2024-03-28T10:28:16Zhttps://escholarship.org/oaioai:escholarship.org:ark:/13030/qt6gv1f5nw2011-07-03T18:20:48Zqt6gv1f5nwLiking to Be in America: Puerto Rico's Quest for Difference within the United StatesOquendo, Angel2005-03-07application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/6gv1f5nwarticleoai:escholarship.org:ark:/13030/qt74p1w57p2011-07-03T18:12:39Zqt74p1w57pThe Development of Informal Reformatory Sentences for Juvenile Offenders in the Late Eighteenth and Early Nineteenth CenturiesKing, Peter2004-11-01application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/74p1w57particleoai:escholarship.org:ark:/13030/qt2c73f0sz2011-07-03T14:45:22Zqt2c73f0szFalse Dichotomies, True Perplexities,and the Rule of LawKrygier, Martin2003-03-14application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/2c73f0szarticleoai:escholarship.org:ark:/13030/qt6v35j6tp2011-07-03T14:45:11Zqt6v35j6tpShooting Down the More Guns, Less Crime HypothesisDonohue, John J.Ayres, Ian2003-02-24application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/6v35j6tparticleoai:escholarship.org:ark:/13030/qt0pd1j95f2011-07-03T14:44:56Zqt0pd1j95fThe Rule of Law in the Age of Terrorism - An AuditNeal,, David J., SC2007-01-30application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/0pd1j95farticleoai:escholarship.org:ark:/13030/qt2mv0f3812011-07-03T09:31:59Zqt2mv0f381The Passage of the Prison Rape Elimination Act: An Analysis of the Reconfiguration of Sexual Citizenship for PrisonersJenness, ValerieSmyth, Michael2006-11-28application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/2mv0f381articleoai:escholarship.org:ark:/13030/qt1rf100tv2011-07-03T09:31:53Zqt1rf100tvPuritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of “Intensity"Ross, Richard J2007-02-13application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/1rf100tvarticleoai:escholarship.org:ark:/13030/qt40h773bq2011-07-03T09:31:46Zqt40h773bqLooking for Law in ChinaLubman, Stanley2007-03-05application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/40h773bqarticleoai:escholarship.org:ark:/13030/qt5321r1r02011-07-03T09:31:40Zqt5321r1r0The Tensions Between Legal Instrumentalism and the Rule of LawTamanaha, Brian Z2006-04-17application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/5321r1r0articleoai:escholarship.org:ark:/13030/qt82h2d73j2011-07-03T09:31:32Zqt82h2d73jCharity, Publicity, and the Donation RegistryCooter, Robert D.Broughman, Brian2005-02-21application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/82h2d73jarticleoai:escholarship.org:ark:/13030/qt2xv0j6j72011-07-03T09:31:21Zqt2xv0j6j7Authorizing the Production of Urban Moral Order: Appellate Courts and Their Knowledge GamesValverde, Mariana2004-04-01Using as data some appellate courts’reviews of projects to maintain moral order in the city, this article shows that an analysis of legal knowledge production that is (a) dynamic and that (b) refuses to treat people and texts as totally different entities, one studied by social scientists and the other studied by lawyers, can tell us much about such familiar but seldom theorized legal manouvres as judicial review and constitutional challenges. Standing back somewhat from the content of the various claims (about urban vices, in our case studies), I focus instead on the dynamics of knowledge – the ways in which knowledge claims circulate and get transformed as they proceed through various legal, and para-legal, stages. Choosing to analyze the dynamics rather than the content of knowledge is inspired by Actor Network Theory, and Bruno Latour’s work in particular: but it also reflects the fact that judicial review also privileges process and form and tends to avoid making judgements about the content of impugned laws or ordinance. In addition, Actor Network Theory also insists that all components of a knowledge network, including things and texts, be treated as ‘actors’: this can help to take sociolegal work beyond the dichotomy of studying law in the books (texts) vs. law in action (humans).application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/2xv0j6j7articleoai:escholarship.org:ark:/13030/qt4ht6r11q2011-07-02T09:13:26Zqt4ht6r11qExplaining the Overruling of U.S. Supreme Court PrecedentSpriggs, James F., IIHansford, Thomas G.2002-11-25The decision to overrule precedent, we argue, results from the justices’ pursuit of their policy preferences within intra- and extra-Court constraints. Based on a duration analysis of cases decided from the 1946 through 1995 terms, we show that ideological incongruence