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In many countries, the law permits state authorities to detain noncitizens before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable noncitizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of noncitizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable noncitizens, the empirical assessment of the determinants of decisions on preremoval detention are largely unexplored. Using data from court proceedings of police petitions of detention in Spain and a quantitative strategy, in this article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit models that take into account variation occurred at judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of prosecutors and attorneys during hearings proves also relevant to predict detention.

Aconsiderable amount of research has been directed toward understanding justice system actors' decision-making concerning criminal punishment. Most of this research has centered on determining the influences of judicial decisions regarding imprisonment or parole officials' decisions related to re-imprisonment (e.g., Baumer 2013; Feldmeyer and Ulmer 2011; Huebner and Bynum 2006; Kutateladze et al. 2014; Lin, Grattet, and Petersilia 2010; Patterson 2015; Spohn and Holleran 2000; Steiner et al. 2011; Ulmer 2012; Warren, Chiricos, and Bales 2012; Wooldredge 2010; Wooldredge, Griffin, and Rauschenberg 2005). Few studies have focused on punishment decisions made within prisons (e.g., Flanagan 1982; Thomas et al. 1991).An examination of decision-making pertaining to punishment administered within prisons is important, however, because these decisions can restrict an individual's liberty during their imprisonment (e.g., segregation), and also affect the timing of an individual's release from prison if the punishment results in the loss of sentencing credits or influences parole decision-making (Babcock 1981; Flanagan 1982; Glaser 1969). Punishment decisions made within prison are also subjected to little oversight, and prison officials enjoy considerable discretion when meting out punishments (Crouch 1985; Harvard Center for Criminal Justice 1972; Thomas et al. 1991). If punishment disparities result from this situation, then some offender groups may endure a greater loss of liberty relative to others. Unfair or disparate treatment of offender groups can also undermine the legitimacy of a prison organization, which could influence inmates' willingness to defy the prison rules and other legal authorities (Liebling 2004; Sparks, Bottoms, and Hay 1996; Useem and Kimball 1989). To better understand these issues, we examine punishment decisions made by prison officials in a Midwestern state. Specifically, we assess the factors that influence prison officials' decisions to remove sentencing credits in response to prison rule violations.Sentencing Credit Laws, a Midwestern State, and Prison DisciplineSentencing credit laws provide opportunities for inmates to gain a reduction in their prison sentence (Lawrence and Lyons 2011; Weisburd and Chayet 1989), and such laws generally assume one of two forms-good time or earned time laws (Lawrence and Lyons 2011). Under good time laws, sentencing credits are typically awarded to inmates automatically if they follow prison rules and participate in required activities, whereas earned time laws generally only permit sentencing credits to be awarded to inmates who participate in or complete designated programs (e.g., rehabilitative treatment) (Lawrence 2009). Inmates can earn good time credits in 32 states, while 37 states have laws that afford inmates earned time credits; many states permit inmates to be awarded both types of sentencing credits (Lawrence and Lyons 2011).The Midwestern state under study here has a sentencing credit law that automatically awards inmates six months of good time for each year of their prison sentence.1 An iteration of the law has been in existence for over forty years, and judges in the state routinely consider the impact of the law when determining how long to sentence a criminal defendant to prison (Pelka et al. 2014). However, an inmate may have good time credits removed pursuant to disciplinary actions for violations of the state's inmate rules and regulations, which raises the possibility that some individuals may remain in prison longer than the sentencing judge intended.All prisons in the state prohibit 46 acts, which are divided into three different classes of offenses-Class I offenses (e.g., assault), Class II offenses (e.g., tattoo activities), and Class III offenses (e.g., tobacco products)-that reflect their seriousness and the maximum punishment that may be imposed. Removing good time is arguably the most severe punishment prison officials can impose because inmates' liberty interests are affected (Babcock 1981). …

When the Supreme Court makes a decision contrary to public opinion, justices are likely to worry the Court will lose public support. So, what are justices to do? One option, of course, is to move the policy content of the opinion closer to public sentiment. Yet, we know that justices seek, among other things, ideological goals (Epstein and Knight 1998) and would prefer to effectuate them when feasible. Another option, then, is to seek their policy goals while mitigating the possible loss of public support. It is on this perspective we focus. We argue that justices, when they rule contrary to public opinion, will vary the clarity of majority opinions in an effort to maintain public support as best they can. While the Court has a deep reservoir of diffuse support, frequent counter-majoritarian decisions could leave it at risk (Gibson et al. 2003: 365). By writing a clear opinion when ruling against public sentiment, justices can better inform the public why they so decided, and thereby manage any immediate loss of support they might suffer-or, think they might suffer (see, e.g., Nelson, N.d.).We develop a measure of opinion clarity based on automated textual readability scores that we validate using human raters. Our results show public opinion strongly influences the content of Court opinions. Importantly, we analyze both macro- and case-level public opinion, providing broad-based support for our findings. In one approach, we compile an aggregate data set that includes Court decisions from 1952 to 2011, and execute a time series analysis that scrutinizes opinion clarity as a function of yearly changes in public mood. In a second approach, we rely on issue-specific public opinion polls that directly relate to individual Supreme Court cases (Marshall 1989, 2008). Using these microlevel data, we analyze the content of specific majority opinions to determine how public opinion influences Supreme Court opinion clarity. Both empirical analyses offer considerable support for our argument that justices write clearer opinions when they deviate from public sentiment. What is more, our measure of opinion clarity is one scholars who study other institutions could employ.These findings are important for a number of reasons. First, it is the content of the Supreme Court's opinions that influence society's behavior. Actors within society look to those opinions to determine whether they can engage in particular behaviors (Spriggs and Hansford 2001). "[S]cholars, practitioners, lower court judges, bureaucrats, and the public closely analyze judicial opinions, dissecting their content in an endeavor to understand the doctrinal development of the law" (Corley et al. 2011: 31). People must understand the content of opinions and, as such, scholars should understand the factors that influence those opinions. Our results speak to how the Court crafts the content of those opinions.Second, the results address the Court as one institution in a broader political system where justices know they do not necessarily have the last word. That is, our approach shows how the Court is tied into a larger network of actors and audiences in the American political and legal system (Baum 2006). Rather than focus on how justices influence others, we show how others (i.e., the public) can influence justices. At the same time, knowing justices intentionally alter the language of their opinions to overcome audience-based obstacles tells us something that speaks to broader normative debates about democratic control. Justices appear to do what they can to overcome obstacles from public opinion. So, while public opinion seems to influence their behavior, justices appear able to circumvent the constraints of public opinion by tailoring their messages. For those interested in ensuring more accountability of judges, these results suggest such control is perhaps more difficult than previously believed.Third, understanding how the Court alters its opinions can inform us about how the Court acquires and maintains judicial legitimacy. …

Immigration judges make consequential decisions that fundamentally affect the basic life chances of thousands of noncitizens and their family members every year. Yet, we know very little about how immigration judges make their decisions, including decisions about whether to release or detain noncitizens pending the completion of their immigration cases. Using original data on long-term immigrant detainees, I examine for the first time judicial decision making in immigration bond hearings. I find that there are extremely wide variations in the average bond grant rates and bond amount decisions among judges in the study sample. What are the determinants of these bond decisions? My analysis shows that the odds of being granted bond are more than 3.5 times higher for detainees represented by attorneys than those who appeared pro se, net of other relevant factors. My analysis also shows that the detainees' prior criminal history is the only significant legally relevant factor in both the grant/deny and bond amount decisions, net of other relevant factors. This finding points to the need for further research on whether and how immigration courts might be exercising crime control through administrative proceedings.

