POSSIBLE EXAMPLES OF SOCIOLOGY OF LAW RESEARCH

1. POSSIBLE EXAMPLES OF SOCIOLOGY OF LAW RESEARCH Donald Black: The Behavior of Law. (New York: Academic Press, 1976.) See also: M. P. Baumgartner, Ed. The Social Organization of Law. (New York, Academic Press, 1998.) SOC/CRJ 5810 Prof. M.C. Sengstock http://users.wowway.com/~marycay910

2. BLACK: 3 SOCIOLOGICAL QUESTIONS ON ANY SUBJECT 1. What Varies? 2. What Predicts? 3. Who Matters?

3. Q. 1: WHAT VARIES? • Quantity of Law • Style of Law

4. WHAT VARIES: QUANTITY OF LAW • Number of Legal Officials – How Many Judges? ..Police? …Prosecutors? • Rates of Litigation – How Many Civil Suits Filed? …How Many Criminal Defendants Charged? • Reports to Police – How Many? What Is Done with Them? • Number of Persons in Prison? (U.S. is Tops!) • (vs. Decisions NOT to Report, File Suit, etc.)

5. WHAT VARIES: STYLE OF LAW • “Language & Logic by Which [Law] Defined & responds to Deviant Behavior.” (D. Black) • Penal: Punish Offenders – C.J. System • Compensatory: Focuses on Offender’s Debt to Victim – Receive Compensation – Civil Law [1 & 2: Zero Sum Games – 1 Winner + 1 Loser] • Conciliatory – Focuses on Conflict – Goal: Restore Harmony; Compromise Preferred [Considers One-Sided Payments Counterproductive] • Therapeutic – Offenders Really Victims – Treatable Abnormalities

6. Q. 2: WHAT PREDICTS? • Social Stratification • Social Morphology (Form, Structure) • Culture (Expressive Activities, Cultural Patterns) • Organization • Other Social Control

7. WHAT PREDICTS? SOCIAL STRATIFICATION • Unequal Distribution (Wealth, Power, Advantage) – Black’s Principles re Law Occurs: • Most Law Is Used When: • Low Status Offends High Status > • High Status Offends High Status > • Low Status Offend Low Status > • High Status Offend Low Status

8. WHAT PREDICTS: SOCIAL MORPHOLOGY (FORM, STRUCTURE) • Patterns of Association/Connection • Degree to Which Offender & Victim Were Integrated into Society (Good Citizen, Employed) • Kind of Prior Relationship (EX: Family Violence) More Law When: • No Prior Relationship … or: • Marginal Person Offends Integrated Person > • Participants Are Both Integrated People > • Well-Integrated Person Offends Marginal Person

9. WHAT PREDICTS: CULTURE (EXPRESSIVE, CULTURAL PATTERNS) • Law Is More Involved – or More Severe – When Opponents Are Culturally Dissimilar • Cultural Minority Person Offends Conventional Culture Person > • 2 Minority Culture Persons Are Involved > • Conventional Culture Person Offends Minority Culture Person

10. WHAT PREDICTS: ORGANIZATION • Organizations Are “Legal Persons” • Law Is Greater When: • Organizations Complain Against Individuals > • Organizations Complain Re Organizations > • Individuals Complain Re Other Individuals > • Individuals Complain Re Organizations

11. WHAT PREDICTS: OTHER SOCIAL CONTROL • Law Decreases When Other Forms of Social Control Are Available … • People Are Less Likely to Invoke Law … & Legal Officials Are Less Severe: Most Law When: • Disreputable Person vs. Good Reputation > • 2 Morally Upstanding People vs. Each Other > • 2 Disreputable People vs. Each Other > • High Status Person Offends Disreputable Person

12. Q 3: WHO MATTERS? People Bring Their Own Social Identities to Legal Cases: • Principals • Supporters • Legal Officials

13. WHO MATTERS: PRINCIPALS • Defendants, Plaintiffs, Respondents, Complainants, Victims, Witnesses • “Social Structure of a Case Depends on the Identity of Both Accuser & Accused & Characteristics in Relation to Each Other” (Baumgartner, p. 13) • EX: Rape & Capital Cases: Major Differences Occur when Low Status Offends High Status • Offender Status Alone Shows Little

14. WHO MATTERS: SUPPORTERS • Who Supports the Case? • EX: Status of Lawyers, Amicus Curiae Briefs, What Kind of Witnesses Can Principals Gather to Support Them? • Do Well Positioned Persons Attract Low-Positioned Supporters -- & Vice Versa?