between a precedent and a subsequent Court increases the chance of it being overruled. Two legal norms also exert substantive effects, as the Court is less likely to overrule statutory precedents and more likely to overrule precedents that have been previously interpreted negatively by the Court. While certain precedent characteristics also influence this decision, the political environment exerts no such effect. Consequently, one of the principal implications of this research is that legal norms influence Supreme Court decision making.application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/4ht6r11qarticleoai:escholarship.org:ark:/13030/qt81p467xz2011-07-02T09:13:15Zqt81p467xzThe Contract as Social ArtifactSuchman, Mark C.2003-03-02This article outlines a distinctive, albeit not entirely unprecedented, research agenda for the sociolegal study of contracts. In the past, law and society scholars have tended to examine contracts either through the intellectual history of contract doctrine ‘‘on the books’’ or through the empirical study of how real-world exchange relations are governed ‘‘in action.’’ Although both of these traditions have contributed greatly to our understanding of contract law, neither has devoted much attention to the most distinctive concrete product of contractual transactionsFcontract documents themselves. Without denying the value of studying either contract doctrine or relational governance, this article argues that contract documents are independently interesting social artifacts and that they should be studied as such. As social artifacts, contracts possess both technical and symbolic properties, and the sociolegal study of contract-as-artifact can profitably apply prevailing social scientific theories of technology and symbolism to understand both: (1) the microdynamics of why and how transacting parties craft individual contract devices, and (2) the macrodynamics of why and how larger social systems generate and sustain distinctive contract regimes. Seen in this light, the microdynamics of contract implicate ‘‘technical’’ theories of transaction cost engineering and private lawmaking, and ‘‘symbolic’’ theories of ceremony and gesture. In a parallel fashion, the macrodynamics of contract implicate ‘‘technical’’ theories of innovation diffusion, path dependence, and technology cycles, and ‘‘symbolic’’ theories of ideology, legitimacy, and communication. Together, these micro and macro explorations suggest that contract artifacts may best be understood as scripts and signalsFcollections of symbols designed to field technically efficacious practical action when interpreted by culture-bearing social actors within the context of preexisting vocabularies and conventions.application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/81p467xzarticleoai:escholarship.org:ark:/13030/qt00r5c6fm2011-07-02T09:13:08Zqt00r5c6fmThe Contracting State and Its CourtsAbegg, Andreas2009-01-13application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/00r5c6fmarticleoai:escholarship.org:ark:/13030/qt2wr2z9212011-07-02T09:12:56Zqt2wr2z921The Paradox of Omnipotence: Courts, Constitutions, and CommitmentsLaw, David2005-10-24application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/2wr2z921articleoai:escholarship.org:ark:/13030/qt208200p12011-07-02T09:12:42Zqt208200p1Repellent Crimes and the Limits of Justice: Emotion and the Death PenaltyBandes, Susan2005-11-22application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/208200p1articleoai:escholarship.org:ark:/13030/qt2rc294252011-07-02T09:12:34Zqt2rc29425Framing the Food Fights: How Mass Media Construct and Constrict Public Interest LitigationMcCann, MichaelHaltom, William2004-11-08application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/2rc29425articleoai:escholarship.org:ark:/13030/qt9rq9h9sq2011-03-19T02:14:47Zqt9rq9h9sqWechsler’s Century and Ours: Reforming Criminal Law In a Time of Shifting Rationalities of GovernmentSimon, Jonathan S2003-09-08application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/9rq9h9sqarticleoai:escholarship.org:ark:/13030/qt8s8945012011-03-19T01:46:59Zqt8s894501Mapping Criminal Law: Blackstone and the Categories of English JurisprudenceLieberman, David2002-09-09application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/8s894501articleoai:escholarship.org:ark:/13030/qt8bg9v8mt2011-03-19T01:34:33Zqt8bg9v8mtTextual Harassment: A New Historicist Reappraisal of the Parol Evidence Rule with Gender in