How should legitimacy and authority be conceptualized in the context of global governance, where a growing number of sites for supranational decision-making face a plurality of audiences in multiple social fields, each with potentially distinct standards for evaluating legitimacy? This article proposes legitimacy chains to explain how authority is negotiated between states and supranational decision makers, such as international courts. A legitimacy chain refers to the articulation of justifications that become linked through competitive processes of evaluation across social fields. Different fields require distinct forms of justification to make a valid claim. For instance, a judicial decision's legitimacy is assessed in terms of criteria for legal validity based on "valued" legal knowledge, procedures, practices, and career paths that are constitutive of legal expertise (Bourdieu 1986). However, for international courts, compliance is generally1 a political decision and therefore involves framing legitimacy claims in terms relevant to state power. This requires interlocutors to broker legitimacy claims between fields. Their relative capacities to do such brokering shapes the degree to which legitimacy claims oriented to distinctive social fields are linked into legitimacy chains that can become the basis of legitimate domination over broad, differentiated social spaces.I develop the concept of legitimacy chains through a series of disputes related to zeroing, a method used by governments for calculating when imports are being sold at less than fair market value or dumped. In addition to numerous cases in U.S. Federal Courts, the European Court of Justice, and NAFTA tribunals, zeroing has been at issue in 18 disputes initiated at the World Trade Organization (WTO), comprising a fifth of the overall caseload for the WTO's Appellate Body between 1998 and 2011 (Bown and Prusa 2011). These WTO rulings have been characterized as the "Epicenter of the Revolution" (Cho 2010: 629), "tantamount to 'Constitutional Lawmaking'" developed "under the subterfuge of textual ambiguity of the relevant WTO norms" (Ibid.:624). The United States unsuccessfully defended its use of zeroing and then complied with WTO rulings, despite organized efforts to de-legitimate them by powerful industries and in the absence of significant coercion.2 The case of zeroing thus poses the question of how the Appellate Body constructs and justifies international legal obligations and how compliance occurs without the threat of coercive force. These questions can be addressed through the concept of legitimacy chains, which shows how legitimacy is asserted, validated, and brokered between international courts, national governments, and domestic courts.The zeroing disputes provide an important empirical context to formulate the concept of legitimacy chains, because those disputes involve three neatly distinguishable social fields (international trade law, U.S. politics, and U.S. legal system) and well-institutionalized interlocutors. Choosing a case with these characteristics enables identification of the key dynamics of legitimacy chains and provides insights into how they may differ or fail under different conditions. For instance, the successful construction of a legitimacy chain is likely to vary when distinctions between fields are murkier; when enclaves at the intersection of fields are less clear or nonexistent; or when the role of interlocutor is not deeply institutionalized. This opens a set of empirical questions to ask about other legitimacy chains: how is the institutional responsibility for a response organized? To what degree are the actors responsible for compliance shielded from or vulnerable to pressure from specific organized interest groups? Or, to what degree does the formal process of compliance require engaging with multiple and diverse veto actors? These disputes are also important in substantive terms, as they involved the United States, which has a reputation both for resisting international dictates and for unilateral approaches to trade policy. …

The Supreme Court of the United States primarily impacts society through doctrine created or sustained in their opinions (Hall 2010). Any understanding of the Court's role in American society must therefore include an understanding of which precedents exert the most legal influence, and why. Scholars overwhelmingly make these determinations based on how often subsequent Supreme Court opinions cite a given precedent. When scholars analyze precedents in this manner for "legal significance," (Fowler and Jeon 2008) does this term mean that a precedent is well-known? Or does it mean that other judges defer to the precedent's holding regularly? While noteworthiness and jurisprudential influence could be correlated, they are distinct in theory.It cannot be assumed that measuring the general relevance of a given precedent also captures its doctrinal significance. Approaches relying on citations in Supreme Court opinions can measure general relevance quite well, however, they are less suitable for capturing legal authority. In support of this contention, I present an analysis of original data on the treatment of every Court precedent 1946-2010 in all three levels of the federal judicial hierarchy.Analysts must make two methodological choices when measuring legal precedent. First, in any hierarchical legal system, analysts must decide at which level or levels of that system they wish to measure the significance of individual precedents. In the United States, judges at the district, circuit, and Supreme Court levels all face different operative incentives and constraints (Baum 1994). Due to these constraints, perhaps district judges are more likely than others to allow legalistic concerns to predominate when crafting opinions. Similarly, in other contexts, it could be expected that the lower rungs of any judicial hierarchy would be least able to innovate ideologically, due to resource and opportunity constraints (Choi, Gulati, and Posner 2012; Epstein and Knight 2013; Pinello 1999; Wold and Caldeira 1980).The second choice analysts face is whether to consider the language of the citing opinions directly. Some citations to precedent are incidental, others are negative, and some are deferential. Fowler et al. (2007); Fowler and Jeon (2008), and Patty, Penn, and Schnakenberg (2013) focus on a citation's networked position and analyze all types of citations, positive, negative, and neutral, together. Alternatively, Hansford and Spriggs (2006) consider the nature of citations when measuring precedent, at the Supreme Court level exclusively. Considering only deferential treatments may better capture jurisprudential treatments than would considering all citation types together. Ultimately, a reasonable method for measuring the broader jurisprudential significance of Supreme Court precedent involves aggregating how often a precedent is followed (according to Shepard's Citations) across all three levels of the federal judicial hierarchy.1 Conversely, when analysts set out to measure which precedents are relevant to a court in a more broad sense (Clark and Lauderdale 2012; Fowler et al. 2007; Fowler and Jeon 2008), considering all citation types appears to be the better option.I illustrate the tradeoffs of these two choices by exploring how varying methods of measuring precedent track fractious, logically inconsistent decisions. I discuss the definition of these paradoxical decisions, known as discursive dilemmas or doctrinal paradoxes (Kornhauser and Sager 1986; Pettit 2001; Stearns 2000), in detail below. Precedents stemming from a paradox are by definition ambiguous, and are, therefore, quite challenging to follow in a jurisprudential manner.In brief, paradoxes are decisions for which every possible rationale for the Court's judgment is rejected by a majority of the justices, yet the judgment itself still gets a majority vote through the aggregation of votes by desired outcome. Lower courts struggle to follow paradoxes because it is unclear which line of reasoning ought to apply (Post and Salop 1992). …

A substantial amount of judicial behavior research is devoted to the impact of judges' personal preferences and attributes on their decisions. Some scholars maintain that judges' decisions are guided more or less exclusively by legal considerations (Dworkin 1978; Gillman 2001), while others have argued that judges' decisions are heavily influenced by a variety of other factors, including their political ideology, race, gender, age, religious orientation, social connections, and even birth order (Baum 2006; Blake 2012; Boyd, Epstein, and Martin 2010; Collins and Moyer 2008; Farhang and Wawro 2004; Heise and Sisk 1999; McGuire 2013; Segal and Spaeth 1998; Sisk, Heise, and Morriss 1998; Songer, Davis, and Haire 1994; Yarnold 2000). Although this debate is important in understanding and predicting judicial decisions, both sides overlook a crucial aspect of judicial decision making: the perceptions of judges' audiences. In addition to understanding how judges make decisions, it is just as important to understand how the public thinks judges make decisions. The public's perceptions of courts' decisions need not correspond to reality. Judges' decisions are conveyed and interpreted by politicians and pundits who further obscure the already opaque judicial process. As a result, the question of whether a judge's personal biases actually play a role in the decision may have little bearing on whether they are perceived as biasing the decision.The public's perceptions of decision making on the court can also impact how decisions are made in the first place. Evidence has shown that perceived bias in judicial decision making can weaken the legitimacy of courts and legal institutions (Gibson 1989; Ramirez 2008). If legitimacy reaches a low enough level, the court may have concerns about the non-implementation of its decisions. Because courts control neither the purse nor the sword, judges have an incentive to maintain a certain degree of legitimacy, which may motivate them to act strategically to protect the legitimacy of their decisions and the institution (e.g., Epstein and Knight 1998). Among other methods of protecting legitimacy, avoiding the appearance of bias is an important consideration of the court in maintaining their stature and ensuring implementation of their decisions.In this article, we examine the determinants of perceived bias in courts' decision making. In particular, we focus on the effect of judges' personal attributes on perceptions of bias and legitimacy. Previous research has shown that personal attributes such as the racial composition of courts can influence perceptions of legitimacy for racial in-group members (Scherer and Curry 2010). We continue in this vein by measuring the direct effect of judicial group attributes on perceptions of bias and legitimacy in a given court case.While a variety of factors may determine whether the public perceives a court's decision as biased, this article focuses on the impact of judges' membership in a societal out-group. Specifically, we examine how the decisions of atheists, a religious out-group, are perceived differently than those of Christians, a religious ingroup. The United States has become increasingly secularized over the past few decades: in contrast to the small fraction of Americans that were religiously unaffiliated in 1950, nearly onefifth of Americans today are unaffiliated with a religion (Putnam and Campbell 2010). As portions of the American population become more expressly nonreligious, it is important to understand how their role in governing institutions affects perceptions of those institutions. Although atheist identification has become more common, atheists are still one of the most disliked groups in American society (Gervais, Shariff, and Norenzayan 2011; Harper 2007; Putnam and Campbell 2010). Since most Americans view religion as a precondition for morality (Gervais, Shariff, and Norenzayan 2011), they may be especially likely to see atheist leaders as dishonest or immoral. …

