is inextricably intertwined with protected infor-
mation about an agency decision. Protection for the decision-making process
is appropriate only for the period while decisions are being made. Thus, the
Private Life and the Law 263

fifth exemption has been held to distinguish between documents that are
predecisional, and therefore may be protected, and those that are postdeci-
sional and therefore not subject to protection. Once a policy is adopted, the
public has a greater interest in knowing the basis for the decision. The exemp-
tion also incorporates some of the privileges that apply in litigation involving
the government. For example, papers prepared by the government’s lawyers
can be withheld in the same way that papers prepared by private lawyers for
clients are not available through discovery in civil litigation.
The sixth exemption covers personnel, medical, and similar files, the dis-
closure of which would constitute a clearly unwarranted invasion of personal
privacy. This exemption protects the privacy interests of individuals by allow-
ing an agency to withhold personal data kept in government files. Only indi-
viduals have privacy interests. Corporations and other legal persons have no
privacy rights under the sixth exemption. The exemption requires agencies
to strike a balance between an individual’s privacy interest and the public’s
right to know. However, since only a clearly unwarranted invasion of privacy
is a basis for withholding, there is a perceptible tilt in favor of disclosure in
the exemption. Nevertheless, the sixth exemption makes it harder to obtain
information about another individual without the consent of that individual.
The seventh exemption allows agencies to withhold law enforcement
records in order to protect the law enforcement process from interfer-
ence. While the exemption was amended in 1986, it still retains six spe-
cific subexemptions:

1. Allows the withholding of a law enforcement record that could rea-

sonably be expected to interfere with enforcement proceedings. This
exemption protects an active law enforcement investigation from
interference through premature disclosure.
2. Allows the withholding of information that would deprive a person
of a right to a fair trial or an impartial adjudication
3. Recognizes that individuals have a privacy interest in information
maintained in law enforcement files. If the disclosure of information
could reasonably be expected to constitute an unwarranted invasion
of personal privacy, the information is exempt from disclosure
4. Protects the identity of confidential sources. Information that could
reasonably be expected to reveal the identity of a confidential source
is exempt. A confidential source can include a state, local, or foreign
agency or authority, or a private institution that furnished infor-
mation on a confidential basis. In addition, the exemption protects
information furnished by a confidential source if the data was com-
piled by a criminal law enforcement authority during a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation.
264 Law and Society: An Introduction

5. Protects from disclosure information that would reveal techniques

and procedures for law enforcement investigations or prosecutions
or that would disclose guidelines for law enforcement investigations
or prosecutions if disclosure of the information could reasonably be
expected to risk circumvention of the law.
6. Protects law enforcement information that could reasonably be
expected to endanger the life or physical safety of any individual.

The eighth exemption protects information that is contained in or related

to examination, operating, or condition reports prepared by or for a bank
supervisory agency such as the Federal Deposit Insurance Corporation, the
Federal Reserve, or similar agencies.
The ninth FOIA exemption covers geological and geophysical informa-
tion, data, and maps about wells. This exemption is rarely used.

The Right of Publicity

The right of publicity prevents the unauthorized commercial use of an indi-
vidual name, likeness, or other recognizable aspects of one’s persona. It gives
a person the exclusive right to license the use of his or her identity for com-
mercial promotion. In the United States, state statutory law largely protects
the right of publicity, but only about half the states have explicitly recognized
a right of publicity. Of these, many name-protection provisions are part of
the right of privacy. In other states, the right of publicity is protected through
the law of unfair competition. Tort actions for misappropriation, unlawful
endorsement, or unlawful production by the individual, help to protect the
right of publicity. Moreover, if a person can establish an aspect of his or her
identity as a trademark, federal law may be employed to provide protection.
Lastly, the Lanham Act9 can also provide protection where a person’s identity
is used to falsely advertise a product. The Lanham Act defines the statutory
and common law boundaries to trademarks and service marks. Trademarks
are words or symbols used in the advertising of goods and services. The
Lanham Act defines the scope of a trademark, the process by which a fed-
eral registration can be obtained from the Patent and Trademark Office for a
trademark, and penalties for trademark infringement. The law authorizes a
trademark owner to file a lawsuit to

• Prevent others from using it in a context where it might confuse

consumers
• Recover money damages from someone who used the mark knowing
that it was already owned by someone else
Private Life and the Law 265

The Federal Electronic Communications Privacy Act (ECPA)

In 1986, Congress approved and the president signed the Electronic
Communications Privacy Act (ECPA), which establishes the provisions for
access, use, disclosure, interception, and privacy protections of wire and
electronic communications. Wire communication is defined to include

any aural transfer made in whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or other like con-
nection between the point of origin and the point of reception (including the
use of such connection in a switching station).10

Electronic communications is defined as

any transfer of signs, signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio, electromagnetic, photo
electronic or photo optical system that affects interstate or foreign commerce.11

In addition to prohibiting unlawful access and certain disclosures of communi-

cation contents, the ECPA prevents government entities from requiring disclo-
sure of electronic communications from a provider without proper procedure.
The ECPA prohibits unauthorized accessing of electronically stored
email. Specifically, subsection 2701(a) prohibits an entity from obtaining
access to, altering, or preventing access to an electronic communication
while it is in storage by either (a) intentionally accessing, without authoriza-
tion, a facility through which electronic communication service is provided
or (b) exceeding its authorization in accessing such a facility.
Section 2701 contains three exceptions to the general prohibition:

• Subsection (c)(1) excepts conduct authorized by the provider of

the service.
• Subsection (c)(2) exempts conduct authorized by the sender or recip-
ient of the communication.
• Subsection (c)(3) addresses conduct authorized under certain statu-
tory provisions that allow law enforcement authorities to access
communications pursuant to process requirements.

Computer Fraud and Abuse Act

In the 1980s, as computers became increasingly central to the conduct of
business, computer crimes began to grab the attention of lawmakers. As a
result, the Computer Fraud and Abuse Act of 1986 was signed into law in
order to clarify definitions of criminal fraud and abuse for federal computer
crimes and to remove the legal ambiguities and obstacles to prosecuting
266 Law and Society: An Introduction

these crimes. The act established two new felony offenses for the unauthor-
ized access of “federal interest” computers. One of the felony offenses was
established to address the unauthorized access of a federal-interest computer
with the intention to commit fraudulent theft. The other felony was estab-
lished to address “malicious damage,” which involves altering information
in, or preventing the use of, a federal-interest computer. A malicious damage
violation would have to result in a loss to the victim of $1,000 or more, except
in cases involving the alteration of medical records. The act also established
as a federal misdemeanor trafficking in computer passwords with the intent
to commit fraud that affects interstate commerce. This provision was meant
to cover the creation, maintenance, and use of “pirate bulletin boards,” where
confidential computer passwords are revealed. The legislation applied to any-
one who

knowingly and with the intent to defraud, traffics, transfers, or otherwise dis-
poses of, to another, or obtains control of, with intent to transfer or dispose of
in any password through which a computer may be accessed without authori-
zation, if such trafficking affects interstate or foreign commerce or such com-
puter is used by or for the Government of the United States.12

THE INTERNET WORM

Robert T. Morris was a first-year graduate student in Cornell University’s
computer science Ph.D. program. Through undergraduate work at
Harvard and in various jobs, he had acquired significant computer
experience and expertise. When Morris entered Cornell, he was given
an account on the computer at the Computer Science Division. This
account gave him explicit authorization to use computers at Cornell.
Morris engaged in various discussions with fellow graduate students
about the security of computer networks and his ability to penetrate
them.
Morris began work on a computer program, later known as the
Internet worm or virus. The goal of this program was to demonstrate
the inadequacies of current security measures on computer networks
by exploiting the security defects that Morris had discovered. The tactic
he selected was to release of a worm into network computers. Morris
designed the program to spread across a national network of comput-
ers after being inserted at one computer location connected to the net-
work. Morris released the worm into the Internet, which is a group of
national networks that connect university, governmental, and military
computers around the country. The network permits communication
and transfer of information between computers on the network.
Private Life and the Law 267

Morris sought to program the Internet worm to spread widely

without drawing attention to it. The worm was supposed to occupy
little computer operation time and thus not interfere with normal use
of the computers. Morris programmed the worm to make it difficult
to detect and read, so that other programmers would not be able to
kill the worm easily. Morris also wanted to ensure that the worm did
not copy itself onto a computer that already had a copy. Multiple cop-
ies of the worm on a computer would make the worm easier to detect
and would bog down the system and ultimately cause the computer
to crash. Therefore, Morris designed the worm to “ask” each com-
puter whether it already had a copy of the worm. If it responded “no,”
then the worm would copy onto the computer; if it responded “yes,”
the worm would not duplicate. However, Morris was concerned that
other programmers could kill the worm by programming their own
computers to falsely respond “yes” to the question. To circumvent this
protection, Morris programmed the worm to duplicate itself every
seventh time it received a “yes” response. As it turned out, Morris
underestimated the number of times a computer would be asked the
question, and his one-out-of-seven ratio resulted in far more copying
than he had anticipated. The worm was also designed so that it would
be killed when a computer was shut down, an event that typically
occurs once every week or two. This would have prevented the worm
from accumulating on one computer, had Morris correctly estimated
the likely rate of reinfection.
Morris identified four ways in which the worm could break into
computers on the network:

1. Through a “hole” or “bug” (an error) in SEND MAIL, a com-

puter program that transfers and receives electronic mail on a
computer
2. Through a bug in the “finger demon” program, a program that
permits a person to obtain limited information about the users of
another computer
3. Through the “trusted hosts” feature, which permits a user with
certain privileges on one computer to have equivalent privi-
leges on another computer without using a password
4. Through a program of password guessing, whereby various
combinations of letters are tried out in rapid sequence in the
hope that one will be an authorized user’s password, which is
entered to permit whatever level of activity that user is autho-
rized to perform.
268 Law and Society: An Introduction

Morris later released the worm from a computer at the Massachusetts

Institute of Technology. MIT was selected to disguise the fact that
the worm came from Morris at Cornell. Morris soon discovered that
the worm was replicating and reinfecting machines at a much faster
rate than he had anticipated. Ultimately, many machines at locations
around the country either crashed or became catatonic. When Morris
realized what was happening, he contacted a friend at Harvard to dis-
cuss a solution. Eventually, they sent an anonymous message from
Harvard over the network, instructing programmers how to kill the
worm and prevent reinfection. However, because the network route
was clogged, this message did not get through until it was too late.
Computers were affected at numerous installations, including leading
universities, military sites, and medical research facilities. The esti-
mated cost of dealing with the worm at each installation ranged from
$200 to more than $53,000. Morris was found guilty, following a jury
trial, of violating 18 U.S.C._1030(a)(5)(A). He was sentenced to 3 years
of probation, 400 hours of community service, a fine of $10,050, and
the costs of his supervision.

Source: 928 F.2d 504 UNITED STATES of America, Appellee, v.

Robert Tappan MORRIS, Defendant-Appellant. No. 774, Docket
90-1336. United States Court of Appeals, Second Circuit. Argued
Dec. 4, 1990. Decided March 7, 1991.

TECHNOLOGIES THAT ASSIST INTERNET

USERS TO PROTECT THEIR PRIVACY
Encryption: Encryption is a method of scrambling email mes-
sages so that they are gibberish to anyone who does not know
how to unscramble them. The privacy advantage of encryption
is that anything encrypted is virtually inaccessible to anyone
other than the designated recipient. Thus, private information
may be encrypted and then transmitted, stored, or distributed
without fear that outsiders will scrutinize it. There are various
encryption programs, anonymous servers, and memory-pro-
tection software applications available on the Internet.
Anonymous remailers: Because it is relatively easy to determine
the name and email address of anyone who posts messages
or sends email, the practice of using anonymous remailing
Private Life and the Law 269

programs has become more common. These programs receive

email, strip off all identifying information, and then forward
the mail to the appropriate address.
Memory-protection software: Software security programs are now
available to help prevent unauthorized access to files on the
home personal computer. For example, one program encrypts
every directory with a different password so that to access any
directory you must log in first. Thus, if an online service pro-
vider tries to read any private files, it would be denied access.

STATE AND LOCAL LAW ENFORCEMENT

NEEDS TO COMBAT ELECTRONIC CRIME
Former U.S. Attorney General Janet Reno stated,
Whether it [technology] benefits us or injures us depends almost
entirely on the fingers on the keyboard. So while the Information Age
holds great promise, it falls in part upon law enforcement to ensure that
users of networks do not become victims of New Age crime.

The rapid proliferation of computer systems, telecommunications net-

works, and other related technologies—upon which virtually everyone
relies—presents concomitant widespread vulnerabilities. Increasingly,
criminals are abandoning their guns for sophisticated computer-
assisted weapons. Recent acts of electronic crime in the United States,
such as the $15-million white-collar case dubbed “Operation Derailed”
in Atlanta, Georgia, demonstrate the need for increased vigilance by
law enforcement. The highly publicized Melissa virus and Solar Sunrise
cases further exemplify how reliance on the Internet and electronic cor-
respondence has subsequently increased vulnerability to cybercrime.
The statistics and losses remain staggering, and law enforcement
agencies must be able to detect, investigate, and prosecute these
cases. A recent report on cybercrime by the Center for Strategic and
International Studies (CSIS) says,
Almost all Fortune 500 corporations have been penetrated electroni-
cally by cybercriminals. The Federal Bureau of Investigation (FBI) esti-
mates that electronic crimes are running about $10 billion a year but
only 17 percent of the companies who were victimized reported these
losses to law enforcement agencies.
270 Law and Society: An Introduction

In addition, a survey conducted by the Computer Security Institute

(CSI) and the FBI of 521 financial institutions, universities, government
agencies, and corporations found that 62% reported intrusions.
Of particular concern is the gap between training and technologies
available to and used by law enforcement—especially state and local
agencies—and the advanced technologies used by persons and groups
committing electronic crimes. The National Institute of Justice (NIJ)
funded a one-year study to identify, document, and respond to short-
falls in state and local law enforcement capabilities and resources for
addressing electronic crime. This study built upon a report by the
National Cybercrime Training Partnership (NCTP) that sought input
from 35 police chiefs across the nation about the status of electronic
crime and what training and technical assistance would be of greatest
value to them.
Methodology
NIJ designated a management team to oversee the project’s day-to-day
operations. The team consisted of representatives from the TriData
Corporation, the U.S. Tennessee Valley Authority Police, the U.S. Navy
Space and Naval Warfare Systems Command, and the U.S. Department
of Justice (DOJ). The team held a kickoff meeting to develop the assess-
ment instrument and construct a strategy to implement the study.
The assessment instrument, or protocol, was designed by the project
management team and reviewed by subject-matter experts, investiga-
tors, prosecutors, and training specialists. Groups that contributed to
this effort included NCTP members, workshop facilitators, and other
subject-matter experts. The protocol was divided into the following
sections:

• State and local perspectives on electronic crime

• Profile of electronic crimes and investigation needs
• Legal issues and prosecution
• System vulnerability, critical infrastructure, and cyberterrorism
• Forensic evidence collection and analysis
• Training

The management team, with assistance from five regional offices of

NIJ’s National Law Enforcement and Corrections Technology Center
system and NCTP, selected potential participants. Care was taken to
ensure that law enforcement disciplines specifically relevant to elec-
tronic crime efforts (such as investigation, search, seizure, forensic
Private Life and the Law 271

examination of electronic media, and unit management) were repre-

sented. A total of 126 individuals representing 114 agencies participated
in this national inventory. They represented a variety of urban and
rural jurisdictions and a broad segment of state and local law enforce-
ment entities, including sheriffs’ departments, city police, state bureaus
of investigation, crime laboratories, transit police, and regulatory agen-
cies. The agencies and their representatives were selected on the basis
of their particular role in combating electronic crime. In addition,
researchers interviewed electronic crime experts to gain insight and
obtain advice on research design. Researchers also reviewed relevant
literature to derive additional background information on tactics, tech-
niques, and technologies currently available.
In the sessions, facilitators asked participants to identify the train-
ing, investigative support, and technology capabilities they needed
to combat electronic crimes. They were also asked to describe typi-
cal offenders and their targets, the most prevalent types of cases, and
recently observed trends in electronic crimes. After concluding the
workshops, members of the project management team analyzed, docu-
mented, and charted the inventory results. They identified significant
findings, arrived at general conclusions, and made specific recommen-
dations. During several iterations, the entire management team—along
with workshop facilitators and subject-matter experts—reviewed the
final report for completeness and accuracy.
Findings
The state and local law enforcement participants in this assessment
provided a firsthand perspective of the technology, policies, research,
training, and direct assistance required to combat electronic crime.
Participants related their experiences with electronic crime and their
concerns for the future, thereby providing a wealth of information for
government decision makers in both policy and program arenas. The
participants identified dozens of needs across the spectrum of elec-
tronic crime. These needs were documented, categorized, and evalu-
ated. Ten areas of concern, identified as the “critical ten,” dominated the
discussions along with commentary on what the future could hold for
addressing each need. In addition to these priority needs, two overarch-
ing issues emerged: Whether the need is high-end computer forensic
training or on-site task force development assistance, progress must be
accomplished (a) quickly and (b) in a centralized, coordinated manner.
Why the sense of urgency and the focus on coordination? The win-
dow of opportunity for law enforcement to keep pace with electronic
272 Law and Society: An Introduction

crime offenders (let alone get ahead of the problem) is quite short. The
capacity of technology used by these offenders is increasing geometri-
cally and at a pace that significantly challenges public-sector resources
at the state and local levels. The emphasis on a coordinated approach
is both practical and logical, as there is little time and few resources
available to address this increasingly significant problem. The greatest
impact will be generated if near-term solutions can be crafted and deliv-
ered through existing structures that have a broad reach and include
most key stakeholders.
The most important aspect of these challenges is the time sen-
sitivity. Unless a national effort is launched in the near term, elec-
tronic crimes will outpace the resources of most state and local law
enforcement agencies. There is a need to maximize investments in
new or expanded tools, training, on-site assistance, and research
with regard to electronic crime and cyberterrorism initiatives.
During the assessment study, workshop participants determined 10
top-priority needs. They are listed as follows, without reference to
priority or ranking:

1. Public awareness: A solid information and awareness program

is needed to educate the general public, elected and appointed
officials, the criminal justice community, and the private sec-
tor about the incidence and impact of electronic crimes. With
many cases being undetected or unreported, and with the
dearth of hard data on electronic crime trends, most individu-
als are unaware of the extent to which their financial status,
businesses, families, or privacy might be affected by electronic
crime. Neither are most people aware of how quickly the threat
is growing. A multifaceted information and awareness cam-
paign is needed to clearly document and publicize how elec-
tronic crimes affect society. Unless the public is made aware
of the shift in crime to the whole new arena of the Internet,
individuals will continue to be subject to a number of crimes,
including fraud, identity theft, child abuse, and denial of
services.
2. Data and reporting: More comprehensive data are needed to
establish a clearer picture of the extent and impact of electronic
crime and to monitor trends. In response to the Computer
Fraud and Abuse Act, the FBI amended its Uniform Crime
Reporting System to address electronic crime. The FBI placed a
question within its National Incident Based Reporting System
Private Life and the Law 273

to document if a criminal offender used a computer in the

commission of the crime. However, additional details about
the use of computers in crime are needed to fully measure the
incidence of electronic crime. Without more data, detailed
analysis, or a crime victimization study, it is difficult to track
regional or national trends in electronic crime. Hard data are
needed both to better understand the era of electronic crime
and to communicate it to budget and policy makers as well as
to citizens.
3. Uniform training and certification courses: Law enforcement
officers and forensic scientists need specific levels of training
and certification to correctly carry out their respective roles
when investigating electronic crimes, collecting and examin-
ing evidence, and providing courtroom testimony. This train-
ing should reflect state and local priorities. There is a need for
both entry-level and advanced training for law enforcement
officers and investigators, prosecutors and defense attorneys,
probation and parole officers, and judges. First-line officers who
secure the initial crime scenes need training on basic foren-
sic evidence recognition and collection techniques. National
guidelines should be developed and applied toward a certifica-
tion program that ensures uniform skill levels. Additionally,
prosecutors and judges need awareness training to stay abreast
of electronic crime’s impact and technology.
4. Management assistance for on-site electronic crime task forces:
State and local law enforcement agencies need immediate
assistance in developing computer investigation units, creating
regional computer forensics capabilities, organizing task forces,
and establishing programs with private industry. A majority of
the agencies represented in this study called for a county (or
regional) investigative task force approach to the technically
challenging and time-consuming job of investigating crimes
involving computers. Agencies are seeking hands-on assis-
tance from experts in electronic crime and in criminal task-
force development to enhance their ability to combat electronic
crime at all levels. Simply stated, investigative task forces are
extremely effective crime-fighting tools. This has been proven
with drug and arson task forces. Combining forces among
agencies makes it more affordable to acquire the high-tech
tools used in analyzing computer evidence and to coordinate
strategies and procedures to deal with electronic crime. Direct
274 Law and Society: An Introduction

assistance in forming electronic-crime task forces is urgently

needed for several reasons. Specially trained personnel and
dedicated forensic laboratory equipment are often required to
examine and retrieve evidence that is necessary for prosecu-
tion and contained in a computer’s hard drive. Electronic evi-
dence often implicates individuals from jurisdictions where
officials’ testimony and involvement in case proceedings must
be coordinated. Also, for many prosecutors, presenting high-
tech evidence in court is challenging, in terms of both ferreting
through highly technical terms and making them understand-
able for a jury.
5. Updated laws: Effective, uniform laws and regulations that
keep pace with electronic crime need to be promulgated and
applied at the federal and state levels. Over the past decade, use
of computers and the Internet has grown exponentially, with
individuals becoming more dependent on these technologies
on a daily basis. As computer use has blossomed, so too has
criminal involvement. Deterring and punishing these offend-
ers require a legal structure that will support early detection
and successful prosecutions. Examples of emerging trends
include the increased reliance of criminals and terrorists on
encryption technologies and obvious efforts to cloak the iden-
tity and location of offenders. Currently, there is no formal
legal mechanism to require that subpoenas generated in one
state be enforced in another. There is a practice of cooperation,
in which one state attorney general’s office voluntarily assists
another state authority in either serving an out-of-state sub-
poena or seeking an in-state court order to enforce the out-of-
state subpoena. However, the reliability and consistency of this
procedure are not uniform, and the ability to secure enforce-
ment of an out-of-state subpoena on a recalcitrant party is at
best questionable. Clearly, the laws defining computer offenses,
as well as the legal methods needed to properly investigate cur-
rent electronic crimes, have lagged behind technological and
social changes.
6. Cooperation with the high-tech industry: Crime solvers need
the industry’s full support and cooperation to control elec-
tronic crime. Industry support is needed to develop and
maintain trusted relationships and cooperative agreements
to help sponsor training, join task forces, and share equip-
ment for the examination of electronic evidence. These
Private Life and the Law 275

cooperative relationships can also encourage the report-

ing of electronic crime. Many technology firms have their
own information security units that, among other respon-
sibilities, detect and investigate electronic crime. Increased
cooperation between industry and government provides the
best opportunity to control electronic crime and protect the
nation’s critical infrastructure, which heavily relies upon
computer technology.
7. Special research and publications: Investigators, forensic
laboratory specialists, and prosecutors need a comprehen-
sive directory of electronic crime information, training, and
resources to help them combat electronic crime. The federal
government, state governments, colleges and universities,
trade associations, and private industry are all responding to
the need for diverse training in the field of electronic crime.
It is critical to communicate the availability of training and
professional seminars if these offerings are to be used to their
maximum advantage. Many investigators and prosecutors
are calling for a clearinghouse of online information and
technical guidance on methods, investigative technologies,
and research. Examples of specialized technologies include
the ability to detect and break encryption, image disks, and
index important information. State and local law enforce-
ment agencies also are asking for a clearinghouse of national
and state experts and resources. A who’s who of electronic
crime investigators, unit managers, prosecutors, labs, equip-
ment, expert witnesses, and so forth, would be a well-received
guidebook for many practitioners, who frequently note the
need for information on how to contact colleagues in other
communities. A training directory citing current sources
of electronic crime training offerings (print, online, and
CD-ROM versions) would be extremely valuable. One such
successful nationwide law enforcement network, which sup-
ports the dissemination of information on electronic crime, is
the FBI’s Law Enforcement Online (LEO). However, many law
enforcement officers need access to broader information than
is contained in LEO, including private-sector specialists and
technical data. A multilevel secure network could address
this need.
8. Management and awareness support: Senior law enforcement
managers and elected officials need to become better educated
276 Law and Society: An Introduction

about the growth and impact of electronic crime on their

communities and the need to establish and support dedicated
computer crime units. Many participants expressed concern
that senior managers do not fully understand the impact of
electronic crime and the level of expertise and tools needed
to investigate and prepare cases for successful prosecution. It
is often the case that managers do not realize the impact of
Internet and electronic crime in their jurisdiction or in soci-
ety in general. Senior management often lacks statistical data
on electronic crime, has insufficient funding and personnel
resources to create electronic crime units and, in some cases,
is unconvinced that electronic crime deserves much atten-
tion. The police chiefs and managers who are willing to sup-
port an investigative capability for electronic crime often
must do so at the expense of other units, or they assign dual
investigation responsibilities to personnel.
9. Investigative and forensic tools: There is a significant and imme-
diate need for up-to-date technological tools and equipment
for state and local law enforcement agencies to conduct elec-
tronic crime investigations. Most electronic crime cases can-
not be properly investigated and developed without essential
cybertools, software, and exposure to higher-end computer
technology. Computer systems, software, hardware, intru-
sion detection tools, decryption technology, and other foren-
sic equipment are expensive and beyond the budgets of most
local law enforcement agencies. Even when special equipment
is available, it is frequently out of date or incapable of being
used for forensic investigations. Insufficient data storage capac-
ity—to properly copy and analyze evidence—is also a common
problem.
10. Structuring a computer crime unit: As law enforcement agen-
cies begin to address electronic crime, they grapple with how
best to structure a computer or electronic crime unit that will
adequately investigate crimes involving computers and prop-
erly seize and thoroughly analyze electronic evidence. Where
does the electronic crime unit belong in the law enforcement
agency? Who should be a part of the unit? How should the
duties of investigation and the duties of forensic analysis be
separated, if at all? The experts are divided over these ques-
tions, especially the issue of whether it is better to maintain
computer forensics labs with specially trained investigators or
Private Life and the Law 277

with civilian systems technicians. DOJ would provide a very

valuable service to state and local law enforcement agencies if it
undertook research to capture the best thinking on the issues
confronted when police agencies begin to establish better elec-
tronic crime investigation capabilities. The experience of suc-
cessful existing units should be thoroughly documented along
with measures of impact related to different staffing configu-
rations. Results of such research should be widely distributed
and used as part of direct technical assistance to state and local
agencies.

Conclusion
State and local law enforcement entities will face ever-increasing chal-
lenges in investigating and prosecuting Internet and other high-tech
crimes. The Internet and high-tech telecommunications have created
an environment in which interpersonal and commercial relationships
will increasingly involve interstate and international transactions,
while state and local authorities remain bound by much narrower juris-
dictional limitations.
Critical infrastructure protection is an issue that federal, state,
and local law enforcement will have to contend with in the future.
Increasingly, critical national functions depend on information net-
works and are thus susceptible to disruption or security breaches by
unauthorized persons. Moreover, it is now possible to attack these
infrastructures with far less preparation and expense than in the past.
State and local law enforcement agencies are frequently the recipient of
threats against critical infrastructure components and, many times, are
the first responders to attacks on them.
Addressing these issues and the “critical ten” that emerged from this
research must become a high priority. An analysis comparing the key
priorities of state and local law enforcement to existing federal train-
ing and technology programs should be the next logical step. Both this
action and future study are essential if law enforcement is to realisti-
cally combat this crime.

Source: Hollis Stambaugh, David Beaupre, David J. Icove, Richard

Baker, Wayne Cassaday, & Wayne P. Williams. (2000). State and
local law enforcement needs to combat electronic crime. NCJ 183451.
Washington, DC: National Institute of Justice. Retrieved June 26,
2013, from http://www.nij.gov/pubs-sum/183451.htm
278 Law and Society: An Introduction

Abortion

In 1973, in the landmark case of Roe v. Wade, the U.S. Supreme Court ruled
that the Fourteenth Amendment to the Constitution provided a fundamen-
tal right for women to obtain abortions. The Court held that the “right to
privacy,” established by the Court’s precedents in the contraception cases of
the 1960s, assured the freedom of a person to abort unless the state had a
“compelling interest” in preventing the abortion.