MindKeren, Hila2005-06-20application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/8bg9v8mtarticleoai:escholarship.org:ark:/13030/qt8260s3n72011-03-19T01:26:32Zqt8260s3n7To Render Justice: Models of ‘Justice’ in the International Criminal Tribunal for the Former YugoslaviaCampbell, Kirsten2005-04-04application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/8260s3n7articleoai:escholarship.org:ark:/13030/qt7rj7808m2011-03-19T01:18:23Zqt7rj7808mComplicity and the Bystander to CrimeValier, Claire2005-09-12application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/7rj7808marticleoai:escholarship.org:ark:/13030/qt7qp3n8d12011-03-19T01:17:31Zqt7qp3n8d1A Turning Point in Copyright: Baker v. Selden and Its LegacySamuelson, Pamela2004-09-13application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/7qp3n8d1articleoai:escholarship.org:ark:/13030/qt7px578h62011-03-19T01:16:39Zqt7px578h6Reconstituting Paradise Lost: the temporal dimension of postcommunist constitution-makingPriban, Jiri2003-09-12application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/7px578h6articleoai:escholarship.org:ark:/13030/qt7dk1j7hm2011-03-19T01:08:47Zqt7dk1j7hmUsing the Concept of Legal CultureNelken, David2004-10-28application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/7dk1j7hmarticleoai:escholarship.org:ark:/13030/qt7972x29z2011-03-19T01:05:02Zqt7972x29zBeyond Profiling: Race, Policing and the Drug WarBanks, R. Richard2002-10-18application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/7972x29zarticleoai:escholarship.org:ark:/13030/qt75v790fx2011-03-19T01:01:22Zqt75v790fxChoice, Circumstance, and the Value of EqualityScheffler, Samuel2004-09-13application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/75v790fxarticleoai:escholarship.org:ark:/13030/qt73z616b12011-03-19T00:59:24Zqt73z616b1Law, Lawyers, and Empire: From the Foreign Policy Establishment To Technical Legal HegemonyGarth, Bryant2006-04-10application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/73z616b1articleoai:escholarship.org:ark:/13030/qt6kt9s2522011-03-19T00:44:43Zqt6kt9s252Mercy By The Numbers: An Empirical Analysis of Clemency and Its StructureHeise, Michael2004-04-19application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/6kt9s252articleoai:escholarship.org:ark:/13030/qt6ch053x12011-03-19T00:37:47Zqt6ch053x1Unions and Low-Wage Immigrant Workers: Lessons from the Justice for Janitors Campaign in Los Angeles, 1990- 2002Erickson, Christopher L.Fisk, CatherineMilkman, RuthMitchell, Daniel J.B.Wong, Kent2002-04-30application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/6ch053x1articleoai:escholarship.org:ark:/13030/qt5dc3886r2011-03-19T00:06:44Zqt5dc3886rDemocracy, Law, and Comparative PoliticsO’Donnell, Guillermo A.2002-05-10This article offers a revision of democratic theory in light of the experience of recently democratized countries, located outside of the northwestern quadrant of the world. First, various definitions of democracy that claim to follow Schumpeter and are usually considered to be “minimalist” or “processualist” are critically examined. Building upon but clarifying these conceptual efforts, a realistic and restricted, but not minimalist, definition of a democratic regime is proposed. Thereafter, this article argues that democracy should be analyzed not only at the level of the political regime but also in relation to the state—especially the state qua legal system—and to certain aspects of the overall social context. The main underlying theme that runs through this article is the concept of agency, especially as it is expressed in the legal system of existing democracies.application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/5dc3886rarticleoai:escholarship.org:ark:/13030/qt5c43g8np2011-03-19T00:05:35Zqt5c43g8npRace on the 2010 Census: Hispanics & the Shrinking White MajorityHaney Lopez, Ian2004-10-06application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/5c43g8nparticleoai:escholarship.org:ark:/13030/qt4sj7t6n22011-03-18T23:50:09Zqt4sj7t6n2Fact-Finding in Constitutional CasesFaigman, David2005-06-20application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/4sj7t6n2articleoai:escholarship.org:ark:/13030/qt44p610gx2011-03-18T23:31:41Zqt44p610gxThe Rule of Law and Federative UnionsGoldstein, Leslie Friedman2003-04-14application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/44p610gxarticleoai:escholarship.org:ark:/13030/qt3f1230sv2011-03-18T23:10:55Zqt3f1230svEducation, Equality, and National CitizenshipLiu, Goodwin2005-08-20application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/3f1230svarticleoai:escholarship.org:ark:/13030/qt31c1x88w2011-03-18T22:59:19Zqt31c1x88wRethinking