15. WHO MATTERS: LEGAL OFFICIALS • Judges, Prosecutors, Police, etc. • Theory of English/American Legal System: • All Officials in Each Category Are Similar • They Really WERE Then – All White, Well-Off, Male • Authoritativeness Increases with Social Distance from Litigants … • Low Class: Convict & Punish, Rule Against • High Status: Order Conciliation (Family Violence) • When Status Differs, Officials Favor Those Closer to Them in Status

16. SOCIOLOGICAL VIEWS RETRADITIONAL LEGAL CONCEPTS Discretion Reasonable Person “Rule of Law” vs. “Rule of Men”

17. EVALUATING “DISCRETION” • Deciding Cases “According to Dictates of Own Judgment & Conscience, Not Controlled by Judgment of Others (Black’s Law Dictionary, 1968) • Is This True? Is it Possible? • Outcomes Unpredictable in Terms of Statutes • ARE Predictable in Terms of Social Factors! • Social Influences Not Exceptional – Ubiquitous! • Cases Almost Never Decided Solely in Terms of Technically relevant Criteria!

18. EVALUATING “REASONABLE PERSON” • “Responsible, Knowledgeable, Morally Sensitive, Good Citizen” Defines Legal Issues • Does This Wise, Objective Person Exist? • Or Do People Always Vary Across Gender, Race, Income, Education, Ethnicity, etc.? • Does It Ever Make Sense to Assume a “Reasonable, Objective Person”? • Or Is Everyone Always Influenced by Culture?

19. EVALUATING“RULE OF LAW” VS. “RULE OF MEN” • Is This a Valid Distinction? • Is Law Really a Confrontation Between the “Morally Wise ” Who Guide Society … • Against an “Unreasonable Offender? • Or Is Law Really an Affair of Human Beings … • With Different Views of Morality … • Who View Various Aspects of Behavior Differently? … Or Perhaps a Little of Both?

20. OVERALL SUMMARY: VIEWS OF D. BLACK & M. BAUMGARTNER • Sociology of Law Can Contribute to Understanding of Law … Through Analysis of: • Growth in Amount of Law … • Changes in the Character of Social Relationships in Society & Legal Structure … • Kinds of Factors Used by Lawyers, Judges • Changes in Societal Traditions & Values, etc. • Can You Think of Other Ways?

21. STATISTICS SUPPORTING BLACK’S THEORY • Law As a “Growth Industry” in the U.S. • “Growth” is a Goal in Many Industries (Recreation, Leisure, Manufacturing) • Not True in Medicine, Law, Education … • Public Resents the Private & Public Costs • But Is Law a Growth Industry? • Black Says We Can Use Sociological Statistics to Find Out (# Lawyers, Law Suits, etc.)

22. LAW AS A GROWTH INDUSTRY: NUMBERS – LAWYERS, LAW SUITS • Black Suggests Measuring Quantity of Law: • # of Lawyers, Law Suits, etc. • U.S. : “More Law” Than Most Other Nations

23. U.S. LAWYERS vs. OTHER NATIONS Number of Lawyers/Population Size Japan: 1/ 10,000 Sweden: 1/ 5,200 Germany: 1/ 2,500 England: 1/ 1,400 U.S.: 1/ 320

24. GROWTH IN LAWSUITS FILED • Federal Courts: • 1960: 90,000  1990: 250,000 … 383% Increase • 1977-1989: • Auto Industry Grew 40% • Food Industry Grew 91% • Legal Industry Grew 383% • # Law Suits Since 1960: • Mass: Tripled; Los Angeles: Doubled; NY: 50%

25. MORE LAW SUIT STATS (c. 1990) • Tort Litigation Costs $280 Billion/ Year • Gross Natl Product Reduced 10% in 1980s Due to Costs for “Predatory & Frivolous” Law Suits • Costs Include: Legal Damage Awards, Increased Insurance Premiums, Time Wasted, Non-Manufacture of Some Products Due to Fear of Law Suits • Cost of Litigation: Adds 30% to Step Ladder, 90% to Cost of Medical Vaccine

26. WHY INCREASE IN LITIGATION? • More Attorneys (Know System, Possibilities; Increase Business) • Contingency Fees (No Loss Penalty – v. Britain) • Repeat Players (Not Afraid of System) • Free/Inexpensive Legal Services Available • Not Just Valued for Dispute Resolution • Value for Harassment, Publicity, Delay (Q Will) • Changes in the Law (Change of Venue More Liberal; Easier to File; “Public Rights” Law Suits)

27. 3 CATEGORIES OF REASONS • Social Development • More Complex Society – Less Cultural Agreement • Subjective Cost/Benefit Analysis • “Getting Even” vs. Tangible Benefits • Making a Moral Point (EX: Abortion) • More Legally Actional Behaviors • New Norms  New Possibilities for Controversy (Abortion; Gay Marriage; Medical Marijuana)

28. #1 – SOCIAL DEVELOPMENT • Society Becoming More Complex, Heterogeneous. • Less Acceptance Of Common Set Of Values. • Informal Dispute Resolution No Longer Accepted. • CLAIM: Letting In Too Many Newcomers • BUT: Most People Who Disagree With Ideas Are American-born, Not Immigrants!