This article discusses how McCann's theory on legal mobilization and social change is generalizable to the legal decisions of agencies. I demonstrate how the Equal Employment Opportunity Commission (EEOC) routinely delayed and denied Title VII employment rights on the basis of sex and how this resulted in the formation of the National Organization for Women (NOW) to ensure that the sex provision of Title VII was enforced. The article also discusses the influence of NOW in shaping the first years of Title VII law and the organization's role in reversing EEOC decisions denying rights under the sex provision of the law.Title VII of the Civil Rights Act (CRA) of 1964 protects against unlawful employment practices that create unequal employment opportunities. When the law passed, these protections extended to hiring, firing, compensation, terms, conditions, and privileges of employment as well as employment opportunity and status on the basis of race, color, religion, sex, or national origin. The CRA of 1964 also created the Equal Employment Opportunity Commission (EEOC) to enforce Title VII of the law. When the EEOC opened its doors on July 2, 1965, it faced an instant backlog of nearly 1,000 claims and the number of claims and backlog continued to grow (Pedriana and Stryker 2004:711).By the end of the 1969 fiscal year, less than half of the over 54,000 Title VII claims received by the agency finished investigation. Of the 4,793 cases it had decided, the agency determined that only about 2,493 (52%) had "reasonable cause" to suspect discrimination had occurred. From these claims, the EEOC conciliated 1,350 claims of discrimination. As a result, 729 of these claims were unsuccessfully resolved over the four-year period (Wolkinson 1973: 2). This left a relatively small portion of the over 54,000 claims with even the potential for a lawsuit via the agency granting claimants the right to sue in the courts. From there, individuals still had the financial, educational, and social obstacles of bringing a claim to the courts (Felstiner, Abel, and Sarat 1980-1981; Galanter 1974). As a result, most of the Title VII legal claims brought before 1969 were interpreted by the EEOC (Wolkinson 1973: 2).By eliminating the implementation constraint (Rosenberg 2008) and mitigating some of the obstacles of bringing claims to the courts, new and novel legal claims by individuals have the potential to influence the law and society through the claims they submit to agencies. Individual claims submitted to agencies not only place issues on the agenda of an agency but also present visions of law that may be reinforced or abated by the agency. As such, individual claims and agency responses to them have the potential to spur interest group action and social change. Yet, scholars have paid little attention to how the legal decisions of government agencies hold the potential to provoke interest group mobilization and social change.Rather than focus on the relatively small number of interpretations regarding Title VII law made in the courts during these years, this article explores the far more numerous and everyday interpretations of Title VII made by the EEOC through its responses to claims.1 As scholars, we tend to focus on judicial interpretations as the main source of law. Yet, agency rules and regulations have "the same weight as congressional legislation, presidential executive orders, and judicial decisions" (Kerwin 1999: 3). By shifting the focus from the courts and onto agency lawmaking, I demonstrate the applicability and potential for court-based theories to inform this other type of "lawmaking by unelected officials" (Kerwin 1999). I argue that scholars should not neglect or relegate to the sidelines the equally important role of agency made law and the ways in which rights are made either real or symbolic by government agencies (Epp 2009). Likewise, we need to understand how agencies make law, like the courts, in response to the legal claims made by individuals and interest groups (Zemans 1983). …

A rich theoretical literature describes the disadvantages facing plaintiffs who suffer multiple, or intersecting, axes of discrimination. This article extends extant literature by distinguishing two forms of intersectionality: demographic intersectionality, in which overlapping demographic characteristics produce disadvantages that are more than the sum of their parts, and claim intersectionality, in which plaintiffs who allege discrimination on the basis of intersecting ascriptive characteristics (e.g., race and sex) are unlikely to win their cases. To date, there has been virtually no empirical research on the effects of either type of intersectionality on litigation outcomes. This article addresses that lacuna with an empirical analysis of a representative sample of judicial opinions in equal employment opportunity (EEO) cases in the U.S. federal courts from 1965 through 1999. Using generalized ordered logistic regression and controlling for numerous variables, we find that both intersectional demographic characteristics and legal claims are associated with dramatically reduced odds of plaintiff victory. Strikingly, plaintiffs who make intersectional claims are only half as likely to win their cases as plaintiffs who allege a single basis of discrimination. Our findings support and elaborate predictions about the sociolegal effects of intersectionality.

This article advances a new account of judicial behavior: the thesis of tactical balancing. Building on existing models of judicial decision making, the thesis posits that high court justices balance a discrete set of considerations—justices' ideologies, their institutional interests, the potential consequences of their rulings, public opinion, elected leaders' preferences, and law—as they decide important cases. Variation in a high court's balancing of those considerations as it decides different cases leads it to alternate between challenging and endorsing the exercise of government power. The way in which high courts carry out this “tactical balancing” reflects their broader strategy for prioritizing the different roles they can play in a polity, and thus has significant implications for the rule of law and regime stability in developing democracies. The thesis is illustrated through a detailed analysis of the Brazilian high court's rulings on cases concerning crucial economic policies (1985–2004).

Environmental Litigation in China: A Study in Political Ambivalence. By Rachel E. Stern. Cambridge and New York: Cambridge Univ. Press, 2013. 300 pp. $99 cloth.Why would anyone read a book on environmental litigation in China? The obvious answer seems to be China's increasingly serious environmental problems, from polluted air in cities to contaminated water and soil in the countryside. But Stern's book Environmental Litigation in China: A Study in Political Ambivalence goes far beyond documenting a few major pollution cases. Using environmental litigation as an empirical case, the book provides an excellent panoramic overview of both China's legal system and its political, social, and international contexts. With an elegant organizational structure and a smooth writing style, the author paints a multilayered and colorful picture of how law works in a highly ambivalent political environment.The concept of political ambivalence offers both a theoretical lens and an empirical background for the study on environmental litigation. Political ambivalence "reflects state incoherence and the reality that political signals are as likely a mishmash as a 'harmonious mesh' " (p. 100), but it is different from arbitrariness and ambiguity because it is neither solely discretionary nor calculatedly vague. In China's political system, local agents, such as lower court judges, often receive ambivalent signals from above. Consequently, the judicial decisions of Chinese judges vary in two dimensions: legal formalism and individual autonomy. To what extent they strictly adhere to written law and to what extent they have autonomy beyond political influence determine the outcomes of environmental lawsuits in China. Legal innovation is most likely to occur when judges enjoy both a higher degree of individual autonomy and a balance between legalism and rough justice (p. 128). This is an analytical framework on judicial decisionmaking in one-party states that can be generalized beyond China and environmental law.Political ambivalence also affects the work of those Chinese lawyers who do public interest cases, regularly or occasionally. For these activist lawyers, environmental litigation falls into a gray area between highly sensitive cases (e.g., defending for Falun Gong practitioners) and mundane civil or criminal cases. As the author comments, "The environment is a flexible cause, broad enough to encompass concerns about inequality and an overbearing government as well as pollution and nature conservation" (p. 156). The environmental activism of lawyers is facilitated by the financial support and capacity building effort of international nongovernmental organizations such as the American Bar Association or the Ford Foundation. …

This article provides an analysis of the nature of circuit court threshold decisions. Specifically, a model sensitive to the institutional context of the circuits is developed and tested across all threshold decisions in the sample and in more limited samples of proper party and proper forum votes. The results suggest that circuit court gatekeeping is a function of multiple factors, including circuit court law, litigant status, the lower court decision, and, at times, the ideological preferences of the circuit judge or that of his or her circuit.