EXCERPT FROM THE 1973 U.S. SUPREME

COURT CASE ROE V. WADE
Mr. Justice Blackmun delivered the opinion of the Court:
We forthwith acknowledge our awareness of the sensitive and emo-
tional nature of the abortion controversy, of the vigorous opposing
views, even among physicians, and of the deep and seemingly absolute
convictions that the subject inspires. One’s philosophy, one’s experi-
ences, one’s exposure to the raw edges of human existence, one’s reli-
gious training, one’s attitudes toward life and family and their values,
and the moral standards one establishes and seeks to observe, are all
likely to influence and to color one’s thinking and conclusions about
abortion.
In addition, population growth, pollution, poverty, and racial over-
tones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measure-
ment, free of emotion and of predilection. We seek earnestly to do this,
and, because we do, we have inquired into, and in this opinion place
some emphasis upon, medical and medical-legal history and what that
history reveals about man’s attitudes toward the abortion procedure
over the centuries.…
Jane Roe [an alias], a single woman who was residing in Dallas
County, Texas, instituted this federal action in March 1970 against the
District Attorney of the county. She sought a declaratory judgment that
the Texas criminal abortion statutes were unconstitutional on their
face, and an injunction restraining the defendant from enforcing the
statutes.
Roe alleged that she was unmarried and pregnant; that she wished
to terminate her pregnancy by an abortion “performed by a competent,
licensed physician, under safe, clinical conditions”; that she was unable to
get a “legal” abortion in Texas because her life did not appear to be threat-
ened by the continuation of her pregnancy; and that she could not afford
to travel to another jurisdiction in order to secure a legal abortion under
Private Life and the Law 279

safe conditions. She claimed that the Texas statutes were unconstitution-
ally vague and that they abridged her right of personal privacy, protected
by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an
amendment to her complaint, Roe purported to sue “on behalf of herself
and all other women” similarly situated.…
The principal thrust of appellant’s attack on the Texas statutes is that
they improperly invade a right, said to be possessed by the pregnant
woman, to choose to terminate her pregnancy. Appellant would dis-
cover this right in the concept of personal “liberty” embodied in the
Fourteenth Amendment’s Due Process Clause; or in personal, marital,
familial, and sexual privacy said to be protected by the Bill of Rights or
its penumbras.…
It perhaps is not generally appreciated that the restrictive criminal
abortion laws in effect in a majority of States today are of relatively
recent vintage. Those laws, generally proscribing abortion or its attempt
at any time during pregnancy except when necessary to preserve the
pregnant woman’s life, are not of ancient or even of common-law origin.
Instead, they derive from statutory changes effected, for the most part,
in the latter half of the 19th century.…
With respect to the State’s important and legitimate interest in
potential life, the “compelling” point is at viability. This is so because
the fetus then presumably has the capability of meaningful life out-
side the mother’s womb. State regulation protective of fetal life after
viability thus has both logical and biological justifications. If the State
is interested in protecting fetal life after viability, it may go so far as to
proscribe abortion during that period, except when it is necessary to
preserve the life or health of the mother.…
…The statute makes no distinction between abortions performed
early in pregnancy and those performed later, and it limits to a single
reason, “saving” the mother’s life, the legal justification for the proce-
dure. The statute, therefore, cannot survive the constitutional attack
made upon it here.
This conclusion makes it unnecessary for us to consider the addi-
tional challenge to the Texas statute asserted on grounds of vagueness.
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that
excepts from criminality only a life-saving procedure on behalf of the
mother, without regard to pregnancy stage and without recognition of
the other interests involved, is violative of the Due Process Clause of the
Fourteenth Amendment.
280 Law and Society: An Introduction

(a) For the stage prior to approximately the end of the first trimester,
the abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first tri-
mester, the State, in promoting its interest in the health of the mother,
may, if it chooses, regulate the abortion procedure in ways that are rea-
sonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its
interest in the potentiality of human life may, if it chooses, regulate,
and even proscribe, abortion except where it is necessary, in appropri-
ate medical judgment, for the preservation of the life or health of the
mother.
2. The State may define the term “physician,” … to mean only a phy-
sician currently licensed by the State, and may proscribe any abortion
by a person who is not a physician as so defined.…
…The decision leaves the State free to place increasing restrictions
on abortion as the period of pregnancy lengthens, so long as those
restrictions are tailored to the recognized state interests. The deci-
sion vindicates the right of the physician to administer medical treat-
ment according to his professional judgment up to the points where
important state interests provide compelling justifications for inter-
vention. Up to those points, the abortion decision in all its aspects
is inherently, and primarily, a medical decision, and basic responsi-
bility for it must rest with the physician. If an individual practitio-
ner abuses the privilege of exercising proper medical judgment, the
usual remedies, judicial and intra-professional, are available.…13

Despite a strong pro-life opposition to Roe v. Wade, the closest that

this decision has ever come to being overturned is in Planned Parenthood
v. Casey. In its decision, the U.S. Supreme Court by a narrow margin (5 to
4) upheld a 24-hour waiting period, an informed-consent requirement, a
parental consent provision for minors, and a record-keeping requirement,
while striking down a spousal-notice requirement.14 By the year 2013,
at least 28 states had enacted legislation to restrict the right to abortion.
Generally, these restrictions prohibit public funds from being used to per-
form abortions and regulate the requirements imposed on abortion clinics.
Presently, the most restrictive laws on abortion are those in the state of
Arkansas.
Private Life and the Law 281

Pornography

Although there is no widely accepted modern definition of pornography, the

common element in all definitions is that the material is sexually explicit.
Controversy revolves around whether specific visual presentations are benign
or harmful. Moreover, the central question that arises about pornography is
whether the materials are artistic or merely obscene. Obscenity is a legal term
identifying material that has been judged by the courts to violate specific
statutes pertaining to sexually explicit material. The primary issue in statu-
tory law is whether the material violates community standards of acceptabil-
ity and whether it involves minors.
Since the 1960s, research has been conducted to assess the effects of
exposure to sexually explicit material. Primary attention has been paid to
commercially produced materials intended to generate sexual arousal and/
or activity in adult audiences. Three components have been of principal
interest:

• The degree of explicitness

• Whether the material also contains aggression
• Whether it depicts women in demeaning and degrading ways

Whether or not pornography is harmful depends on one’s personal

views. For those who believe that anything fostering more permissive atti-
tudes toward sexuality or that even viewing others engaging in sexual acts
is morally wrong, then exposure to explicit sexual material is clearly unac-
ceptable. Conversely, if one believes that there is nothing wrong with permis-
sive attitudes and being stimulated by explicit materials, then pornography is
not harmful. However, there is complete agreement that material involving
minors or promoting sexual acts with children is unacceptable.

Pornography and the Internet

Pornography on the Internet is available in different formats, ranging from
pictures and short animated movies to sound files and stories. Most of this
kind of pornographic content is available to any online user through World
Wide Web (WWW) pages. The Internet also makes it possible to discuss sex
in chat rooms.
Congress’s first attempt to censor pornography came in February 1996
with the passage of the Communications Decency Act (CDA). The CDA
imposed broadcast-style content regulations on the open, decentralized
Internet and severely restricted the First Amendment rights of all Americans.
The CDA prohibited posting “indecent” or “patently offensive” materials
282 Law and Society: An Introduction

in a public forum on the Internet, including web pages, newsgroups, chat

rooms, or online discussion lists. However, the Supreme Court ruled that the
Internet is entitled to the highest protection under the free speech protec-
tions of the First Amendment. In Reno, Attorney General of the United States,
et al., Apellants v. American Civil Liberties Union et al., the Court found that
the Internet should have the same free speech protection as print. Writing
for the Court, Justice John Paul Stevens held that “the CDA places an unac-
ceptably heavy burden on protected speech” and found that all provisions of
the CDA are unconstitutional as they apply to “indecent” or “patently offen-
sive” speech. In a separate concurrence, Chief Justice William Rehnquist
and Justice Sandra Day O’Connor agreed that the provisions of the CDA are
all unconstitutional except in their narrow application to “communications
between an adult and one or more minors.”15
Congress followed with the Child Online Protection Act (COPA),
which makes it a crime for anyone, by means of the World Wide Web, to
make any communication for commercial purposes that is “harmful to
minors,” unless the person has restricted access by minors by requiring
a credit card number. COPA imposes criminal and civil penalties of up
to $50,000 per day for violations. COPA attempts to narrow the focus of
the criminal prohibition by using a so-called harmful-to-minors standard.
Moreover, COPA establishes a commission to study methods to protect
children on the Internet.
Despite the best efforts of Internet activists and the criticisms of civil
libertarians, the Child Online Protection Act (COPA) was passed as an
amendment to the Internet Tax Freedom Act, an omnibus appropriations
bill. Other amendments included provisions for digital signatures, chil-
dren’s privacy, and the Dodd amendment that required ISPs to provide
customers with filtering tools.

Questions in Review
1. Describe how the Privacy Act controls the record management of
federal agencies.
2. What is the purpose of the Right of Publicity?
3. What is the difference between wire communications and electronic
communications?
4. Under the Computer Fraud and Abuse Act, what constitutes mali-
cious damage?
5. Should computer hackers like Robert Morris be severely punished
for introducing computer viruses?
6. Should the Child Online Protection Act be repealed as a violation of
the First Amendment? Why or why not?
Private Life and the Law 283

Endnotes
1. 277 U.S. 438 (1928).
2. Katz v. United States, 389 U.S. 347 (1967).
3. Griswold v. Connecticut, 381 U.S. 479 (1965).
4. Whalen v. Roe, 429 U.S. 589 (1977).
5. A. Amar. (2013). America’s unwritten constitution. New York, NY: Basic Books.
6. A citizen’s guide on using the Freedom of Information Act and the Privacy Act
of 1974 to request government records. (1977, March 20). House Report 105-37.
7. A citizen’s guide on using the Freedom of Information Act and the Privacy Act
of 1974 to request government records. (1977, March 20). House Report 105-37.
8. 5 U.S.C. 552 as amended by Pub. L. No. 104-231 110 Stat. 3048.
9. 18 USC, § 1030, PL 99-474.
10. 18 USC, §§ 2510–2522.
11. 18 USC, § 2510(12).
12. 18 USC, § 1030.
13. Roe v. Wade, 410 U.S. 113 (1973).
14. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
15. Reno v. American Civil Liberties Union et al. 117S.Sct. 2329, 138 L.Ed. 2d. 874
(1997).
Crime and Justice
Issues
11
Chapter Objectives

After reading this chapter you should be able to

• Identify exceptions to the exclusionary rule

• Explain both the pros and cons of plea bargaining
• Discuss the impact of hate crimes and stalking legislation
• Critically analyze capital punishment from a pro and con position
• Explain the push that has led to prison overcrowding

Introduction

A primary concern of citizens in today’s society is crime and justice. Pick

up any daily newspaper in the United States and you’ll find multiple sto-
ries that report crime in the community and what actions by the police,
courts, and corrections were taken. We have become a society that knows
violence, and many people are more than just a little fearful of being vic-
timized by others. As a whole, the public reaction to crime has been to
introduce and pass more laws. In some circumstances, we have taken a
second look at existing laws to see if personal rights and privileges have
“handcuffed” the criminal justice system that is entrusted with protecting
society from wrongdoers.
In this chapter, we examine crime and justice issues facing today’s
society. While there are many such issues, we have chosen to focus on a
few specific matters of law in the areas of citizen rights, victimization, and
punishment. We begin by examining the Fourth Amendment protection
against unreasonable search and seizure and the exclusionary rule of evi-
dence. Next, we discuss the use of plea bargaining, followed by a general
discussion of hate crimes and related laws that deal with such criminal
offenses as stalking. In the final portion of the chapter, we take a look at the
use of capital punishment and the state of our correctional population in
the United States.

285
286 Law and Society: An Introduction

Exclusionary Rule

The Fourth Amendment to the U.S. Constitution protects “the right of the
people to be secure in their persons, houses, papers, and effects, against rea-
sonable searches and seizures.” This guarantee protects against actions by the
states as well as by the federal government.1 Generally, the Court has inter-
preted the Fourth Amendment to mean that before a search or seizure can be
effectuated, the police must have probable cause to believe that a crime has
been committed and that evidence relevant to the crime will be found at the
place to be searched. The exclusionary rule provides that evidence obtained
in violation of the Constitution is inadmissible in a criminal trial. The rule
excludes all evidence secured by police in violation of recognized constitu-
tional restrictions.
Over the last century, the exclusionary rule has come under fire by crit-
ics who suggest some exceptions to the exclusionary should be allowed.
Consequently, the U.S. Supreme Court has heard several cases dealing with
the issue, and although the exclusionary rule has not been completely dis-
carded, its utilization has been substantially curbed. For example, defendants
who themselves were not subjected to illegal searches and seizures may not
object to the introduction against themselves of evidence illegally obtained
from coconspirators or codefendants.2 Also, evidence seized through a
wrongful search may sometimes be used in the criminal trial if the prosecu-
tion can show a sufficient attenuation of the link between police misconduct
and obtaining of the evidence.3
The most severe curtailment of the rule came in 1984 with the adoption
of a “good faith” exception. In United States v. Leon,4 which allows good-faith
exceptions to the exclusionary rule, the Court reformulated the test for apply-
ing the exclusionary rule and narrowed the scope of Fourth Amendment
protection for those arrested for crimes. In this case, police officers received a
tip from an informant regarding possible drug dealing among the defendant
Leon and others. The officers observed suspicious activities and obtained
search warrants. They found incriminating evidence in the searches, but the
warrants were later invalidated because the police lacked probable cause and
also because the informant was unreliable. Nevertheless, the Court allowed
the evidence obtained in the search to be admitted because the police were
acting in good faith.
The Court applied a cost–benefit analysis to determine whether the exclu-
sionary rule should be applied. That is, the benefits of deterring unconstitu-
tional police conduct are weighed against the costs of excluding the evidence.
The purpose of the rule is to sanction police for overstepping constitutional
bounds. In this case, the police were found not to have overstepped their
bounds, so the Court concluded that there would be little benefit in applying
Crime and Justice Issues 287

the rule. The Court found that the costs were much greater. Though the per-
centage of criminals released was small as a result of its application, the over-
all number was great. Releasing someone who had broken the law was a cost
outweighing any benefit realized in attempting to deter outrageous police
conduct.
In 1995, the U.S. Supreme Court further narrowed the application of the
exclusionary rule under the Fourth Amendment in Arizona v. Evans. The
original case involved Isaac Evans, who was pulled over by police for travel-
ing the wrong way on a one-way street. Evans claimed that his license had
been suspended, and police ran a records check that showed the suspended
license and an outstanding misdemeanor warrant. Police arrested Evans for
the outstanding warrant. In the process of the arrest, Evans dropped a mari-
juana cigarette. Officers then searched Evans’s car and found a bag of mari-
juana under the passenger seat.
An element of the case and the point of major contention by the defen-
dant was that the warrant had been canceled more than 2 weeks before the
traffic stop in question. However, the records-checking computer system had
not been updated to reflect the changes. In short, Evans had no active war-
rants for his arrest. At trial, Evans moved to suppress the marijuana evi-
dence, arguing that the exclusionary rule should apply to unconstitutional
arrests based on clerical errors, not just cases with errors by police officers.
The trial court threw out the evidence, but the state court of appeals
held that because the error was not made by the arresting officer but by a
clerical worker, the exclusionary rule would not apply. However, the Arizona
Supreme Court reversed this ruling, declaring that there should be no dis-
tinction between the police officer and the employees of the court for the
purposes of the application of the exclusionary rule. The goal of the exclu-
sionary rule, to prevent police misconduct, should also serve to improve the
service of court clerical workers.5
The U.S. Supreme Court granted certiorari to determine whether the
exclusionary rule requires suppression of evidence seized incident to an
arrest resulting from an inaccurate computer record, regardless of whether
police personnel or court personnel were responsible for the record’s contin-
ued presence in the police computer. Judge Rehnquist, writing on behalf of
the U.S. Supreme Court majority, said the police officers were unknowingly
acting on the errors of court employees who have no stake in criminal pro-
ceedings. Any suppression of the evidence would not deter clerical workers
from such errors in the future. The Court reversed the decision of the Arizona
Supreme Court for the same three reasons it relied upon in United States v.
Leon. First, the exclusionary rule is designed to deter police misconduct, and
no misconduct was found in Evans’s case. Second, there is no evidence that
court employees are inclined to ignore the Fourth Amendment. Third, there
is no evidence that applying the rule will make employees more accurate
288 Law and Society: An Introduction

or deter misconduct. Applying the rule because of a court employee’s error

would not alter the behavior of the officer making the arrest, because the offi-
cer was doing his job. Had the officer not arrested Evans upon notice of the
outstanding warrant, the officer would have failed in performing his duty.6
Much of the modern debate focuses on whether the constraints placed
on police by the exclusionary rule should be lessened even more. Proponents
typically support this view by claiming that the exclusionary rule is not
grounded in the U.S. Constitution, is not a deterrent to police misconduct,
and serves as an obstruction to justice. Those who oppose narrowing the
scope of the exclusionary rule argue that to do so would significantly reduce
the limitations placed on the government’s ability to search the homes and
property of citizens. What’s more, it would abolish fundamental constitu-
tional protections afforded to citizens and create greater opportunity for
police misconduct.