29. #2 - SUBJECTIVE COST/BENEFIT ANALYSIS OF LITIGATION: • More Emphasis On Subjective, vs. Objective Benefits Of Litigation. • Objective Issues: Look Solely At The Actual Monetary Costs And Benefits: Likely To Win? How Much? How Much Will It Cost? • Subjective Issues: More Intangible: Desire To Get Even; Create Trouble For Someone? Make Important Moral Point (EX: Oppose Abortion)?

30. #3 - MORE LEGALLY ACTIONAL BEHAVIORS HAVE DEVELOPED • New Norms Have Been Established – Which Raises The Possibility Of Suits In Whole New Areas. • EX 1: Roe V. Wade Generated Whole New Possibilities For Suits To Allow Abortion … • Conversely, Prohibit And Restrict Funding For Abortion • EX 2: Gay Marriage & Legal Rights Doing the Same Thing

31. MORE DATA ON THE BLACK APPROACH Focus On The Issues: • “Reasonable Man” • “Rule Of Law” Approach Through Focus On Roles In The Legal System: • Judges & Their Views • Different Types of Attorney Roles • Juries & Their Selection

32. DOES RULE OF “LAW” REALLY EXIST? • In Other Words, Are There Really “Reasonable Men” … • Who Can Make Law … • Without Reference to Personal Value Positions?

33. EX: JUDGES • There Have Been Numerous Studies of Judges • At Various Levels (Trial, Appellate, Supreme Court) • Q: Do Their Values Influence the Decisions They Make?

34. ANALYSIS OF SUPREME COURT • Justices Divided into Categories: • Liberal – Centrist – Conservative • Liberals: Earl Warren, Hugo Black, Thurgood Marshall, William Douglas • Conservatives: William Rehnquist, Samuel Alito, Clarence Thomas • Legal Interpretations Based on Personal Values • Emphasis is Different: • Protect Individuals’ Rights vs. Rights of Society • EX: Rights of Offenders vs. Rights of Police • Rights of Corporations vs. Individual Workers

35. EFFECT OF VALUES ON DECISIONS • Child Custody Cases: • Pt. Huron Judge (c. 1970s): Custody of Bi-racial Child of Mentally Ill Ex-Wife • Nebraska Judge: Custody of Child – to “Hippie” Father or Nebraska Grandparents • Macomb County Judge: Student Mother & Baby Sitter vs. Father & Grandmother

36. IMPACT OF TEMPERAMENT ON DECISIONS • Judges Preside Over Very Tense Situations • Principals Are Very Upset, Excitable • Can an Equally Excitable Judge Keep Control? • EX: “Chicago 7[8]” Trial • Riots at 1968 Democratic Convention – Goal: Process – Protest Johnson Vietnam Policies • Judge Julius Hoffman Got Equally Upset … • Had Bobby Seale Bound, Gagged, Sentenced to 4 Yrs Prison for Contempt (Near Record

37. JUDICIAL ACTIVISM • How Far Should Judges Go to Carry Out Law? • EX: 1968 Detroit Riots: “We Had to Do What Police Couldn’t – Keep People Off Streets!” • EX: Voting Rights Cases in South Vigorous Action Gradualist Delaying Action Reject Delays Reject Delays Accept Delays Establish Programs Issue Rulings Allow Adjournments Appoint Referees Order Change Put Off Case Alabama (Johnson) LA (Dawkins) MS (Cox, Clayton, Cameron)

38. EXAMPLES OF JUDICIAL ACTIVIST ACTIONS • Mandated School Busing Plans (CA & AZ) • Even Ordered Legislature to Institute Income Tax • 1 Person/1 Vote Apportionment, Detailed Plan • 3 Trimester Division in Roe v. Wade • Judge Johnson’s Orders w/ Specific Requirements & Referees

39. COMPARE: JUDICIAL ACTIVISM or STRICT CONSTRUCTIONIST? • Case FOR Judicial Activism? • Gets Things Done, Prevents Delays, Protect Minority Rights from Majority Rule • Case AGAINST Judicial Activism? • Little Control of Judges (Life Term) • Hard to Know Signers’ Intent (Even Possible?) • Caution: Do Not Base View on Specific Case! • You Might Disagree with the Next One! • Warren Court v. Rehnquist Court – Most Issues!