Why do some federal circuit court precedents transmit across circuits when others do not? Does judicial opinion language influence which cases are more likely to transmit? Previous research on the transmission of precedents has focused primarily on attributes of the circuits or judges who wrote the decisions, without considering whether opinion language also influences citations. This study hypothesizes that precedents are more likely to transmit to other circuits when judges communicate their importance using features of opinion language such as the legal grounding, the amount of supporting evidence, and the decision to file a per curiam opinion. The results indicate that opinion language does influence the transmission of precedents, which suggests that judges who care about policy and are willing to take affirmative steps to encourage citations can use opinion language to enhance their impact.

This article evaluates the widespread scholarly claim that the courtroom victories of the lesbian, gay, bisexual, and transgender rights movement have invariably provoked a counterproductive political backlash. Those victories have indeed provoked conservative countermobilization, but that has not been their only or even their most prominent effect. Assessing the political reaction to the movement's judicial victories, the policy impact of those victories, and the alternative strategic paths that were available to the movement at the outset, I argue that here, as elsewhere, legal mobilization has sometimes been a promising avenue for pursuing policy changes whose prospects were otherwise quite limited.

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns. Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups. This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests? One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community. For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

The European Court and Civil Society: Litigation, Mobilization and Governance. By Rachel Cichowski. Cambridge, United Kingdom: Cambridge University Press, 2007. Pp. xv+294. $85.00 cloth; $32.99 paper; $26.00 e-book. An exemplary addition to a growing interdisciplinary body of literature on the European Union (EU) legal system, The European Court and Civil Society explains "how an international treaty governing economic cooperation became a quasi-constitutional polity granting individual rights and public inclusion" (p. 1). Accounts of how this transformation came about have been previously proffered but none as nuanced as Cichowski's empirically driven explanation. The study provides new and important insights into the role of civil society litigation and mobilization in spurring institutional change and supranational governance. The first chapters lay out the theoretical, empirical, and normative debates with which the book engages and develops the theoretical approach applied in subsequent chapters. Cichowski's theoretical contribution is powerful: existing scholarship on European legal integration has been dominated by the increasingly stagnant debate between intergovernmental approaches, which argue that national governments' policy preferences systematically influence judicial decisions and neo-functional approaches, which focus on the role of supranational institutions and transnational society. The study, by exploring the "interactions between individual activists, law and courts and the impact of this dynamic on governance" (p. 244), transcends this debate and is able to draw conclusions about the causes, effects, and feedback effects of supranational governance, mobilization, and litigation. The heuristic device that the study develops is used to evaluate whether, how, and why integration has evolved in specific policy domains: questions that have not been satisfactorily answered by the existing theoretical approaches. Part I explores the dynamic process of institutionalization through litigation by focusing on legal mobilization in the gender equality and environmental protection policy domains. The cases were strategically chosen to allow for a comparison of the effect of the legal basis-treaty-based rights (gender equality) versus rights enshrined only in secondary legislation (environmental protection)-on judicial rulemaking capacity and the ease with which member state governments can retaliate against adverse rulings. Part II switches focus and takes mobilization as the starting point of analysis. It argues that national executives are no longer alone in the European arena; public interests are equally present. Focusing on the same policy domains, Cichowski finds that litigation and legislation provide new political and legal opportunities, prompting individuals and groups to shift their mobilization to the emerging supranational space. A formidable strength of the book is the robust methodology that combines quantitative analyses across 15 countries from 1970 to 2003 in the two policy domains with detailed, lively, and systematic case law analysis and a historical study of the mobilization dynamic at the European level. …

Models of judicial decisionmaking have traditionally relied on legal, political, and contextual variables, emphasizing judges' background, litigants' rights claims, and the relative social status of the parties involved. A recent scholarly expansion has brought cultural variables into the equation, indicating that judicial scholarship might usefully include narrative and rhetoric as measures of legal consciousness. This project examines AIDS-related litigation from the U.S. Circuit Courts of Appeals between 1983 and 1995, emphasizing the social construction of sexuality. It uses content-based coding and stepwise probit analysis to evaluate the importance of controlling for language that depicts AIDS as a "gay disease" and its association with death and plague metaphors. Introduction Words are arguably the fundamental element of law in Western culture. Scholars working from various disciplinary perspectives have opened up rich and productive ways of thinking about how legal language produces, reifies, or challenges social structures, cultural norms, and technologies of power. Building on the insights of Legal Realism, feminism, critical legal scholarship, and critical race theories, analysts have increasingly turned their attention to legal language. Some researchers explore the ways that language transforms disputes into public discourse, others examine concepts such as rights and their place in political life, and still others consider how disputes operate within the specialized language of the law (e.g., Canan et al., 1990; Glendon 1991; Mather & Yngvesson 1980; Merry 1990). Expanding the representational framework has shown how legal language constructs race, gender, and sexuality at multiple sites of social interaction (e.g., Delgado 1989; Eskridge 1997; MacKinnon 1993; Matsuda 1993; Scheppele 1992). The emotive possibilities of personal narrative have gained prominence, drawing attention to the explanatory potential of weaving together legal discourse, storytelling, social theory, or psychoanalysis (e.g., Brooks 1996; Delgado 1989; Ewick & Silbey 1998; Matsuda 1987; Minow 1996; Thomas 1993). Investigators have also begun to explore the intersection of legal and scientific narratives (e.g., Hashimoto 1997; Imwinkelried 2000; Levit 1989; Matoesian 2001; Sanders 2001), inspiring us to consider the ways that facts and artifacts are generated in the courtroom (see Latour & Woolgar 1979). Whether we refer to these approaches, in sanguine or more cautionary terms, as "law and literature," "legal storytelling," or "narrative jurisprudence" (Cover 1986; Dalton 1996:58; Gewirtz 1996:3; Sherwin 1988; Tushnet 1992), words remain the currency in an economy of legal power. Students of judicial behavior have also been busy developing hypotheses and building statistical models that include an array of potentially influential but non-linguistic elements. Legal and extralegal variables, appointment effects, measures of political context, social and legal issues raised by litigants, and fact-- patterns have all been theorized as predictors of case outcomes (see Baum 1997; Dahl 1957; Goldman & Sarat 1979). In another shift of emphasis, Rowland and Carp (1996) propose that judicial scholars should expand their theoretical frame to encompass cognitive factors as well. Their argument, developed under the rubric of social psychology, suggests that a linguistic analysis of judicial opinions might help inform our understanding of a judge's cognitive frame and, subsequently, may improve models of judicial behavior. In a related vein, Schneider and Ingram (1993) observe that policymakers deliberately manipulate the images and cultural symbols associated with particular groups and that, subsequently, policies are enacted consonant with the social construction of targeted populations. Unpopular groups become targets of punitive state policies, while more popular ones are offered inducements, tax breaks, and benefits programs. …