CRIME AND JUSTICE: THE FOURTH, FIFTH,

SIXTH, AND EIGHTH AMENDMENTS
The criminal justice system is comprised of police, courts, and correc-
tions. The system functions as a process in which crimes are investi-
gated, charged, prosecuted, and punished. Because the criminal justice
system involves actions by the government, citizens enjoy constitutional
protections under modern law that stems from both federal and state
constitutions. Court rulings typically deal with Fourth, Fifth, Sixth,
and Eighth Amendment issues.
Fourth Amendment: Search and Seizure
In the process of investigating a criminal case, police often search for
evidence of the crime. The Fourth Amendment to the U.S. Constitution
places limits on the government’s ability to search the homes and prop-
erty of citizens. Under the Fourth Amendment, law enforcement offi-
cers must have a search warrant, issued upon a showing of probable
cause, in order to search a private home or premises without the con-
sent of the occupants. Otherwise, the exclusionary rule applies, and any
evidence obtained illegally is inadmissible in a court of law.
There are a few exceptions to the requirement that police obtain a
warrant prior to search. At the time of arrest, for example, police may
search the individual and the immediate area around the person in a
search “incident to an arrest.” The exception is necessary to secure the
safety of the police officer and the custody of the suspect being arrested.
The search also enables the officer to gather the fruits of the crime and
prevent the destruction of the evidence. Another exception occurs in
Crime and Justice Issues 289

circumstances that are viewed as critical and immediate. Certain emer-

gencies that call for immediate action do not allow time to obtain a
search warrant; they are exigent circumstances. Police may also search
a home or other premises without first obtaining a warrant when the
officer in “good faith” believes that:

• A person’s life is in danger

• Evidence might be destroyed
• A dangerous suspect may be about to escape

Fifth Amendment: Right to Remain Silent

The Fifth Amendment to the U.S. Constitution provides that no per-
son may be compelled to be a witness against himself or herself. This
“right to remain silent” has numerous applications in the law of crimi-
nal procedure.

• Under the Fifth Amendment, a person may refuse to answer

the questions of law enforcement officers. If a person is called
before a grand jury to testify, the person may refuse to answer
any questions posing the possibility that they will incriminate
themselves. This means that a person can refuse to answer a
question requiring them to admit some action constituting a
crime or subjecting them to criminal prosecution. Prosecutors
may give such individuals immunity from prosecution in order
to compel them to testify despite their Fifth Amendment right.
• The Fifth Amendment also means that criminal defendants
cannot be called as witnesses at their own trials without their
consent.

Lastly, under the Fifth Amendment, a person may not be tried twice
for the same crime. The principle of law known as “double jeopardy”
means that if a person is found not guilty of a crime, they cannot be tried
again for the same crime. However, a person who is found not guilty of
a crime under state law may, under certain circumstances, be tried for
the same conduct under federal law. Likewise, conduct constituting a
crime may amount to a negligent or intentional injury of another per-
son. It is not considered being put “in jeopardy” for a person to be sued
under the civil law. Because the proof requirement in a criminal case
is higher (proof beyond a reasonable doubt) than in a civil case (“pre-
ponderance of the evidence”), an injured person can seek damages for
290 Law and Society: An Introduction

that injury under the civil law of torts. The suit can be made regardless
of whether the defendant has been found not guilty of a crime based on
the same set of facts (as was the case with O. J. Simpson).
Sixth Amendment: Right to Counsel
The Sixth Amendment to the U.S. Constitution guarantees the right
to legal counsel at all significant stages of a criminal proceeding. The
right to legal counsel is considered so important that there is an associ-
ated right given to persons who are indigent and unable to pay for legal
counsel to have counsel appointed and paid for by the government. The
Sixth Amendment right to counsel has been extended to

• The interrogation phases of an investigation

• The trial
• Sentencing proceedings
• At least an initial appeal of any conviction

Likewise, the Sixth Amendment guarantees the right to a public trial

by jury. Under common law, a criminal defendant is entitled to a public
trial by jury in cases of felonies and in cases of misdemeanors where the
term of imprisonment may exceed 1 year. Under current constitutional
law principles, a jury trial is required where the term of imprisonment
may exceed 6 months. Individual states may provide for a jury trial in a
broader class of criminal cases. Moreover, the Sixth Amendment states
that “the accused shall enjoy the right to a speedy … trial.” This provi-
sion is interpreted as meaning that the trial should take place as soon as
possible without depriving the parties of a reasonable period of time for
preparation. The purposes of this right are:

• To protect an accused from prolonged detention in jail prior

to trial
• To prevent long delays that could impair the defense of an
accused person through the loss of evidence
• To prevent or minimize public suspicion and anxiety con-
nected with an accused who is yet untried

Eighth Amendment: Cruel and Unusual Punishment

The Eighth Amendment prohibits the infliction of cruel and unusual
punishment. Lack of uniformity by the courts in interpreting this
constitutional requirement has caused confusion concerning what
Crime and Justice Issues 291

punishment is prohibited. The Supreme Court ruling in Trop v. Dulles,

356 U.S. 86 (1958), asserted that the meaning of the Eighth Amendment
must be drawn from “the evolving standards of decency that mark
the progress of a maturing society.” Several years later, in Furman v.
Georgia, 408 U.S. 238 (1972), the Court ruled that the imposition and
carrying out of the death penalty under those circumstances consti-
tuted cruel and usual punishment. However, it reversed itself 4 years
later in Gregg v. Georgia, 428 U.S. 153 (1976), when in effect the Court
lifted the ban on executions in the United States.

Plea Bargaining

In the United States, very few criminal cases are determined by trial. In fact,
approximately 90% of cases are decided by guilty pleas.7 The prosecutor and
defense engage in plea bargaining to reach an agreement that spares the state
the cost of a trial in exchange for some leniency to the defendant. Typically,
the leniency involves a reduced charge or reduced sentence for a guilty plea.
Plea bargaining may be explicit or implicit. Explicit bargaining involves
overt negotiations between two or more parties in the case (defense counsel,
judge, prosecutor) that results in an agreement on the terms under which the
defendant will plead guilty. Implicit bargaining means that the defendant
simply understands that a more severe sentence is likely to be imposed if the
case goes to trial.
Plea bargaining allows the defendant to avoid a trial and the possibility
of a verdict that may result in a more severe sentence by agreeing to plead
guilty to a lesser offense. Victims are often most distressed at the perceived
ability of the defendant to “get off easy” by bargaining with the prosecutor
to lower the offenses of which they may actually be guilty. Many victims
and advocates rightfully consider victim participation in the plea negotiation
process as essential to providing victims with a voice in the system.
Several states have passed laws that dramatically impact plea bargaining.
For example, the “three-strikes legislation” has greatly reduced plea bargain-
ing rates. Likewise, various mandatory sentences have reduced the capacity
for plea negotiations. For example, New York’s tough drug control laws and
Massachusetts’s gun control legislation prescribe mandatory incarceration
of violators. However, limited plea bargaining has its own consequences in
the sense that such laws clog the court system. As more and more defendants
opt for trials, court capacities diminish and court costs rise. In order to free
crowded court calendars, civil cases are pushed back beyond the point of
tolerance of citizens seeking justice. Evaluations of the impact of this type of
292 Law and Society: An Introduction

legislation have shown invariably that it tends to be subverted by practitio-

ners whenever they perceive that injustice would result:

Prosecutors refuse to press for conviction, juries refuse to convict, and judges
refuse to sentence people under these provisions. Hundreds of imaginative
ways are found at every level of the criminal justice system (including the
police) to circumvent the intent of such laws.8

Hate Crimes

In 2011, there were 6,222 hate crime incidents reported to the FBI involving
7,254 hate crime offenses. The 2011 statistics reflected the following number
of crime offenses by bias motivation:

• 3,465 were motivated by racial bias

• 1,318 were motivated by religious bias
• 891 were motivated by ethnicity/national origin bias
• 1,508 were motivated by sexual orientation bias
• 58 were motivated by disability bias
• 14 were motivated by multiple biases

In the United States, all of the states, with the exception of Arkansas,
Georgia, Indiana, South Carolina, and Wyoming,9 have passed some form
of hate crime statute. These laws have come in a variety of forms, including

• Outlawing vandalism against religious institutions, such as churches

and synagogues
• Outlawing intimidation of individuals
• Allowing for civil actions against perpetrators of hate crimes
• Holding parents liable for the actions of their children
• Requiring states to compile statistics on hate crimes

In addition, some states have gone further by enacting statutes that “enhance”
criminal penalties for hate-motivated crimes.
On the federal level, several efforts have resulted in legislation to con-
trol hate crimes. Of particular importance are the Hate Crimes Statistics
Act, the Hate Crimes Sentencing Enhancement Act, and the Church Arsons
Prevention Act.
The Hate Crimes Statistics Act, which originally became law in 1990, was
reauthorized in the 104th Congress. This law calls for states and localities to
voluntarily report all hate crimes to the FBI. Under the Hate Crime Statistics
Act, the attorney general collects data on the number of crimes committed
Crime and Justice Issues 293

each year that are motivated by “prejudice based on race, religion, sexual ori-
entation, or ethnicity.” The attorney general has directed the Federal Bureau
of Investigation’s Uniform Crime Reporting Program to collect the data and
produce annual reports.
Meanwhile, the FBI has trained almost 3,700 staff members from almost
1,200 state, local, and federal law enforcement agencies on how to prevent,
prosecute, and deal with the aftermath of hate crimes. In these training pro-
grams, the FBI works with the Justice Department’s Community Relations
Service (CRS). Created by the 1964 Civil Rights Act, CRS is the only federal
agency whose most important purpose is to help communities cope with dis-
putes among different racial, religious, and ethnic groups. CRS professionals
have helped with Hate Crime Statistics Act training sessions for hundreds of
law enforcement officials from police agencies around the country.
The Hate Crimes Sentencing Enhancement Act, which was part of the
Violent Crime Control and Law Enforcement Act of 1994, provides for
tougher sentencing when it is proven beyond a doubt that the crime com-
mitted was a hate crime. Because federal law enforcement agencies do not yet
have jurisdiction over anti-gay hate crimes, this law can only be used against
hate crimes based on sexual orientation when the offense occurs on federal
property, such as a national park.
Likewise, Congress passed the Violence Against Women Act, a compre-
hensive federal response to the national problem of violence against women.
This legislative package included $1.6 billion in funding for improved law
enforcement and prosecution programs, victims services such as domestic
violence shelters and rape crisis centers, and education and research pro-
grams. It also included new domestic violence offenses as well as changes in
immigration law and other legal forms. Most significantly, it includes a civil
rights remedy—a provision allowing a woman to sue in federal or state court
for an act of gender-motivated violence that rises to the level of a felony.10 The
Violence Against Women Act was reenacted in 2013 and included additional
protections for gay individuals and individuals living on Indian reservations.
In the aftermath of the rash of fires at black churches, and with the strong
support of the Leadership Conference on Civil Rights, Congress passed and
President Clinton signed into law the Church Arsons Prevention Act of 1996.
The law enhances federal jurisdiction over and increases the federal penalties
for the destruction of houses of worship. Congress and the Clinton adminis-
tration provided $12 million for a federal investigation of the church fires. In
addition, the act gives a continuing mandate to the Hate Crime Statistics Act.
The Hate Crimes Prevention Act (HCPA) undertook amending Section
245 of Title 18 U.S.C., one of the primary statutes to combat racial and reli-
gious bias-motivated violence. The current statute, which was enacted in
1968, prohibits intentional interference, by force or threat of force, with the
enjoyment of a federal right or benefit (e.g., voting, going to school, etc.) on
294 Law and Society: An Introduction

the basis of race, color, religion, or national origin. Government must prove
both that the crime occurred because of a person’s membership in a pro-
tected group (e.g., race, religion, etc.) and because he or she was engaging in
a federally protected activity.