40. EX: ANALYSIS: WARREN COURT * • Liberals & Moderates Agreed A Lot With Each Other • Clark & Stewart Disagreed With Both & With Each Other • * Sidney Ulmer, Former Prof., Political Science, MSU, U Ky

41. [MAJORITY] OPINION OF “COURT” Chief Justice/Leader of Majority Assigns – How? • Pivotal Justice (Hold in Majority) • Closest in Views to Assigning Justice • Unusual Attraction to Opposition • Represents What Majority Had in Common • Philosophical – Opposing Person Who Agrees

42. WHEN DO JUSTICES REFLECT OWN VALUES vs. COMPROMISE? EX: Hugo Black’s Votes for “Certiorari” (Hearing) in Labor Dispute Cases (from J. Burton Notes) • Reflect Values on Important Personal Issues (2x More for “Underdog” v. “Overdog”) • Want to Be Part of Group, Make Group Look Good (Compromise If No Point – Vote Makes No Difference) • Majority Will Compromise If Necessary (If 5-4 Vote, Might Give Up Ideas to Get 6-3 Vote) • Court Concerned With Appearance to Outside – Special Cautions When Overruling 2 Lower Courts

43. ROLE OF JURIES – PRESENCE OF “THE PEOPLE” IN COURT • Jury Research – Once Common Research Topic Sociology of Law Topic (Strodbeck, Kalen, Simon) • Q: Why Have Juries? • Do Help Outcomes for Defendants? • Do They Follow the Law (Judge Instructions)? • Do They Evaluate Testimony Appropriately? • EX: Expert Witnesses, Psychiatrists? • Major Issue for Legal Scholars

44. HOW JURIES ARE CHOSEN • Jury Selection Process: • Population (a)Jury List(b) Qualified List(c)  Jury Panel (d)  Jury for Specific Case (e) • Sample of Population Is Called for Jury Duty •  Leads to a List for Court to Call As Needed •  Portion of List Is Called for a Period of Time • (Day, Week, Month; Varies by Court) • Case Jury [e] Under Atty Control (Voire Dire)

45. SUPREME COURT REQUIREMENTS • US Supreme Court: [b, c, d]Must Represent [a] • Declared Mainly in Southern Cases (1960-70s) • Common Practices in Jury Panel Selection: • Jury List: Allow Persons Selected to “Opt Out” • Common Excuses: Disabilities, Occupations (MD, RN,Police & Relations, Minister), Age • Court Staff Excused “Inappropriate” Candidates • Qualified List: Did Not Represent Population • 1 Day/1 Trial Approach Simplifies Problem • Some Excuses (Age) Still Remain

46. VOIRE DIRE • Attorneys (Prosecutor & Defense) – Have Opportunity to Question Jurors • Searching for Bias: Pre-determined Views on Case; Characteristics Making Them Biased • Relatives, Friends of Principals • EX: Medical Personnel on Medical Trial • Use of Social Science to Assist in Voire Dire • Questionnaires to Jury Panel (Harvey Nussbaum)

47. SOME FINDINGS ON JURIES Jurors Are Like the “Average Person”: • High Respect for Printed Word (Media) • Little Sympathy for “Criminals” • Have “Fuzzy” Distinction Between “Criminal” & “Accused” Some Question Whether Such Individuals Can Ever Give Defendants a “Fair” Hearing

48. HOW JURIES REACH DECISIONS • Position Juror Sits In Jury Room Determines Degree of Influence Over Outcome (Strodbeck) • 80%: Jury Outcome ~ to Judge Outcome • 20%: Jury More Lenient re Defendant (Kalven) • Do Juries Use “Legitimate” Evidence? (EX: Not Use Size of Atty Fee re Damages) – But Juries Often Did This (Kalven)

49. HOW JURIES REACH DECISIONS (ctd) • How Do Juries Handle Expert Testimony? • Usually Means Psychiatrists – Definition of Insanity (Medical or Legal?) (R. Simon) • Are Mentally Ill Responsible for Actions? • “2 Psychiatrists Examined; I Take Their Word.” • “2 Over-Educated People Don’t Make it True!” • “If We Have to Take Their Word, Why Ask Jury?” • So Juries Generally Make Their Own Decisions

50. FREE PRESS & FAIR TRIAL • A Common Concern: Does Press Coverage Limit Right to Fair Trial? • Most Trials Have No Press Coverage • Often There Is Time Lapse Before Trial • Few Cases Actually Go to Trial, Much Less Jury • So Not An Issue In Most Trials … • May Be a MAJOR Issue in Some Trials • EX: O.J. Simpson Trials