While many of the decisions of federal district court judges involve the routine application of settled legal rules, a significant minority of their decisions present the judges with the opportunity to engage in judicial policy making. A considerable body of literature suggests that when faced with policy-making opportunities, the policy preferences of the judges exert a significant impact on the nature of those decisions. The present study explores the question of whose preferences are manifested in the policy-relevant decisions of the district court judges. In particular, we seek to determine the relative impact of the preferences of the major elites involved in the selection of federal district judges: the appointing president, home state senators of the president's party, and home state elites outside the Senate who are consulted when a president makes an appointment from a state whose Senate delegation is in the hands of the opposition party. The analysis is based on all published decisions of the district courts in civil liberties, economic and labor, and criminal procedure cases decided between 1961 and 1995. We find that contrary to the expectations derived from the existing literature on district judge appointments, the political preferences of the appointing presidents are most closely related to the policy relevant decisions of the judges. Introduction The U.S. district courts represent the basic point of input for the federal judiciary and are the "workhorses" of the federal system (Carp & Stidham 1998:23). Since the vast majority of their decisions are not appealed, district judges often have the last say about most of the legal issues resolved in federal court. Those decisions increasingly extend to a host of new issues with controversial political implications: the availability of abortions, standards for defining obscenity, the quality of the air we breathe, requirements for affirmative action programs, standards for the maintenance of prisons, what plea bargains would be accepted in political corruption investigations like Watergate, and the admissibility of evidence from searches and confessions in high-profile criminal prosecutions (Goulden 1974; Rowland & Carp 1996). While many of their decisions involve the routine application of settled legal rules, a significant minority of their decisions, especially those published in the Federal Supplement, present the judges with the opportunity to engage in judicial policy making. A considerable body of literature suggests that when judges are faced with policy-making opportunities, their policy preferences exert a significant impact on the nature of those decisions (Carp & Rowland 1983; Rowland & Carp 1996; Richardson & Vines 1970; Rowland & Carp 1983; Peltason 1955). The present study explores the question of whose preferences are manifested in the policy-relevant decisions of the district court judges. In particular, we seek to determine the relative impact of the preferences of the major elites involved in the selection of federal district judges: the appointing president, home state senators of the president's party, and home state elites outside the Senate who are consulted when a president makes an appointment from a state whose Senate delegation is in the hands of the opposition party. The Appointment of District Court Judges "In form, the appointment of federal judges could not be simpler: they are nominated by the President and affirmed by majority vote of the Senate" (Richardson & Vines 1970:58). In practice, however, more actors are involved than just the president and the Senate sitting as a collective body, and the politics of the process varies in significant ways for judges nominated to different courts. Examinations of the politics of judicial selection have concluded that even at the bottom of the judicial hierarchy where local political forces have their greatest impact, the president is a key player (Carp & Stidham 1998; Goldman 1997; Richardson & Vines 1970; Rowland & Carp 1996). …

Variation in sentencing outcomes represents the actions of a number of members of the criminal justice system. To isolate the part of the variation that is due to the discretion of the judge (or other sentencing agent, such as a prosecutor), one can model the sentencing guidelines themselves. Such a model captures any non-linearity in the sentencing grid. In practice, modeling the guidelines rather than legal factor scores (as is common in the literature) means that more of the variation that race and legal factors share in common will be attributed to the racial status of the offender. Using data from Maryland, we find that African Americans have 20% longer sentences than whites, on average, holding constant age, gender, and recommended sentence length from the guidelines. We find more judicial discretion and greater racial disparity than is generally found in the literature. Moreover, when we begin to try to explain this discretion, we find that judges tended to give longer sentences (relative to those recommended by the guidelines) to people in the part of the guidelines grid with longer recommended sentences (who are disproportionately African American) than they gave to people in the part of the grid with lower recommended sentences. I. Introduction There is a large literature on racial discrimination in sentencing outcomes that begins with the disproportionate representation of African Americans and other minorities in prison.1 IMAGE FORMULA10But black offenders tend to have other characteristics, such as longer criminal histories, that are considered by most observers of the sentencing process to be legitimate reasons for harsher outcomes. Researchers have dealt with this correlation between race and legally relevant factors by dividing racial disparity into two parts: warranted and unwarranted disparity. Warranted disparity is the variation in sentence outcomes due to legally relevant factors, such as criminal history, crime type, and crime severity. Unwarranted disparity (Stolzenberg & D'Alessio 1994) is the variation in sentencing outcomes that can be reasonably identified as being the sole result of race or other extra-legal factors (e.g., gender), after all legally mandated sentencing factors are taken into account.2 Partialing out warranted and unwarranted disparity is generally done using standard regression techniques. In general, the body of research on unwarranted disparity in sentencing outcomes has shown that legal factors have large effects on sentencing outcomes. Furthermore, there is little evidence of direct racial discrimination once these legal factors are included in the statistical models. This evidence led Sampson and Lauritsen (1997:362) to conclude that "there is little evidence that racial disparities reflect systematic, overt bias on the part of criminal justice decision makers (as a whole)." In response, some researchers have argued for an interactive, rather than additive, model to examine whether racial discrimination occurs indirectly through certain court contexts (e.g., plea vs. jury trial) or individual characteristics (e.g., employed vs. unemployed). This can be done by including interaction terms in multivariate models (Miethe & Moore 1986), testing for differences among age and gender subgroups of each race group (Steffensmeier et al. 1998), or estimating separate models for each racial group (Albonetti 1997).3 This type of research has emphasized greater statistical rigor and model specification over the development of a theoretical framework for understanding the sentencing process (Albonetti 1991). But the statistical parsing of unwarranted and warranted disparity may conflict with the desire to understand the key factors driving the sentencing process. For example, Dixon (1995) tested her organizational context perspective on sentencing using the same basic "racial disparity" statistical model (described previously) as Albonetti (1991) used to test her bounded rationality model of judicial decisionmaking. …

Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge: Harvard University Press, 1999. xiv + 290 pages. $29.95 cloth; $18.95 paper. In 1959, the political scientist Charles Lindblom published a celebrated defense of incremental policymaking (Lindblom 1988a). In theory, Lindblom observed, policymakers are expected to formulate plans in a comprehensive fashion, clearly identifying their objectives and carefully comparing every alternative means of action. Yet in practice, Lindblom argued, comprehensive policy formulation is almost never performed. Policy-- making cannot begin with the ranking of goals because the necessary consensus on political ends usually does not exist and cannot be manufactured. With high-level agreement practically impossible, policymakers seek agreement on a more concrete plane: they limit their attention to policy alternatives that differ only slightly from the status quo, thereby reducing debate to a narrow set of marginal comparisons. Rather than developing a comprehensive account of the best policy option, policymakers simply muddle through, making whatever incremental judgments the prevailing conditions of incomplete information and partial agreement will allow. If one were to look for a contemporary exemplar of Lindblom's incrementalism, one might well be drawn to Justice Sandra Day O'Connor. Justice O'Connor currently sits in the center of the Supreme Court's ideological spectrum, a position that makes her views decisive in controversies ranging from abortion to affirmative action. O'Connor generally uses her swing position to forge a narrow path. She routinely limits her rulings to the facts of the case at hand, reaching results that resolve specific aspects of the dispute while leaving broader legal questions open (Maveety 1996). Instead of adhering to a comprehensive jurisprudential theory, she tends to fashion her opinions around limited cores of agreement, blurring hard-edged principles for the sake of compromise solutions. Much like Lindblom's prototypical policymaker, O'Connor moves from decision to decision, pursuing small-scale settlements rather than seeking sweeping conclusions. O'Connor is not the only Justice in the history of the Supreme Court who might be described as following a path of compromise and accommodation (Jeffries 1994). Yet, just as incrementalism runs counter to the expectation that policymakers will formulate comprehensive plans, O'Connor's strategy is at odds with conventional expectations about judicial action. According to the common ideal, judicial decisionmaking is meant to be rooted in the clear articulation and neutral application of general principles (Peretti 1999:11-35). The origin and content of these general principles may be conceptualized along many different lines. In whatever way they are understood, however, the principles are taken to be of primary importance. Judges should strive to assimilate each dispute into a principled order, articulating a framework of rules and standards capable of regulating subsequent judicial decisions (Wasserstrom 1961:14-22). In the ideal case, the principled legal order makes judicial action perfectly reasoned and predictable: every legal outcome is reached by the logical application of preexisting rules and standards to each new fact situation. Moreover, within such an ideal system the exercise of judicial power is restrained and impartial: court decisions do not depend on the private whim or bias of the judge presiding over the case, but on a known set of legal principles.1 The problem is not that Justice O'Connor falls short of the ideal, but that she does not appear to aspire to it in the first place. She inverts the ideal priorities by adjusting legal principles to suit political constraints. Like an ordinary politician, O'Connor seems to pay attention to the different interests at stake in a given controversy, seeking whatever reasons are acceptable to participating parties rather than strictly applying general principles that transcend the issue at hand. …