IN SUPPORT OF THE HATE CRIMES PROTECTION ACT:

THE CASES OF JAMES BYRD AND MATHEW SHEPARD
On June 7, 1998, in Jasper, Texas, 49-year-old James Byrd, Jr., was the
victim of a hate crime, targeted simply because he was black. Byrd was
savagely beaten, then shackled by his ankles with a 24-foot logging
chain to a pickup truck and dragged for three miles. His body, minus
his head, neck and an arm, was dumped between a black church and
cemetery, where it was found a few hours after daylight.
Police arrested Lawrence Russell Brewer, 31, Shawn Allen Berry, 23,
and John William King, 23, for the crime of first-degree murder. FBI
investigators disclosed that the suspects had ties to white-supremacist
groups and that two had tattoos of the Aryan Brotherhood, a racist
prison gang. One carried a lighter engraved with an emblem of the Ku
Klux Klan. All three men were tried and found guilty. Brewer and King
received the death penalty and will be executed by lethal injection.
Berry will serve the rest of his life in prison.
Between the night of October 6 and the early morning of October 7,
1998, in southern Wyoming, Matthew Shepard was brutally attacked and
tied to a fence simply because he was gay. Shepard met Russell Henderson
and Aaron McKinney, who told him they were gay. Henderson and
McKinney drove Shepard to a remote area, where they severely beat him
and then left the 21-year-old University of Wyoming student to die in
near-freezing temperatures. Five days after the beating, he died from his
injuries in a Colorado hospital.
Russell Henderson, 21, and Aaron McKinney, 21, were charged with
first-degree murder, aggravated robbery, and kidnapping. Henderson
decided to plead guilty to the charges of felony murder and kidnapping,
with robbery as the underlying motive. He was subsequently sentenced
to two consecutive life sentences. A jury in Laramie, Wyoming, found
Aaron McKinney guilty of felony murder, kidnapping, and aggravated
robbery and sentenced him also to two life sentences. Chasity Pasley,
the girlfriend of Russell Henderson, was sentenced to 15 to 24 months
in jail for her attempted cover-up of her boyfriend’s role in Matthew
Shepard’s murder.
Crime and Justice Issues 295

CRIMES AGAINST DISABLED PERSONS

The victimization of individuals with disabilities was largely over-
looked on the national level prior to passage of the Americans with
Disabilities Act (ADA) of 1990 (42 U.S.C. 12101). The ADA provided a
new framework for governmental and nonprofit agencies responding to
individuals with disabilities. Since its implementation, the Department
of Justice and other federal agencies have initiated a variety of efforts
to provide information to state and local criminal and juvenile justice
agencies and victim-assistance programs on the intent and require-
ments of the act. Several milestones that illustrate the victim-service
field’s growing awareness and concern about addressing the needs of
victims with disabilities are noted as follows:

• In 1990, the National Organization for Victim Assistance

(NOVA) first helped to bring awareness to the many obstacles
faced by disabled victims seeking services with its publication
entitled Responding to Disabled Victims of Crime in 1990.
• In 1992, the National Resource Center on Child Sexual Abuse
(NRCCSA) published a comprehensive series of articles, writ-
ten by research and practitioner experts, on the sexual abuse
of children with disabilities. In addition, the Center’s annual
National Symposium on Child Sexual Abuse regularly features
a training track on child victims with disabilities.
• In 1993, with support from the Office for Victims of Crime,
the National Center for Victims of Crime (NCVC) developed a
training curriculum entitled Differently Abled Victims of Crime
that provides extensive information on how to provide special-
ized services and information to disabled crime victims.
• In 1993, the National Center on Child Abuse and Neglect
(NCCAN) released findings from a comprehensive national
study entitled A Report on the Maltreatment of Children with
Disabilities. The study focused on maltreated children who
had physical, intellectual, or emotional disabilities. It found a
significant correlation between maltreated children and abuse
and offered key recommendations for responding to abused
children with disabilities.
• After the passage of the Americans with Disabilities Act in
1990, the National Institute of Justice (NIJ), within the U.S.
Department of Justice, launched an initiative to examine the
implications of the ADA for criminal justice agencies at the
296 Law and Society: An Introduction

state and local levels. In 1993, NIJ published The Americans

with Disabilities Act and Criminal Justice: An Overview as a
bulletin in its Research in Action publication series.
• In 1994, Dick Sobsey’s books, Violence and Abuse in the Lives
of People with Disabilities: The End of Silent Acceptance and
Violence and Disability: An Annotated Bibliography, were
published. The texts extensively review literature on violence
and abuse toward individuals with disabilities and provide
guidance for prevention of abuse and victimization. Although
much of the material focuses on individuals with develop-
mental disabilities and abuse in institutions, the books give
new weight to the overall issue of victims with disabilities.
• In 1997, the Victims of Crime Committee of the Criminal
Justice Task Force for People with Developmental Disabilities
in Sacramento, California, issued its report outlining evi-
dence of the high rates of violent and criminal victimization
of people with developmental and other substantial disabilities
(including mental retardation; autism; cerebral palsy; epilepsy;
traumatic brain injury; severe major mental disorders; degen-
erative brain disease such as Alzheimer’s, Parkinson’s, and
Huntington’s; permanent damage from stroke; organic brain
damage; and others). These high rates of victimization, coupled
with underreporting of the crimes and low rates of prosecution
and conviction, led the committee to develop 59 recommenda-
tions to improve the reporting, investigation, and prosecution
of such crimes. In addition, the group called for multidisci-
plinary teams to provide victim support and numerous mea-
sures to prevent abuse and victimization by service providers.
Finally, the committee recommended that the Bureau of Justice
Statistics include information on victims with developmental
and other substantial disabilities in its Crime Victimization
Survey. Members of the committee, including Daniel Sorensen,
chair, and Joan Petersilia, presented the recommendations to
the California legislature and to members of Congress.
• On October 27, 1998, the president signed the Crime Victims
with Disabilities Act of 1998, which represents the first effort to
systematically gather information on the extent of the problem
of victimization of individuals with disabilities. This legisla-
tion directed the attorney general to conduct a study on crimes
against individuals with developmental disabilities within 18
months. In addition, the Bureau of Justice Statistics had to
Crime and Justice Issues 297

include statistics on the nature of crimes against individuals

with developmental disabilities and victim characteristics in
its annual National Crime Victimization Survey beginning in
2000. The legislation was sponsored by Senator Mike DeWine
(OH), a former prosecutor, and represents an unprecedented
level of attention to an often overlooked crime victim group.

Adapted from: Jane Sigmon & Christine Edmunds. (2000).

Victimization of individuals with disabilities. In A. Seymour, M.
Murray, J. Sigmon, C. Edmunds, M. Gaboury, et al. (Eds.). National
victim assistance academy 2000 (chapter 15). Washington, DC:
National institute of Justice.

Stalking

Stalking first garnered widespread public concern when a popular young

actress named Rebecca Schaeffer was shot to death in 1989 by an obsessed
fan who had stalked her for 2 years. High-profile cases of celebrities being
stalked have raised the public’s awareness of this crime. Television and radio
talk shows and the mass market print media all ran stories about stalking,
its potentially deadly consequences, the terrifying helplessness victims expe-
rienced, and celebrities who had been stalked.11 But the majority of stalk-
ing victims are ordinary people, mostly women, who are being pursued and
threatened by someone with whom they have had a prior relationship.
Researchers estimated that approximately 1 million women and 400,000
men are stalked each year in the United States. About half of all female stalk-
ing victims reported their victimization to police, and about 25% obtained
a restraining order. Assailants violated 80% of all restraining orders. About
24% of female victims who reported stalking to the police, as compared to
19% of male victims, said their cases were prosecuted. Of the cases in which
criminal charges were filed, 54% resulted in a conviction. About 63% of con-
victions resulted in jail time.12
Although stalking is a gender-neutral crime, women are the primary vic-
tims and men the primary perpetrators. Data from the National Violence
Against Women Survey (NVAW) suggest that 78% of stalking victims are
women; 22% are men. By comparison, 94% of stalkers identified by female
victims and 60% identified by male victims were male. Young adults were
stalkers’ primary targets: 52% of victims were 18 to 29 years old when the
stalking began, and 22% were 30 to 39. On average, victims were 28 years old
when the stalking started. Most victims knew their stalkers: 77% of female
victims and 64% of male victims knew their stalker. Current or former
298 Law and Society: An Introduction

husbands and former dates or boyfriends stalked 38% and 14% of female
victims, respectively. Overall, 59% of female victims compared with 30% of
male victims were stalked by intimate partners or former intimate partners.
Previous reports indicate that the stalking of a woman by an intimate or a
former intimate partner typically occurs after she attempts to leave the rela-
tionship. The NVAW survey found that 21% of victims who were stalked by
intimate partners said it occurred before the relationship ended, 43% said
afterward, and 36% said both before and afterward.13

Interstate Stalking Punishment and Prevention Act of 1996

In 1996, Congress enacted a law prohibiting interstate stalking and stalk-
ing on federal property. This federal legislation, the Interstate Stalking
Punishment and Prevention Act of 1996, contains several provisions of
law, including:14

• Interstate domestic violence (Title 18 U.S. Code 2261)

Crossing a state line: A person who travels across a state line or enters
or leaves Indian country with the intent to injure, harass, or
intimidate that person’s spouse or intimate partner, and who, in
the course of or as a result of such travel, intentionally commits a
crime of violence and thereby causes bodily injury to such spouse
or intimate partner shall be punished.
Causing the crossing of a state line: A person who causes a spouse or
intimate partner to cross a state line or to enter or leave Indian
country by force, coercion, duress, or fraud and, in the course
or as a result of that conduct, intentionally commits a crime of
violence and thereby causes bodily injury to the person’s spouse
or intimate partner shall be punished.
• Interstate stalking (Title 18 U.S. Code 2261A)
Whoever travels across a state line or within the special maritime
and territorial jurisdiction of the United States with the intent
to injure or harass another person, and in the course of, or as a
result of, such travel places that person in reasonable fear of the
death of, or serious bodily injury to, that person or a member of
that person’s immediate family shall be punished.
• Interstate violation of protection order (Title 18 U.S. Code 2262)
Crossing a state line: A person who travels across a state line or enters
or leaves Indian country with the intent to engage in conduct that
1. Violates the portion of a protection order that involves pro-
tection against credible threats of violence, repeated harass-
ment, or bodily injury to the person or persons for whom the
protection order was issued shall be punished.
Crime and Justice Issues 299

2. Would violate this subparagraph if the conduct occurred in

the jurisdiction in which the order was issued, and subse-
quently engages in such conduct, shall be punished.
Causing the crossing of a state line: A person who causes a spouse or
intimate partner to cross a state line or to enter or leave Indian
country by force, coercion, duress, or fraud, and, in the course
or as a result of that conduct, intentionally commits an act that
injures the person’s spouse or intimate partner in violation of a
valid protection order issued by a state shall be punished.

Punishment
A person who violates these sections shall be both fined and imprisoned

• For life or any term of years if death of the victim results

• For not more than 20 years if permanent disfigurement or life-
threatening bodily injury to the victim results
• For not more than 10 years if serious bodily injury to the victim
results or if the offender uses a dangerous weapon during the offense
• For not more than 5 years in any other case

State Anti-Stalking Legislation

All 50 states and the District of Columbia have some form of anti-stalking
law. Most state statutes define stalking as a crime involving “the willful, mali-
cious, and repeated following or harassing of another person.”15 Generally,
anti-stalking laws can be classified into three different categories based on
the punishment. They include
• Statutes that make stalking a misdemeanor offense
• Statutes that distinguish between first-time and chronic offending, with
penalties ranging from misdemeanor to felony offenses, respectively
• Statutes that make all stalking a felony offense

VICTIMOLOGY
Andrew Karmen, who wrote a comprehensive text on victimology enti-
tled Crime Victims: An Introduction to Victimology, broadly defined vic-
timology as
the scientific study of victimization, including the relationships between
victims and offenders, the interactions between victims and the crimi-
nal justice system—that is, the police and courts, and corrections offi-
cials—and the connections between victims and other societal groups
and institutions, such as the media, businesses, and social movements.
300 Law and Society: An Introduction

The scientific study of victimology can be traced back to the 1940s

and 1950s. Until then, the primary focus of research and academic
analysis in the field of criminology was on criminal perpetrators and
criminal acts, rather than on victims. Two criminologists, Mendelsohn
and Von Hentig, began to study the other half of the offender/victim
dyad: the victim. They are now considered the “fathers of the study of
victimology.”
In their efforts to understand crime, these new “victimologists”
began to study the behaviors and vulnerabilities of victims, such as the
resistance of rape victims and the characteristics of the types of people
who were victims of crime, especially murder victims.
In the course of his legal practice, Mendelsohn interviewed his cli-
ents to obtain information about the crime and the victim. He viewed
the victim as one factor among many in the criminal case. His analy-
sis of information about victims led him to theorize that victims had
an “unconscious aptitude for being victimized.” Von Hentig studied
crime and victims in the 1940s, and Steven Shaffer later published The
Criminal and His Victim. Their analysis of murder focused on the types
of people who were most likely to be victims of homicide. The most
likely type of victim Von Hentig identified is the “depressive type,”
who was seen as an easy target, careless and unsuspecting. The “greedy
type” was seen as easily duped because his or her motivation for easy
gain lowers his or her natural tendency to be suspicious. The “wanton
type” is particularly vulnerable to stresses that occur at a given period
of time in the life cycle, such as juvenile victims. Von Hentig’s last type
was the “tormentor,” the victim of attack from the target of his abuse,
such as the battered woman.
Von Hentig’s work provided the foundation for analysis of vic-
tim-proneness that is still evident in the literature today. Wolfgang’s
research followed this lead and later theorized that “many victim-pre-
cipitated homicides were, in fact, caused by the unconscious desire of
the victims to commit suicide.”
Viewed from the perspective of criminology, victimology initially
devoted much of its energy to the study of how the victims contribute—
knowingly or unknowingly—to their own victimization, and potential
ways they may share responsibility with offenders for specific crimes.
The negative effects of “victim blaming” have been a key tenet in
the fight to improve the treatment of crime victims. Research into ways
in which victims “contribute” to their own victimization was (and con-
tinues to be) viewed by victims and victim advocates as both unaccept-
able and destructive.
Crime and Justice Issues 301

As crime victim services and rights have expanded throughout the

last two decades, practitioners and public-policy makers have looked to
research to provide a more scientific foundation for service design and
delivery. More recent avenues of studies in victimology have included

• How various components of the criminal justice system treat

victims
• The impact of victimization
• The effectiveness of certain interventions with crime victims

Extensive qualitative and quantitative research about the nature

and scope of crime victim services has been conducted and published.
Studies about the effectiveness of interventions with crime victims have
also been done. In addition, the debate about the scope and focus of vic-
timology is evolving and is illustrated in the sharply contrasting topics
of research that are found in a variety of victimology journals.

Adapted from: J.N. Burnley, C. Edmunds, M.T. Gaboury, & A.

Seymour (Eds.). (1998). Theoretical perspectives of victimology
and critical research. In 1998 National Victim Assistance Academy
(chapter 3). Washington, DC: National Institute of Justice.