Regulatory DemocracyCuellar, Mariano-Florentino2004-05-10This Article presents a critique of democratic participation in the modern administrative state, and provides an affirmative proposal for reforming public participation in shaping regulatory policy. According to several different strands of thinking about law and democracy, the legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach is legitimated by “administrative pluralism,” a way of thinking that emphasizes the value of interest-group competition in shaping regulatory policy. While administrative pluralism helps legitimate regulatory policy in the eyes of jurists, scholars, and the public, it also suppresses implicit questions about how much expert judgment is required in regulatory decisions, and whether the extent of participatory democracy and responsiveness is sufficient. The problems are not abstract. They are easily demonstrated in the course of a specific regulatory rulemaking proceeding, involving Section 314 of the USA Patriot Act (governing law enforcement’s access to financial information). The task of balancing privacy concerns and law enforcement objectives hardly seems like the exclusive province of experts. Individuals and interest groups did have a chance to submit comments in the rulemaking proceeding, but virtually all the comments taken seriously by the regulatory agency were sophisticated statements made by financial institutions and their lawyers. While over 70% of comments came from individuals concerned about privacy, the agency did not even address these in its final rule, nor does it appear to have deployed any alternative mechanism to assess public reactions to its regulation. Despite the administrative pluralism model’s tenacious hold, at least two alternatives exist to involve the public in rulemaking proceedings such as those governing Section 314. Both involve constituting a small group of people whose discussions can inform the regulatory process. Participants can be either selected by lot from the entire population (a “majoritarian deliberation” approach), or chosen from among constituencies (such as outside experts) who may be especially impacted by the regulation but are essentially unrepresented (a “corrective” approach). Given that neither the public’s sophistication nor its interest in an issue are fixed, the new approaches can generate valuable information about what informed citizens think of regulatory proposals. Many of the technical challenges could be solved by creating a separate agency to implement the alternatives, though questions arise about selecting deliberation groups, framing the issue, and providing representation to the views of the group. Instead, two larger challenges remain. First is the challenge of choosing among different concepts of “administrative democracy” to combine expertise and participation. Second is the challenge of overcoming a political economy that strongly favors the status quo.application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/31c1x88warticleoai:escholarship.org:ark:/13030/qt1545169p2011-03-18T22:05:37Zqt1545169pPerformance-Based Regulation: Prospects and Limitations in Health, Safety, and Environmental RegulationCoglianese, CaryNash, JenniferOlmstead, Todd2004-04-26Regulation is designed to improve the performance of individual andorganizational behavior in ways that reduce social harms, whether by improving industry’s environmental performance, increasing the safety of transportation systems, or reducing workplace risk. Regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation’s goal into the language of the rule, specifying the desired level of performance and allowing the targets of regulation to decide how to achieve that level. This second approach is the subject of this article, which summarizes the discussion at a workshop organized last year by the Regulatory Policy Program at Harvard University. The workshop brought together decisionmakers from a dozen different government agencies as well as leading researchers from the fields of economics, engineering, law, and political science. The dialogue at the workshop, as summarized in this article, builds on the experiences of different regulatory agencies that have used performance-based regulation and clarifies its advantages and disadvantages in addressing health, safety, and environmental problems.application/pdfpubliceScholarship, University of Californiahttps://escholarship.org/uc/item/1545169particle