In 1992, the National Law Journal (NLJ) published a study claiming that the U.S. Environmental Protection Agency discriminated against minorities in its civil judicial enforcement actions by penalizing environmental law violators in minority areas far less than in white areas. NLJ claimed that this differential showed a lack of commitment to protecting the environment and public health in minority areas. This article augments, reexamines, and analyzes in a more sophisticated manner the available data. My empirical analyses demonstrate the unreliability of NLJ's methods and conclusions and indicate that minorities have not been discriminated against in these enforcement actions. Introduction Over the past decade, concern has grown about the impact of pollution on particular population groups. Some people have concluded that minority and/or low-income people bear disproportionately adverse health and environmental effects from pollution (Austin & Schill 1991; Bullard 1994a). This conclusion led to the environmental equity movement, which seeks the equitable treatment of people of all races, incomes, and cultures in the development, implementation, and enforcement of environmental laws and policies. The environmental equity movement emerged in the early 1980s (Hamilton 1995; Szasz & Meuser 1997). Subsequent studies and public attention raised concerns about environmental programs' fairness and protection, concerns that now receive increased attention at all levels of government, as well as in the private sector. The Clinton administration demonstrated its concern in an Executive Order requiring that federal agencies make environmental equity part of their missions (42 U.S.C. 4321 [2000]). Similarly, the U.S. Environmental Protection Agency (EPA) lists environmental equity among its priorities. In 1992 EPA created the Office of Environmental Equity (later renamed the Office of Environmental Justice) and commissioned a task force to address environmental equity issues, and it now oversees the National Environmental Justice Advisory Council, a federal advisory committee composed of citizens with relevant experience who offer guidance to EPA (U.S. EPA 1995a). Environmental equity research has been done on various topics-location and cleanup of contaminated sites (Hird 1993; Zimmerman 1993), siting of hazardous waste management facilities (Anderton et al. 1994; Boer et al. 1997), location of facilities using large amounts of toxic chemicals (Centner et al. 1996; Ringquist 1997), and distribution of air pollutants (Perlin et al. 1995; Brooks & Sethi 1997). One aspect of environmental equity that created particular controversy in recent years is alleged discrimination by EPA in its civil judicial enforcement actions-- cases in which EPA seeks civil penalties in court against environmental law violators. In 1992 this allegation appeared in articles in the National Law Journal (hereinafter the NLJ articles), a weekly legal periodical (Lavelle & Coyle 1992). The NLJ articles described NLJ's investigation into the environmental equity implications of various EPA actions. NLJ compared the civil judicial penalties against environmental law violators in disproportionately white, minority, highincome, and low-income areas, respectively. Based on this comparison, NLJ concluded that minority areas were discriminated against because violations there had substantially lower penalties than in white areas. NL believes that when EPA imposes higher penalties in one area compared to others, it demonstrates EPA's greater commitment to protecting the environment and people's health in that area. NLJ's theory is consistent with much of the reasoning behind environmental equity concerns. The basic assumption is that because of intentional discrimination or a lack of political power to effectively protest nearby environmental risks, those risks become disproportionately concentrated in minority and low-income areas. …

I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takengen, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges' perceptions of a more individualized society. Between 1960 and 1994, Islamic court judges in the Gayo Highlands of Central Aceh, Indonesia, radically changed the way they judged disputes over family property. Whereas once they had generally upheld local Gayo social norms (adat) about who received family property, by the early 1990s they consistently overruled settlements based on those same norms and redivided property according to Islamic law. From a conservative court that turned down requests to overturn past divisions of farm lands, the religious court became an activist court that routinely overturned such divisions. And yet over this time the relevant substantive law changed very little, and judges recognized that both adat and Islam provided legitimate bases for decisions. Why, then, and based on what reasons, did the court shift its overall stance so markedly? I take this question as my point of departure for exploring the recent social history of judicial reasoning in the Gayo Highlands, drawing on case dossiers, interviews with judges, and field research into the political and economic history of the region. The issues involved are broad ones. Judges everywhere find themselves having to select among competing legally relevant social norms, such as what counts as a contract, or where lie "the best interests of the child."1 Choosing among norms, or, more often, weighing them against each other, usually is shaped by a sense of community standards, by an estimate of how the choice will affect community life, or by policy preferences. Furthermore, this weighing is likely to change along with the social and political context in which judges live and work. Postcolonial societies offer particularly interesting places to study how judges have reasoned in the face of competing norms. Judges in these societies have been finding their interlegal feet amidst a multiplicity of statutes, court decisions, religious doctrines, and colonial-era treatises on "customary law."2 Their public statements on laws and customs often become flash points for national cultural debates. In most societies with large Muslim populations, these debates turn on judgments about the relative legitimacy of secular and religious sources of laws.3 In Indonesia, a multiconfessional state with the world's largest Muslim population, not only have there been extensive public discussions about the validity of claims based on customary norms, Islamic law, stat utes, and judicial decisions, but these discussions also have been part of a process of general, heightened reflection on the proper relation of Islam to national identity. In the Gayo courts judges have paid particular attention to local processes of reaching consensus, and their evaluations of such processes are of significance to broader political discussions in Indonesia. Achieving consensus through deliberation," musyawarah mufakat, a central element in Indonesian ideology, bears some relationship, not yet well understood, to local ways of resolving disputes. …

This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianismdecisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes. Introduction The assessment of the determinants of U.S. Supreme Court decisionmaking remains an intensely controversial aspect of judicial studies. Advocates of several broad approaches continue to debate which is the principal impetus of outcomes both in general and in specific legal fields.1 My inquiry offers one perspective to help untangle this controversy in the domain of racial discrimination cases in the post-Brown v. Board of Education (1954) period. Although the findings will not end the long-standing debate over what determines decisional outcomes, they do provide a clarified picture of the racial discrimination subfield and a suggestion for studying other specialized areas. My basic approach and specific research design are premised on the assertion that a clear understanding of decisionmaking is obscured by previous studies (both general and particularized) that tend to inflate the influence of majority preferences (thus discrediting institutionalism to an unwarranted extent) and also fail to provide a full account by focusing only on two competing explanations at a time. The strategy for systematically interpreting outcomes in this area rests on two novel tactics. The first tactic is to expand consideration of the potential role played by majority opinion. (I furnish a complete description and justification of this approach later.) This tactic offers an improved test of the majoritarian thesis. The second approach of this inquiry allows for the explication of three potential determinants of decisionsthe rules and structure of the institution itself, majority public preference, and the ideological predilections of the Justices. It thus provides a core comparison of these broad categories rather bluntly defined, as opposed to an exhaustive assessment of all potentially meaningful determinants. Since such a basic measure of outcomes in this field has yet to be undertaken, however, this is a necessary first step. The results of this investigation of constitutional challenges to racial discrimination suggest that even though the Supreme Court is insulated from majority preferences, its decisions are influenced by Justices' ideological leanings. More specifically, although white Americans (who in this area represent the majority, as opposed to the African American minority) are much more amenable to government action designed to end blatantly discriminatory laws and practices (de jure discrimination) than to the eradication of entrenched patterns of inequity (de facto discrimination), this distinction is not reflected in the decision record. Whether a case represents a challenge to de jure or de facto discrimination does not significantly influence its outcome. Furthermore, fluctuations in the general ideological temper of the nation also fail to affect rulings. However, although distancing itself from majority influences, the Court is not consistently protective of minority rights. The ideological composition of the Court displays a significant influence on verdicts; thus, when the Court is relatively more conservative, cases are less likely to be decided in the minority interest. …