Capital Punishment

Throughout the history of mankind, people have been put to death for
committing certain types of transgressions against society. The Code of
Hammurabi (1750 B.C.) used the death penalty as a means of retaliation
against those who committed crimes. “An eye for an eye” is a common quo-
tation used to depict the retaliatory nature of this doctrine of punishment. In
the seventh century B.C., the Draconian Code of Athens made death the pre-
scribed penalty for every crime committed. Later, in the fifth century B.C.,
the Roman Law of the Twelve Tablets codified the death penalty. A death
sentence was carried out in cruel fashion involving such methods as being
buried alive, beheading, crucifixion, hanging, and stoning to death. The most
infamous execution in history occurred approximately 33 A.D., with the cru-
cifixion of Jesus Christ.
Law reform regulating the use of the death penalty began to emerge in
Europe in the 19th century. For example, between 1832 and 1837, Britain did
away with many capital offenses. By the end of the 20th century, more and
more European countries had abolished capital punishment. Today, only a
few European countries retain the death penalty.
302 Law and Society: An Introduction

The Death Penalty in America

Capital punishment was first used in America in 1622, when a thief named
Daniel Frank was put to death in Virginia.16 Most of the early colonies were
very strict in their use of the death penalty. Under the capital punishment
laws of New England, which were enacted between 1636 and 1647, the death
penalty was imposed for such crimes as adultery, bestiality, blasphemy, man-
stealing, murder, rape, rebellion, sodomy, and witchcraft.17 In 1665, the New
York colony instituted the so-called Duke’s Laws, which dictated that death
was the proper punishment for denial of the true God, premeditated murder,
killing someone who had no weapon of defense, killing by lying in wait or by
poisoning, sodomy, buggery, kidnapping, perjury in a capital trial, traitorous
denial of the king’s rights or raising arms to resist his authority, conspiracy
to invade towns or forts in the colony, and striking one’s mother or father.18
By 1776, most of the colonies had roughly comparable death statutes, and the
method of execution was hanging.
The first tangible reforms to capital punishment in America occurred
in the mid-1800s, as two progressive ideologies about punishment began to
converge. First, it became apparent that executions were becoming more of
a public spectacle for amusement rather than an event to deter crime. Public
hangings encouraged merchants to sell alcohol to citizens who were on hand
to celebrate the execution. The melee that often ensued because of drunken-
ness caused total disruption of the justice process. As a result, many states
enacted laws providing private hangings. Rhode Island (1833), Pennsylvania
(1834), New York (1835), Massachusetts (1835), and New Jersey (1835) all
abolished public hangings. By 1849, 15 states were holding private hangings.19
The second progressive force that reformed the use of capital punishment
was the advent of the prison system in America. In 1790, the Philadelphia
Society established the first penitentiary at the Walnut Street Jail. This insti-
tution served as the model for what became known as the Pennsylvania sys-
tem, thus setting the stage for using incarceration as a form of punishment.
The Auburn or New York system of incarceration emerged next in the United
States. This method of imprisonment, which involved the use of corporal
punishment and hard labor, was adopted by many states as a clear alternative
to reliance on capital punishment.
As new ideas about punishment began to take hold along with the build-
ing of more prisons, the 20th century saw a constant decline in the number
of executions in America. Between 1930 and 1967, 3,859 persons were put
to death by state and federal authorities. The years 1935 and 1936 were peak
years, with approximately 200 executions each year. An average of 128 per-
sons were executed annually during the 1940s, 72 during the 1950s, and 19
during the 1960s.20 This decline in executions led many to believe that, like
the European countries, the United States would ultimately cease to apply
Crime and Justice Issues 303

the death penalty either by law or de facto through lack of use.21 However,
this has not been the case. After the U.S. Supreme Court reaffirmed the con-
stitutionality of capital punishment in Gregg v. Georgia, 428 U.S. 153 (1976),
executions resumed. Since this landmark case, over 700 persons have been
executed in the United States, most occurring in the southern states.
Starting in 2010, there was a decrease in the number of persons exe-
cuted by the states each year. It appears that public support for capital
punishment is decreasing, and the states have reduced its use for finan-
cial reasons.

Imprisonment

The U.S. prison population has quadrupled in the past 30 years. In 1980,
the total prison population was 320,000. At year end 2011, 1,598,780 were
incarcerated in federal and state prisons. The people behind bars were held
as follows:22

• 1,598,780 in state and federal prisons

• 18,394 in territorial prisons

Between 2010 and 2011, the imprisonment rate or the number of sen-
tenced prisoners divided by the U.S. resident population times 100,000 actu-
ally declined from 500 to 492 per 100,000 U.S. residents. About 61% of the
sentenced prison population in 2011 was age 39 or younger. About 1 in every
11 black males in their late 20s was serving a sentence of a year or more in a
state or federal prison. The imprisonment rates indicate that about 0.5% of
all white males, more than 3.0% of all black males, and 1.2% of all Hispanic
males were imprisoned in 2011. Between 6.6% and 7.5% of all black males
ages 25 to 39 were imprisoned in 2011, which were the highest imprisonment
rates among the measured sex, race, Hispanic origin, and age groups.
The percentage of all prisoners housed in private prison facilities
increased slightly in 2011 from 7.9% to 8.2% of state and federal inmates.
Texas (18,603 inmates) and Florida (11,827 inmates) had the highest number
of inmates in private prisons.23 The high rate of incarcerating prisoners has
become a major concern with state budgets already seriously lacking funding
throughout the country.
What major factors have contributed to increased correctional popu-
lations? Some scholars suggest that changes in sentencing and parole poli-
cies and practices are the principal cause of increased numbers of people
in prison. One clear example is the effect of drug sentencing policies that
mandate the incarceration of drug manufacturers and dealers. Changes in
parole policies have also increased prison populations by means of reduced
304 Law and Society: An Introduction

tolerance for parole violators, increased rates of revocation and readmission

to prison, and the abolition of parole in some jurisdictions.24

Private Prisons
The use of private firms to operate correctional institutions has steadily
grown in the United States since the mid-1980s. An annual survey of private
adult facilities has shown an increase from about 3,000 prisoners in 1987 to
more than 84,000 state inmates and 27,000 federal inmates in 2006. In fact,
7% of the 1.5 million prisoners in the United States are held in privately oper-
ated prisons.25
In 2000, private corporations ran approximately 6% of all U.S. jails
and prisons. This equates to the management of roughly 112,000 inmates.
Correctional Corporation of America (CCA) is the leading private correc-
tional corporation, with 52% of the private prison market. CCA was founded
in 1983 and manages approximately 68,000 adult and juvenile inmates in 75
facilities under contract or under development and ownership of 45 facili-
ties in the United States, Puerto Rico, and United Kingdom. The next larg-
est private prison organization is Florida-based Wackenhut Corrections
Corporation, which holds about 27% share of the private correctional market.
As many as 20 other private firms are involved in what has been frequently
called “prison for profit.”26
The movement toward privatizing corrections is not supported by all.
Opponents argue that cost reductions to taxpayers can only be achieved by
lowering the standard of care and treatment of prisoners. Inhumane treat-
ment of prisoners in profit-making institutions has been known to happen.
For example, the state of Missouri entered into a 3-year, $6-million contract
for services with Capital Correctional Resources Inc., a private jail-man-
agement company. Between 1995 and 1997, more than 2,000 prisoners were
transported to Brazoria County Detention Center in Angleton, Texas. In
1997, a videotape of a shakedown surfaced, which showed that prisoners were
beaten by guards, shocked with stun guns, and bitten by dogs. Consequently,
the prisoners filed several state and federal lawsuits. A judgment was ren-
dered in a class-action suit, and the inmates were awarded $1.1 million.
Another $800,000 was granted for attorneys’ fees as well as $300,000 to cover
costs for the litigation.

Questions in Review
1. What is the good-faith exception to the exclusionary rule?
2. What are the pros and cons of plea bargaining?
3. What difficulties arise when laws in society specify crimes against
certain people?
Crime and Justice Issues 305

4. Are laws against stalking sufficient in today’s society?

5. Why are you for or against capital punishment in America?
6. Should changes in the law be made to reduce prison crowding?

Endnotes
1. Mapp v. Ohio, 367 U.S. 643 (1961).
2. Rakas v. Illinois, 439 U.S. 128 (1978); Rawlings v. Kentucky, 448 U.S. 98 (1980).
3. New York v. Harris, 495 U.S. 14 (1990).
4. U.S. v. Leon, 468 U.S. 897 (1984).
5. 177 Ariz. 201, 866 P. 2d 869.
6. Arizona v. Evans (93-1660), 514 U.S. 1 (1995).
7. Statistics from the U.S. Sentencing Commission.
8. E.E. Flynn. (1976, May). Turning judges into robots. The Forensic Quarterly,
50(2): 143–149.
9. A. Smith & C. Foley. (2010, September). State statutes governing hate crimes.
Washington, DC: Congressional Research Service.
10. 42 U.S.C. 13981 (1996).
11. Domestic violence, stalking, and antistalking legislation: An annual report to
Congress under the Violence Against Women Act. (2013, March).
12. National Institute of Justice. (1997, November). The crime of stalking: How big is
the problem? Washington, DC: Author.
13. P. Tjaden & N. Thoennes. (2000). Extent, nature, and consequences of intimate
partner violence: Findings from the national violence against women survey (NCJ
181867). Washington, DC: U.S. Department of Justice.
14. The Interstate Stalking Punishment and Prevention Act of 1996 (18 U.S.C. §
2261A, 2261, 2262).
15. M. Puente. (1992, July 21). Legislators tackling the terror of stalking. USA
Today, p. 49.
16. H.A. Bedau. (1982). The death penalty in America. New York, NY: Oxford
University Press.
17. H.A. Bedau. (1982). The death penalty in America. New York, NY: Oxford
University Press.
18. H.A. Bedau. (1982). The death penalty in America. New York, NY: Oxford
University Press.
19. P.E. Mackey. (1976). Voices against death: American opposition to capital punish-
ment, 1787–1975. New York: Burt Franklin & Co., Inc., 1976.
20. U.S. Department of Justice. (1997, December). Bulletin. Washington, DC:
Bureau of Justice Statistics.
21. F. Zimring & G. Hawkins. (1986). Capital punishment and the American agenda.
New York, NY: Cambridge University Press.
22. Bureau of Justice Statistics. (2012, December). Correctional surveys: National
probation data survey, national prisoner statistics, survey of jails, and the
national parole data survey. In Prisoners in 2011 (NCJ 239808). Washington,
DC: Author.
306 Law and Society: An Introduction

23. A. Beck. (2000, August). Prisoners in 1999 (NCJ 183476). Washington, DC: U.S.
Department of Justice, Bureau of Justice Statistics.
24. J. Petersilia. (1999). Parole and prisoner re-entry in the United States. In M.
Tonry & J. Petersilia (Eds.), Prisons, Vol. 26 of M. Tonry (Ed.), Crime and justice:
A review of research. Chicago, IL: University of Chicago Press.
25. W.J. Sabol, T.D. Minton, & P.M. Harrison. (2007). Prison and jail inmates at
midyear 2006. Washington, DC: U.S. Department of Justice, Bureau of Justice
Statistics.
26. G. Gaes. (2008, March). Cost, performance studies look at prison privatization.
National Institute of Justice Journal, 2008(259). Retrieved July 2, 2013, from
http://www.nij.gov/journals/259/prison-privatization.htm
Labor Issues and the
Law
12
Chapter Objectives

After reading this chapter you should be able to

• Explain the key legal issues in the relationship between employees

and employers
• Define the current government labor policies
• Provide a brief history of the labor movement in the United States
• Explain the functions of the National Labor Relations Board
• Discuss the requirements of the Labor-Management Reporting and
Disclosure Act of 1959
• Define the concept of federal preemption
• Discuss employers’ and employees’ rights
• Explain the Fair Labor Standards Act
• Discuss the rules regarding employee discrimination and work-
ers’ compensation

Introduction

Probably in no other area of society does law dictate the relationships between
individuals and between companies and individuals than in the area of labor
law. The majority of Americans are employed by a business or governmental
organization. Labor law has a profound effect on all. It is a mirror reflection
of our society.
Prior to the Industrial Revolution, most individuals lived on a farm or
in a small community. Bosses knew their employees by name. The Industrial
Revolution profoundly altered this relationship. Bosses no longer knew their
workers personally and therefore felt little responsibility for them. Most
employees were “at will” employees, meaning that they could be fired without
notice and without cause. The lives of most employees were grim. Our courts
and legislatures gradually realized that employees lacked the ability to bar-
gain with employers on an even basis and that governmental regulation was
needed. As a result of government intervention, the relationships between
employers and employees are now extensively regulated by the law. The law

307
308 Law and Society: An Introduction

sets minimum wages that employers must pay, provides extensive rules and
regulations that the employers must follow, and gives workers many rights
and privileges that were not present in the early years of our country. Labor
law affects every member of our society.

NEW YORK STATE EMPLOYMENT LAWS

KNOWN AS LABOR STANDARDS
The regulatory agency in the state of New York that oversees labor law
is the Division of Labor Standards.1 The Division of Labor Standards
enforces the New York State labor laws that govern

• Minimum wage
• Hours of work
• Child labor
• Payment of wages and wage supplements
• Industrial homework
• Apparel industry registration
• Registration of professional employer organizations
• Farm labor

The division also enforces the Employment Agency Law outside New
York City. This law falls under Article 11 of the General Business Law.

• Wage and hour law

• Payment of tips received by credit card and cash
• Child labor
• Apparel industry
• Farm labor
• Licenses, permits, certifications, and registrations
• Professional employer organizations
• Mandatory overtime for nurses

Governmental Labor Policies

As industrialization spread across America during the 19th century, fac-

tory workers found that employment conditions became unbearable and
that their wages were inadequate. Workers, many of whom were women and
children, worked 60 to 70 hours per week and oftentimes more. For many,
these hours were spent standing alongside assembly lines in suffocating,
dimly lit factories, performing monotonous yet dangerous work with heavy
Labor Issues and the Law 309

machinery. Other workers labored over solitary tasks and were paid piece-
meal. Conditions in the coal mines were equally oppressive. Because of these
intolerable conditions, workers attempted to band together into associations
and unions in order to press for higher pay and better working conditions.
Most state courts, who were favorable to the manufacturers and mine own-
ers, regarded these coordinated efforts by workers as criminal conspiracies.
In 1842, the Massachusetts Supreme Court was the first state high court to
reject the use of criminal law to prevent worker organizations. The court ruled
that workers could join together for legitimate economic goals and that their
actions would become illegal only if they used illegal means to achieve the goals.2
As other state courts followed the lead of the Massachusetts court, employers
and mine owners then turned to civil lawsuits to curtail union activities
In 1890, the Sherman Act was passed by the U.S. Congress. The Sherman
Act outlawed monopolies and other combinations of actions that tended to
restrain trade. The courts, being generally unfriendly to workers, relied on
the act to issue antistrike orders by declaring that strikes and labor associa-
tions illegally restrained trade.
During the Great Depression, which started in 1929, public sympathy
shifted to the workers. Legislatures reacting to public opinion began to take
steps to protect the rights of workers. Accordingly, the Norris-LaGuardia Act
was passed in 1932. This act prohibited federal courts from issuing injunc-
tions in nonviolent labor disputes. No longer could employers and mine
owners obtain an injunction by merely claiming that the union was plan-
ning or conducting a strike. Congress, in declaring that workers should be
permitted to organize unions and to use their collective power to achieve
legitimate economic ends, established a national policy of promoting collec-
tive bargaining between employers and employees. This policy, which still
prevails today, led to explosive growth in labor union membership in the
1940s. The term collective bargaining, when used in situations involving labor
issues, refers to negotiations between an employer and a group of employees,
in most cases a union, to form a work contract between the employer and the
group of employees.

National Labor Relations Act

Perhaps the most important piece of labor legislation passed by the U.S.
Congress was the Wagner Act, which is also known as the National Labor
Relations Act (NLRA) of 1935. The stated goal of the NLRA was establishment
and maintenance of industrial peace in order to preserve the flow of com-
merce. The act protected the rights of workers to form unions and encour-
aged management and unions to bargain collectively and productively. The
cornerstone of the act is Section 7, which guarantees employees the right to
310 Law and Society: An Introduction

organize and join unions, to bargain collectively through representatives of

their own choosing, and to engage in concerted activities.
Section 8 established the concept of an unfair labor practice (ULP). That
section made it an ULP for an employer to

• Interfere with union organizing efforts

• Dominate or interfere with any union
• Discriminate against a union member
• Refuse to bargain collectively with a union

The NLRA also established the National Labor Relations Board

(NLRB). The purpose of the NLRB was to administer and interpret
the NLRA and to adjudicate labor cases. The board has five members
appointed by the president and approved by the Senate. The Board makes
final agency decisions about representation and ULP cases. The NLRB has
two primary tasks:

• Representation: The board decides whether a particular union is

entitled to represent a group of employees.
• Adjudication: The board adjudicates claims by either workers or
employers that the other side has committed an unfair labor prac-
tice. The board, however, does not have any enforcement power. If
it appears that the losing party is not accepting a board’s ruling, the
board must appeal to the U.S. Court of Appeals to obtain a court
order to enforce its order.

After the passage of the NLRA and throughout the 1930s and 1940s, the
unions grew in size and power. Strikes and work stoppages became common.
Employers complained of union abuse. Congress responded by adopting the
Taft-Hartley Act, also known as the Labor-Management Relations Act of
1947. This act was designed to curb union abuses. It amended the NLRA
to outlaw certain union acts and to make those selected acts as unfair labor
practices. Thus, it became a ULP for a union to

• Interfere with employees who are exercising their labor rights under
Section 7 of the NLRA
• Encourage an employer to discriminate against a particular employee
because of a union dispute with the employee
• Refuse to bargain collectively with an employer
• Engage in an illegal strike or boycott, particularly secondary boycotts.

In a continuing move to prevent union abuses, Congress also passed the

Labor-Management Reporting and Disclosure Act of 1959. That act requires
Labor Issues and the Law 311

financial disclosures by union leaders and guarantees union members free

speech and fair elections.

Present State of Labor Unions

Labor unions reached their high point in membership in the late 1940s and
early 1950s. At that time, about 30% of the workforce belonged to a union.
Today that percentage is less than 15%. Many employers now contend that
unions are no longer needed in modern America. Union supporters contend
that while the pay of CEOs has soared, the wages of the average worker, in
real dollars, have fallen since the 1970s.

Federal Preemption
All states have some form of labor statutes, most of which are patterned after
the federal statutes. There are three general types of state labor relations stat-
utes. One type is under state antitrust statutes, and it bans or limits union
activities in those areas not covered by federal statutes. Another type sets up
comprehensive labor relations frameworks similar to the NLRA for those
employment cases not covered by federal statutes. Another type of state stat-
utes covers only a narrow range of activities. An example of the latter type
is where several states have enacted a statute that bans picketing and boy-
cotting entirely in those areas not covered by federal labor law statutes. In
situations that are involved in interstate commerce or that affect interstate
commerce, the federal law applies. In situations not covered by federal law,
states labor statutes then apply. The doctrine of “preemption” provides that
states have no jurisdiction to regulate issues or practices that are governed
by federal law. Preemption clearly applies in labor issues that involve inter-
state commerce, i.e., commerce that flows across state lines. Since most of
the federal labor statutes are very comprehensive and indicate a desire by
the federal government to govern labor issues and establish uniform poli-
cies, and because most involve interstate commerce, in most cases federal
law applies.

Exclusivity
Under Section 9 of the NLRA, a validly recognized union is the exclusive
representative of all employees in a bargaining unit. The key issues under
Section 9 are

• Which organization is the validly recognized union

• What constitutes the bargaining unit
312 Law and Society: An Introduction

Once a union is selected as the recognized union, only that union has the right
to bargain on behalf of the employees in a designated unit. The union must bar-
gain for all employees within the unit, even those who are not union members.
Generally, a union’s efforts to become the recognized union involve the
following pattern: a campaign, obtaining authorization cards, recognition,
petition, and finally election. The campaign starts when union organizers talk
with employees and interest them in forming a union. Union organizers then
obtain authorization cards from employees. The authorization cards state that
the particular workers who signed the cards authorize the union to be their
exclusive bargaining agent. After the union obtains authorization cards from
a sizeable number of the employees, the union may ask the employer to recog-
nize it as the exclusive representative for the bargaining unit. If the employer
refuses to recognize the union voluntarily, the union may then petition the
NLRB for an election. If the union has authorization cards from 30% or more
of the employees, the regional office of the NLRB will normally order an elec-
tion. The election will be supervised by the NLRB. If the union obtains more
than 50% of the workers’ votes at the election, then it will be designated by the
NLRB as the recognized union for that bargaining unit.
Often the question of what constitutes a bargaining unit is complex. To
be a bargaining unit, the employees must share a community of interest. For
example, attorneys and janitors would not be in the same bargaining unit. Nor
would truck drivers and payroll clerks be considered to share a community of
interest. Generally, security guards cannot be of the same bargaining unit as
other employees because the security guards are required to protect company
property, which includes preventing other employees from stealing from the
company. Confidential employees and managers may not be in the same bar-
gaining unit as other employees. Confidential employees are employees who
work so closely with executives of the company that it would be unfair to allow
them to participate in a union with other employees. For example, the personal
secretary to the CEO would be considered as a confidential employee.
Once the NLRB has excluded managerial and confidential employees,
the board then looks at various criteria to determine which employees should
be considered as one bargaining unit. To be a bargaining unit, there must be
a “community of interest” among the employees. The criteria used to deter-
mine if there is a community of interest include the following:

• Are the employees roughly equal in pay and benefits, and the meth-
ods of computing both? For example, employees paid on a commis-
sion would not normally be grouped with employees who are paid
hourly wages.
• Do the employees have similar total hours per week and type of work?
• Are similar skills and training required by the employees?
• Is there a previous bargaining history of the employees?
Labor Issues and the Law 313

DO GRADUATE STUDENTS HAVE THE RIGHT

TO ORGANIZE A LABOR UNION?
The University of Illinois graduate students attempted to organize a
labor union. A state labor relations board said that the graduate stu-
dents did not have the right to form a labor union. An Illinois Court of
Appeals for the First District overruled the board’s decision. The court
said that the board had wrongly qualified students’ jobs as teaching
assistants and research assistants as “financial aid.” The court held that
the proper test to determine if the students should be excluded from
organizing is whether or not the students’ jobs are so closely related to
their own academic roles that collective bargaining would be detrimen-
tal to the educational process.3

Employers and Employee Rights

The NLRA guarantees employees the right to talk among themselves about
forming a union, to hand out union literature, and to join a union. Employees
may urge other employees to sign authorization cards or join the union.
The employer may restrict organizing discussions if the discussions
interfere with discipline or production. For example, a worker has no right to
leave his or her assigned duties during working hours to discuss union activi-
ties with other employees. An employer may tell employees why it thinks that
union membership would not be beneficial to the employees. The employer’s
efforts must be limited to explanation and advocacy. While the employer
may vigorously present anti-union views to its employees, the employer may
not use threats or promise of benefits to defeat a union organizing effort. For
example, it would be an ULP for an employer to promise a pay raise if the
union organizing efforts are voted down.

Bargaining Subjects
The general goal of collective bargaining is to obtain a labor contract between
the employer and the union containing benefits for the employees. The labor
contract is also known as a collective bargaining agreement. A frequent
question is what issues are employers required to bargain with the union
about. First, almost any issues can be the subject of collecting bargaining, but
employers are only required to bargain on mandatory issues. Generally, the
mandatory issues are wages, benefits, work rules, working hours, and condi-
tions of employment. Nonmandatory issues include product design, adver-
tising, sales, financing, corporate organization, and location of employment
314 Law and Society: An Introduction

facilities. Employers are not required to bargain over the issue of closing a
plant, but may be required to bargain with the union on the effects of the
closing. In one case, the Boeing Company of Seattle started subcontracting
out its work. The union contended that this was a mandatory bargaining
issue. The court held that while Boeing had a right to increase its subcon-
tracting, that the issue was subject to mandatory bargaining.4
The union and the employer generally will seek to insert in the collec-
tive bargaining agreement clauses that make their positions more secure. For
example, the employer may insist on a “no strike” agreement in the contract.
This means that during the course of the labor contract that the union will
not strike. In return, the union usually insists on a “no lockout” clause, which
means that the employer will not prevent union members from working dur-
ing a labor dispute. No strike/no lockout clauses are legal.
“Hot cargo clauses” are illegal and may not be the subject of bargaining.
A hot cargo clause is one where the employer agrees not to do business with
a specific company. For example, if the union is having problems with one
company, the union may not bargain with other companies not to conduct
business with the company involved in the dispute.
While both the union and the employer have a right and a duty to bar-
gain in good faith and with an open mind, they are not obligated to reach an
agreement. As long as both sides make a reasonable effort to reach an agree-
ment, they have complied with the requirements to bargain. If the employer
rejects a union demand for financial reasons, the employer must allow the
union to inspect its books.
When it is clear that an agreement cannot be reached, a “bargaining to
impasse” results. Once an impasse results, then the employer may implement
new policies or change wages, hours, or terms of employment. The employer
in implementing the new terms may only implement terms that were pro-
posed during the collective bargaining. For example, Major League Baseball’s
agreement with the major league baseball players expired in December 1993.
The players and owners bargained throughout the first eight months of 1994
and failed to reach an agreement. In August 1994, the players struck, thus
ending the season. The owners and the union continued to bargain until
December 1994, at which time the owners unilaterally imposed a salary
cap and changed the aspects of “free agency.” In 1995, a federal court ruled
that the owners had violated the NLRA by imposing new rules concerning
mandatory subjects. The owners were then required to restore the original
contract and the players returned to the playing field.5 Later, a collective bar-
gaining agreement was reached between the owners and the players.
Most collective bargaining agreements have provisions for the enforce-
ment of the terms of the agreement. In most cases, the employer or the union
must enforce the agreement through the grievance-arbitration process.
Once an arbitrator issues a ruling, the ruling may then be enforced in a court
Labor Issues and the Law 315

action. The courts will generally refuse to enforce an arbitrator’s award only
when it is contrary to public policy.

Right-to-Work Laws and Unions

The NLRA prohibits unions from bargaining for a closed shop. A closed union
shop is one where the employer must hire only union members. The NLRA
provides that states may prohibit certain union security agreements that are
otherwise valid under federal law. Union security agreements that may be
prohibited by state law include those agreements known as union or agency
agreements. In most states, the union and the employer may agree on “union”
or “agency” shops. A union shop is one where membership in the union is
required. In a union shop, the employer retains the right to hire anyone, but
all new hires must then join the union. Generally, the new employee has a
period of time, about 30 days, before union membership is required. If the
new employee objects to union membership for personal, religious, or political
reasons, the employee is not required to join the union, but must pay dues. An
agency shop is one where the new employee is not required to join the union,
but he or she must pay union dues. Some states, especially in the South, have
right-to-work laws, which means that union and agency shops are illegal.

MICHIGAN’S RIGHT-TO-WORK LAW

What right-to-work laws really are about is giving you the right to work
for less money.

President Obama in a public speech at the Daimler Detroit Diesel

plant in Redford, Michigan, on December 10, 2012

The term right to work (RTW) is a misnomer. RTW does not regulate
the right of a person to seek and accept gainful employment. RTW laws
prohibit a labor union and employer from negotiating union security
clauses. Union security clauses are contract provisions that address the
collection of union dues. In non-RTW states, such as Michigan, the
parties are free to negotiate a range of union security options. Unions
typically prefer “union shop” terms that require every person benefiting
from union representation to pay union dues. Supporters of right-to-
work laws contend that RTW helps attract more businesses to a state.
On December 11, 2012, Michigan enacted its right-to-work laws
for both private sector and public sector employers. The laws make it
unlawful to require an employee to become a union member or to pay
316 Law and Society: An Introduction

union dues or fees as a condition of employment. Michigan, which at

one time was considered as the birthplace of the modern labor move-
ment, has become a so-called right-to-work state. It was in Flint,
Michigan, where workers sat down in a General Motors plant in the
late 1930s and emboldened the industrial labor movement that many
individuals claim gave birth to the American middle class. The state
was also the birthplace of the United Auto Workers. As of January 2013,
23 states had right-to-work laws on the books, along with some other
states—mostly in the Northeast—where such laws were being consid-
ered by state legislatures.

SHOULD PUBLIC EMPLOYEES HAVE A RIGHT

TO COLLECTIVE BARGAINING?
Wisconsin may not be a right-to-work state, but a controversial 2011
Wisconsin law (Act 10) severely restricted the power of state public-sec-
tor unions and led to a failed attempt to recall Governor Scott Walker.
(Note: Act 10 does not apply to “public safety employees.”6)
Act 10, as the state law is known, denies state public workers the right
to collectively bargain on all issues except base wages, bans employ-
ers from automatically deducting union dues from workers’ paychecks,
and makes it tough to recertify a union. Mary Bell, president of the
Wisconsin Education Association Counsel (WEAC), stated: “Wisconsin
educators are extremely disappointed with the appeals court ruling. Act
10 is a ploy to eliminate workers’ rights to have a voice through their
union—political payback for citizens who didn’t endorse the governor.”
The WEAC was one of the plaintiffs in this case. Governor Walker dis-
agreed and stated: “[The] court ruling is a victory for Wisconsin tax-
payers. The provisions contained in Act 10, which have been upheld in
federal court, were vital in balancing Wisconsin’s $3.6 billion budget
deficit without increasing taxes, without massive public employee lay-
offs, and without cuts to programs like Medicaid.”7
Should state employees have the right to collectively bargain about their
working conditions?

Concerted Action

Concerted action is a phrase that refers to tactics that union members take in
unison in order to obtain a bargaining advantage. Many types of concerted
actions are illegal. The two most common concerted actions are strikes and
Labor Issues and the Law 317

picketing. The NLRA guarantees employees the right to peacefully strike

subject to some limitations. For example, a union may not violate a valid
no-strike clause. It is permissible for a union, absent a no-strike clause, to
call a strike to put economic pressure on an employer to engage in collective
bargaining. In most states, public employees are prohibited from striking.
There is no protection for violent strikes. Unless prohibited by contract,
the union may use partial strikes to exert pressure on an employer. A partial
strike is where the union strikes part of the company or for certain periods of
time. A partial strike may be very disruptive to an employer.
Generally, the employer has the right to hire replacement workers
during a strike involving economic issues, e.g., wages, benefits, and work-
ing hours. And after the strike is settled, the employer generally has no
duty to lay off the replacement worker in order to provide a position for a
returning striker. After an economic strike, an employer who hires work-
ers back may not discriminate against the workers who participated in the
strike. If the strike is caused by an ULP by the employer, the employer is
required to rehire the worker and may be required to dismiss the replace-
ment worker.
Unions may generally picket the employer’s work site as long as the pick-
eting is peaceful. A secondary boycott is illegal. A secondary boycott is a
picket line establish against a company that does business with the employer
involved in the labor dispute. For example, the union is involved in a labor
dispute with a shoe company. It is illegal for the union to picket a trucking
company that has a contract with the shoe company.
A lockout refers to the situation where management locks the workers off
from their jobs. Generally, a defensive lockout is legal. For example, the com-
pany locks out the employees during a labor dispute because the company
has reason to believe that the union members, when admitted to the job site,
will conduct a sit-down strike. An offensive lockout is generally illegal unless
the parties have reached an impasse in the collective bargaining.