The institutional environment in both the private and public sector, according to a wide range of observers, is increasingly "legalized": decisionmaking processes and substantive policies are increasingly subject to legal rules and procedural requirements that are enforceable in court. Although there is little dispute that legal liability has expanded in this way, there is great dispute about the effect of these changes, particularly their costs, on public organizations in practice. Some observers argue that legalization has imposed heavy costs, especially financial costs, on organizations; others, for a variety of reasons, argue that these costs are likely to be exaggerated. In this article I suggest that organizational expenditures on legal services are likely to be a valid indicator of certain important elements of the costs of administrative legalization. I present the results of a study of the legal services expenditures of 13 major U.S. cities over a 35-year period. The results indicate that legal services expenditures indeed have increased in many cities, although not as much as some commentators have speculated. Furthermore, there are significant variations in expenditure patterns among the cities, and a number experienced no long-term growth trend in legal services expenditures. It is widely recognized that the organizational environment in the United States has become more and more legalized, in the sense that decisionmaking processes and substantive policies in public organizations are increasingly influenced by legal rules and procedural requirements that are enforceable in the judicial system. As Rosenbloom and O'Leary (1997:v) observe, "In the aggregate, judicial decisions have required broad changes in administrative values, decision making, organization, processes, and policy implementation." Marc Galanter (1992) similarly has observed that life in the United States and several other societies is increasingly subject to legal forms and procedures, influenced by lawyers, and governed by formal regulations. A diverse range of scholars concur (Abzug & Mezias 1993; Edelman 1990, 1992; Friedman 1985; Sutton et al. 1994; Tate & Vallinder 1995; Teubner 1987). Tate (1995:28), for instance, has observed that a key element of "the judicialization of politics" is "the process by which nonjudicial negotiating and decision-making forums come to be dominated by quasi judicial (legalistic) rules and procedures." Similarly, Kagan ( 1991 ) has characterized American administrative processes as dominated by a culture of "adversarial legalism." While there is general agreement that the organizational environment has become increasingly legalized, the effects of legalization on organizations, particularly its costs, are a matter of great debate. Perhaps the most common view is that legalization has imposed increasingly heavy costs on organizations (see, e.g., Howard 1994; Olson 1991, 1997). Although these costs are not limited to monetary expenditures, most proponents of this interpretation posit that the monetary expenses of legalization are great and are indicative of other underlying costs (to organizational efficiency and the like). This view, though widely accepted, is not universally held. A diverse array of scholarship supports an alternative expectation: that we should find no substantial increase in costs, for one (or both) of two very different but not incompatible reasons. One of these reasons, according to some scholars, is that the costs associated with litigation and judicial orders are commonly exaggerated (see Duncombe & Straussman 1994; Eisenberg & Schwab 1987). The other reason that we may find little or no increase in costs is that some public organizations may have succeeded in instituting substantial reforms that have lessened their exposure to large expenses associated with legal liability. Although the question of financial expenditures associated with legalization is highly significant, there has, unfortunately, been very little systematic research on the matter. …

During the past 20 years, the American politics of race has been characterized by fundamental disagreements over the legitimacy of racial preferences. I trace the development of these disagreements within the Supreme Court's jurisprudence of affirmative action. I argue that the content and endurance of the Court's ambiguous jurisprudence stems from the particular politics of constitutional adjudication. More specifically, I argue that the overarching task of the modern Court is to justify its actions against a baseline of interestgroup politics. The uncertain logic of affirmative action creates a position for the Court within the group process, meeting the judicial challenge of self justification even as it leaves the ultimate validity of racial preferences open to question. With the exception of the early years of its existence, when no official reporter of judicial decisions existed and no requirements for filing judicial decisions were in place, the Supreme Court has always rendered its major decisions as written opinions (Currie 1981 ) . For students of the Court, the structure and coherence of these written opinions have furnished important indicators of institutional performance. Conventional legal scholars, for example, have typically viewed poorly reasoned opinions as an institutional failure, a sign that members of the Court have not articulated and defended the neutral principles necessary to secure the rule of law (Wechsler 1959; Peretti 1999:11-35). Political scientists, on the other hand, have usually accepted inconsistencies within and between opinions as inevitable institutional outcomes, clear evidence that the Court is a political body driven by the conflicting policy preferences of its members (Segal & Spaeth 1993; Epstein & Knight 1998). In this article, I examine the Supreme Court's affirmative action decisions, a body of opinions shot through with unresolved tensions. I find that this tangled set of cases is not fully explained by either the standard legal or political science approaches. As a result, I argue that the effort to understand the ambiguities of affirmative action requires a different kind of inquiry, focused on the pattern of political ideas that undergird contemporary constitutional adjudication. My argument proceeds in three sections. In the first section, I trace the central tensions in the Court's affirmative action decisions back to University of California Regents v. Bakke ( 1978) . From a conventional political science perspective, the endurance of Bakke's incongruities may be explained in terms of individual judicial preference: for the past 20 years, Justices with the critical votes in affirmative action decisions have been committed to compromise. In turn, from a conventional legal perspective, this judicial preference for compromise may be criticized for its lack of coherent principles: by failing to articulate an unequivocal approach to affirmative action, Bakke and its progeny maximize public uncertainty and foster arbitrary judicial action. I call into question both of these approaches, arguing that each evades the substance of Bakke itself The argument from judicial preference provides reason to expect some kind of affirmative action muddle, but it fails to examine the specific content of the muddle the Court has produced. The appeal to legal principle compounds the problem of evasion by dismissing the conflicting claims the Court has made for the sake of unified principles the Court has failed to endorse. Contrary to these approaches, I argue that the task is to account directly for Bakke's unresolved tensions, to explain their particular content and purpose. In the second section, I consider Cass Sunstein's (1999) recent effort to provide such an explanation. Sunstein situates the Court within a particular political context, interpreting the uncertainties of Bakke's logic against the persistent divisions of the affirmative action debate. …