Union Affairs
When a union is selected as the exclusive bargaining power for a group of
employees, the union has a duty to treat each employee fairly. The duty of
fair representation requires that a union represent all members fairly, impar-
tially, and in good faith. The union may not favor some employees over oth-
ers. In addition, a union may not discriminate against a member based on
race, sex, national origin, religion, etc. A union may discipline a member
for violation of valid union rules, such as engaging in an illegal strike or sit-
down. The union may not discipline a member for criticizing union officials,
for protected speech, or for attempting to replace union leadership through
valid elections.
318 Law and Society: An Introduction

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA), enacted in 1938, regulates wages and
restricts child labor. The act requires time-and-a-half pay for nonexempt
employees who work more than 40 hours per week. The act does not limit the
number of hours that adult employees can be forced to work, only that those
hours worked in excess of 40 hours per week must be paid overtime pay.
The wage provisions of the act do not apply to “exempt employees,” i.e.,
managerial, administrative, or professional employees. Employers are free to
require exempt employees to work more than 40 hours per week without hav-
ing to pay time-and-a-half. For example, most law firms work their new asso-
ciate attorneys far longer than 40 hours per week without any additional pay.
The FLSA prohibits “excessive child labor.” Most states have extensive
statutes that regulate the hours and types of labor that children under 16
may be worked. Generally, children under the age of 14 may be employed
only in agriculture and entertainment. Children under 16 years of age are
generally permitted to work only limited hours and only during nonschool
time. Children are also generally restricted from working in hazardous jobs.
The Supreme Court has stated that state employees are not covered
by the FLSA. The Court held that if a state has not waived its immunity, it
cannot be sued in federal court unless there is (a) an express statement of
intent by Congress and (b) a valid exercise of power under the Fourteenth
Amendment. Congress cannot revoke states’ immunity when the statute is
based on the Commerce Clause.8 The act was passed under the authority
granted Congress by the Commerce Clause and thus is subject to the restric-
tions of the Eleventh Amendment.

THE TRIANGLE SHIRTWAIST FIRE, MARCH 25, 1911

At 4:45 p.m. on that Saturday afternoon, the workday was over for
about 275 girls who worked for the Triangle Shirtwaist Company in
lower Manhattan, City of New York. The young girls worked on the
8th, 9th, and 10th floors making $6 a week assembling women’s tailored
shirts. As the girls were gathering their belongings and putting on their
coats, someone yelled “Fire!” The fire quickly raced out of control. The
foreman and male tailors attempted to douse it with water buckets. The
275 girls panicked in desperation and attempted to take the two pas-
senger elevators and the stairways at one end of the loft. Unfortunately,
the doors to the stairways opened in rather than out, and the crush of
young women at the door slammed them shut. In addition, the doors
to the stairways on the 9th floor were locked. The elevator operators of
the two elevators brought the elevators to the 8th floor, and the girls
Labor Issues and the Law 319

tried frantically to get on. The elevators held only 10. The cars made
several trips to bring a few havoc-stricken passengers down to street
level. Finally, the girls on the 8th floor were able to open the doors at the
stairways, and many raced to safety down the stairs, many with clothes
almost completely burned from their bodies. Many girls tried to jump
to safety. The firemen held blankets and attempted to catch them. Most
were unsuccessful.
People on the street noticed the fire. They then saw what they assumed
were bolts of cloth flying out the windows. One bystander remarked
that Isaac Harris, the owner, was trying to save his best material. As the
objects hit the ground, the crowd realized that it was not bolts of cloth,
but bodies that were hitting the ground.
When Fire Engine Company 72 arrived (from 6 blocks away), they
had trouble maneuvering their hose wagon because of the bodies lying
in the street. A total of 146 young girls died in the fire. Most of the casu-
alties were found on the 9th floor, and a considerable portion of those
who had jumped also came from the 9th floor. Firemen later found 25
charred bodies on top of the elevator cars and 19 dead bodies melted
against the locked doors on the 9th floor.
The origin of the fire is in question. Many think that it was started
by one of the male tailors who was smoking and threw his cigarette
onto the clutter-filled floor. The owners, Isaac Harris and Max Blanck,
were acquitted of any wrongdoing, specifically regarding whether the
doors on the west side were locked or not. Twenty-three families sued
Harris and Blanck. The families recovered $75 each. As a result of the
fire, the New York legislature created a commission headed by Senator
Robert F. Wagner, Alfred E. Smith, and Samuel Gompers to investigate
the conditions in the city’s sweatshops. The investigation resulted in the
present labor laws protecting factory workers in health, disability, and
fire prevention. Now all factory doors are required to open outward, no
doors are to be locked during working hours, and if there are more than
25 employees, sprinkler systems must be installed. The building still
stands and is now part of New York University.9

Discrimination

The primary basis of present-day legislation on employment discrimination is

Title VII of the Civil Rights Act of 1964, as amended by later statutes. As a gen-
eral rule, an employer may not discriminate against employees because of sex,
race, national origin, color, or religion. In addition, there are also restrictions
on discrimination based on age if the employee is 40 years of age or older. The
320 Law and Society: An Introduction

first employment discrimination statute passed by the U.S. Congress was the
Equal Pay Act of 1963. That act required that women receive equal pay based
on equal or similar duty assignments. A year later, in 1964, the Civil Rights
Act was passed. Both statutes were based on the Commerce Clause of the
Constitution and therefore do not apply to situations not involving or affect-
ing interstate commerce. All states, however, have their own equal employ-
ment opportunity laws to protect employees in those limited situations not
covered by federal law. The Americans with Disabilities Act was passed in
1990. That act prohibits discrimination against individuals with disabilities.

Equal Employment Opportunity Commission

The Civil Rights Act of 1964 established the Equal Employment Opportunity
Commission (EEOC). Its basic purpose is to administer and enforce Title
VII of the Civil Rights Act. The commission is composed of five members,
not more than three of whom may be from the same political party. Any
employee who feels that he or she has been illegally discriminated against
may file a complaint with a local office of the EEOC. The local office gener-
ally will conduct an investigation and make a recommendation as to whether
relief is needed. The EEOC may file a suit or may give the employee a “right
to sue” letter so that the employee may file a court action. There is also a
general counsel who is responsible for the conduct of all litigation involving
discrimination issues.

Pregnancy
The U.S. Supreme Court, in General Electric Co. v. Gilbert,10 decided that dis-
crimination based on the fact of pregnancy was not included under the pro-
tection against sexual bias. Now, however, firing a woman who is pregnant
may be a form of sexual discrimination under the Pregnancy Discrimination
Act of 1978. Even requiring a pregnant woman to take a leave of absence in
the last 2 months of her pregnancy may be a form of sexual discrimination,
since the physical strain of the pregnancy varies from woman to woman and
with the type of employment involved. Establishing definite time periods
when a pregnant woman must take a leave of absence is frowned on by the
courts. The general rule is to allow the woman and her doctor to decide when
during the course of pregnancy it would be best for her to stop working and
when it would be safe for her return to work. The act requires employers to
treat pregnancy and medical problems related to illnesses on an equal basis
with all other medical conditions.
Labor Issues and the Law 321

Age Discrimination
The 1967 Age Discrimination Act is the basic protection that employees over
the age of 40 years have against discrimination based on their age. The act
also protects workers against mandatory retirement in most occupations. An
employer may not force an employee to retire before the employee reaches
70 years of age except in cases based on safety considerations and in the case
of certain executives who will receive more than a set amount in retirement.
Except for the fact that, in some cases, an employee may be forced to retire,
employees over the age of 70 are still protected against employment discrimi-
nation because of their age.

Reverse Discrimination
The Civil Rights Act protects not only minority groups, but all groups
in the protected categories from illegal employment discrimination. For
example, in the McDonald v. Santa Fe Trail Transportation case,11 three
employees—one black and two white—were accused of stealing merchan-
dise from a shipment. The employer fired the two white employees and
not the black employee. The Court found that, since all three were equally
involved, firing the white employees and not the black employee was dis-
criminatory toward the discharged white employees. Presently, there is
an issue over whether affirmative action programs should be permitted.
Affirmative action programs are designed to give minorities a preference
based on the concept of affirmative action to make up for past discrimi-
nation. One affirmative action issue that has not been finally decided
by the courts is whether admission programs in institutions of higher
education may consider race in any manner in deciding which students
to admit.

EMPLOYEES’ EMAIL
Laurie Restuccia and Neil LoRe worked for Burk Technologies, a
Boston-area electronics manufacturer. They thought that their email at
the company was private. Each had their own passwords to get into the
system, and the company never warned them that their emails could be
monitored. They did not know that the company maintained a backup
system that allowed the company to retrieve messages that employ-
ees thought were deleted. A supervisor using a supervisor’s password
accessed their email and discovered an extensive collection of movie
reviews, travel plans, artwork, and office gossip. The personal email
322 Law and Society: An Introduction

between the two employees totaled 40 full pages over a 4-month period.
The company fired both employees.
The two employees sued the company for a violation of their right of
privacy. After a 2-week jury trial, the jury ruled that any privacy interest
the employees may have had was outweighed by the company’s interest
in monitoring their productivity. One point stressed by the company
in defense of the suit was that unlike regular mail, which is transmit-
ted directly from person to person, email involved a middleman, the
employer’s computer network. The company contended that sending
an email isn’t like sending a letter in a sealed envelope; it is more like
posting a note on someone’s desk in plain view.12

Workers’ Compensation

Workers’ compensation plans are designed to ensure that workers receive

payment for injuries incurred at work. All states have some form of work-
ers’ compensation statutes. Prior to workers’ compensation, if an employee
was injured on the job, he or she was required to sue the employer to get any
recovery. If the worker was at fault in any manner, generally the worker could
not recover. Workers’ compensation is a form of insurance to protect both
employers and employees. Generally, employers are protected because of
the protections against being sued for an employee’s injuries. Employees are
protected in that if they are injured in a work-related incident, they receive
medical repayments and a percentage of their wages during the period of
recovery. The payments received by a worker under the workers’ compensa-
tion programs will be less than would generally be received in an award by
court, but the worker trades that for the certainty of recovery. The payments
are funded either by the employer buying private insurance or by a special
tax imposed on employers.

CAN A WORKER DEMAND THAT A COWORKER

BE PRESENT AT A DISCIPLINARY MEETING?
The NLRB has ruled that workers can demand that a coworker be pres-
ent at a disciplinary meeting and that the coworker does not need to
be a union member. Accordingly, an employer who fires or disciplines
an employee for refusing to meet alone may be guilty of an unfair
labor practice and may be required to reinstate an employee with back
pay. The case involved two employees at an epilepsy foundation who
were involved with a project about teenagers with epilepsy. One of the
Labor Issues and the Law 323

employees wrote a memo stating that their supervisor was no longer

needed on the project. The executive director told one of the employees
that she wanted to meet with him and the supervisor. The employee
requested the presence of another worker, stating that he felt intimi-
dated by the supervisor. The director refused the request and fired the
employee.13

Questions in Review
1. When do employees have the right to strike?
2. Explain the meaning of an impasse.
3. Explain the effects of the Industrial Revolutions on labor law.
4. What effect did the Sherman Act have on the rights of employees to
organize?
5. What facts support the statement that the NLRA was the most impor-
tant piece of labor legislation passed by the federal government?
6. What is the present national labor policy regarding the right to col-
lective bargaining?
7. What constitutes collective bargaining?
8. What are the purposes and functions of the NLRB?
9. What are the purposes and functions of the EEOC?
10. Explain the concept of federal preemption.

Endnotes
1. New York State Department of Labor. (n.d.). Employment laws known as labor
standards. Retrieved July 2, 2013, from http://www.labor.state.ny.us/workerpro-
tection/laborstandards/labor_standards.shtm
2. Commonwealth v. Hunt, 45 Mass.111 (1842).
3. Lawyers Weekly USA. (2000, August 7). 2000 LWUSA 701.
4. Boeing strike is over outside work. (1995, October 14). New York Times, p. 7.
5. Silverman v. Major League Baseball Player Relations Committee, 1995 U.S. App.
LEXIS 8163 (2d Cir. 1995).
6. Wisconsin Education Association Council et al. v. Walker et al., 7th U.S. Circuit
Court of Appeals, Nos. 12-1854, 12-2011, and 12-2058 (decided January 21,
2013).
7. J. Beck. (2013, January 21). 7th Circuit upholds constitutionality of controversial
Wisconsin union law. Retrieved July 2, 2013, from http://www.insidecounsel.
com/2013/01/21/7th-circuit-upholds-constitutionality-of-controver
8. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, No.
98-436, June 23, 1999, as reported in Lawyers Weekly USA, 9916003.
9. P. Rosa. (n.d.). The Triangle Shirtwaist fire. Retrieved July 2, 2013, from www.
historybuff.com/library/refshirtwaist.html
324 Law and Society: An Introduction

10. 429 U.S. 125 (1976)

11. 427 U.S. 273 (1976)
12. Lawyers Weekly USA. (2000, February 21). 2000 LWUSA 176.
13. Lawyers Weekly USA. (2000, August 7). 2000 LWUSA 689.
FORENSICS AND CRIMINAL JUSTICE

Law and Society

An Introduction
In recent years, legal studies courses have increased the focus on contemporary social issues as
part of the curriculum. Law and Society: An Introduction discusses the interface between these
two institutions and encourages students in the development of new insights on the topic.
The book begins by introducing definitions, classifications, and the concept of the “rule of law.”
It then explores:

• Principal legal systems, including common law, civil law, Islamic and socialist systems,
and American Indian law

• Feminist legal theories, critical race theory, and the roles of morality and values in
social control

• The contributions of sociological research and its impact on the law

• Court systems and procedures, the exclusionary rule, and plea bargaining

• The nature and process of legislative, administrative, and judicial lawmaking

• Alternative dispute resolution and international arbitration and mediation

• The law as a mechanism for social changes, such as those brought on by the
1964 Civil Rights Act

• Issues related to the legal profession and professional responsibility

This text eliminates the need for a separate reader by also discussing controversial legal topics—
including affirmative action, education, the death penalty, right to work laws, and abortion.
Each chapter builds on the previous ones and includes concrete examples of the issues involved.
Enhanced by chapter summaries of salient points, review questions, and practical exercises, the
book is designed to encourage students in the development of new insights into the relationships
between law and society.

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