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law

Feminists' opposition to a state trial judge in a retention election provided an opportunity to explore important issues about legal consciousness and dif ferences between negative and affirmative resistance. Three questions about legal consciousness and resistance are addressed: What effect does an encounter with an allegedly bad judge have on people's legal consciousness? Under what circumstances will people engage in negative or affirmative resistance against a legal encounter they perceive as unjust? What instrumental effects on institutional practices and what constitutive effects on legal consciousness can such resistance have? The article draws on narrative analysis to explore the conditions for transformation of legal consciousness and mobilization of political action in a judicial retention election. Storytelling pervades the legal process, as much scholarship has observed (e.g., Brooks & Gewirtz 1996). Despite the traditional view of law as a "logico-scientific" form of discourse that makes truth claims falsifiable through logic (Bruner 1986:11), the legal fact-finding process is clearly based on narrative forms of discourse. Parties and witnesses give testimony, and truth arises from assessing the verisimilitude of the stories. Another way in which storytelling enters the legal system is in the processes for selecting and retaining judges. Stories about competence and character are told the public or the appointing authority. For example, the Senate confirmation hearings for Clarence Thomas could be viewed as a contest between the stories of Thomas as a sexual harasser and Thomas as an up-by-thebootstraps, self-made man. After his appointment an African American feminist complained that Anita Hill's story fell on deaf ears because black women have no story that resonates with the American public as much as Thomas's narrative of a "high-tech lynching" (Crenshaw 1992). Elections, including those for judgeships, can be seen as stories told to voters. One argument for partisan over nonpartisan election of judges is that the former invokes a story that voters can relate to (namely, Democrats versus Republicans) and therefore generates more voter interest than the latter (Dubois 1986). In uncontested retention elections judges in theory run on the story of their records, but in reality there is usually no story at all and the voters know virtually nothing about the judge (Hall & Aspin 1987).1 In recent years the occasional exceptions tend to be ideologically charged retention elections in which organized interest groups challenge judges because they made the "wrong" decisions on hot-button issues such as capital punishment in California (Wold & Culver 1987) and abortion in Florida (Webster 1995:36-37). Here the challengers' story is typically about the bad, "activist" judge imposing his or her views on the public. This article tells the story of a retention election that became a two-sided story when a grassroots group of women organized a challenge to a state trial court judge. In the summer of 1994 complaints suddenly burst on the public scene about a judge who had served for seven years and seemed to have at least an average, if not better, career on the bench to that point. His opponents charged the judge with prejudging issues and displaying bias on the basis of gender, religion, and sexual orientation. In response to these charges, organized support emerged for him that emphasized the importance of judicial independence. In the election the judge narrowly retained his seat with 50.4% of the vote. This relatively rare challenge to a judge in a retention election provides the opportunity to examine important issues about legal consciousness. Legal consciousness, as Michael McCann (1994:7) defines it, is "the ongoing, dynamic process of constructing one's understanding of, and relationship to, the social world through use of legal conventions and discourses." Legal consciousness is revealed in and shaped by the conventions and discourses occurring in courtrooms, judicial opinions, everyday talk about rights and other legal topics, and also in judicial elections. …

Analysis of courtroom testimony heard in London's Central Criminal Court in the 10 years following the McNaughtan acquittal (1843) reveals the effort of medical witnesses to establish a distinctive and essential voice in the Victorian insanity trial. Three trials that illustrate this effort are examined for the manner in which practitioners of mental medicine distinguished their opinion from the layperson's fact and, in the process, engaged pivotal issues for the determination of criminal responsibility. Their testimony and the attorneys' questions that elicited it suggest that whatever reliance the judiciary might have placed on the McNaughtan Rules to confine testimony to the defendant's capacity to "know fight from wrong," medical witnesses devised ways to circumvent and indeed dismiss the relevance of this particular inquiry. he difference between asking a witness, "Did the boy not tell you something about his grandfather?" and "Do you consider when he did this, he did not know that poisoning his grandfather was a wrong act?" is the difference between asking a witness to report a fact and asking him to deliver an opinion. Although all witnesses in Anglo-American jurisprudence are ostensibly limited to reporting only their direct sensory perceptions to the court, there exists a class of witnesses entitled to draw inferences, form opinions, and advise the jury in matters thought to be beyond the ken of the ordinary citizen. The only skill required to answer the first question is the possession of auditory sensation: What was it the witness actually heard?1 The second question asks for the most subtle of judgments: an opinion that the defendant could commit an atrocious crime without knowing that committing it would be wrong. What does the phrasing of this question-and indeed the fact that it was asked at all-suggest about the common law's willingness to entertain a body of opinion that claimed unique insight into the mind of the mad? Both questions cited above are found in an 1848 insanity trial heard at the Old Bailey, London's Central Criminal Court. That a self-proclaimed expert in mental medicine appeared in court to answer questions about mental derangement was not a novel occurrence. Physicians, surgeons, and apothecaries had been appearing in English courts to comment on the medical features of insanity since at least 1760. And it was hardly unusual for the defendant's mental derangement to be associated with physical pathology, as would be the case with the youthful poisoner. Neighbors, lovers, and co-workers of the allegedly insane routinely commented on physiological anomalies ranging from head wounds to fevers, war wounds to riding accidents, head sores to fits. What would set mid-Victorian insanity trials apart was the medical witness's venturing into the moral consequence of such physical ailments. In the case cited above, the young defendant's ringworm had purportedly penetrated his brain, not only driving him mad but "prevent[ing] him from distinguishing right from wrong." To be sure, laypersons were in the habit of associating physical anomalies with aberrant behavior, but they confined their testimony to the presence of insanity. The emerging specialist in mental medicine, in contrast, endeavored to construct a more ambitious connection, one that speculated on the implications of physical and moral lesions for the mental contemplation of a crime. This effort to delve into the mental consequence of disease was one way the medical specialist distinguished his testimony from the layperson's. A second, and more consequential, undertaking was his challenge of the juror's belief that there was anything self-evident in discovering madness. By questioning the conventional signs and assumed meanings of bizarre action, the medical witness presented a construction of nonintentional behavior that would eventually bring him into direct conflict with the law's criterion for assigning criminal responsibility. …

This investigation examines the success of various types of litigants appearing before the U.S. Courts of Appeals from 1925 to 1988. The analysis parallels the earlier studies by Songer and Sheehan (1992) and Wheeler et al. (1987) that applied the core concepts introduced by Galanter's groundbreaking analysis of why the haves come out ahead to study litigant success on the U.S. Courts of Appeals and state courts of last resort. The findings suggest that repeat player litigants with substantial organizational strength (haves) are much more likely to win in the federal courts of appeals than one-shot litigants with fewer resources. The haves win more frequently in published decisions, even after controls are introduced for the ideological makeup of the panel. The advantage in appellate litigation enjoyed by repeat player haves is remarkably consistent over time. In particular, the U.S. government has compiled an impressive record in these courts by dominating opposing litigants over the 64-year period of analysis

Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as reflected in judicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlement: more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of justice during the Palestinian Intifada. It is an accepted postulate that courts are important social institutions having a broad influence on political and social processes. Nevertheless, the techniques by which judicial influence is exerted have yet to be fully explored by social scientists. Declarations included in judicial decisions may, in some cases, stir a process of social change. Likewise, the outcomes of judicial proceedings, whether in an individual case or a series of related cases, may have wide effects on political institutions. judicial rhetoric and formal court orders are not, however, the only ways by which courts may influence the social environment. Other, albeit less formal, methods may be used by judges to achieve social goals. In particular, courts may pressure the parties to litigation to bring about an out-of-court settlement and thus avoid the need for a final judicial disposition. judges may also express their opinion on a certain point of law or policy, either in court during the course of litigation or via other channels of communication, and thus affect the motivation or the persistence of certain parties to pursue legal proceedings (Mather 1995; Atleson 1989). The role of informal judicial techniques within the process of judicial intervention in political and administrative processes is the focus of this article. I argue that in some cases, in order to evaluate the role courts play in society, it is not enough to study the open rhetoric and the final orders given by courts. Rather, one must also take into account informal techniques used by courts, as well as the relationship between those techniques and the formal methods of influence, so as to obtain the full picture of the courts' involvement within a particular field of social activity. This is particularly true when courts are required to intervene in sensitive political problems, such as in the protection of human rights in emergencies. Constitutional theorists maintain that courts are required to defend individual rights, particularly those rights of minorities or disadvantaged groups in the relevant political community. Courts are also expected to refrain from excessive interference in decisionmaking by the other two branches of government. Both these themes derived from the assumption that courts, unlike the legislature and the executive, are not representative institutions. They are not required to reflect in their decisions the popular preferences of the majority. Rather, they are expected to do the reverse: to confront popular decisions that endanger human rights (Bickel 1962; Ely 1980; Ackerman 1984). The "success" of courts in maintaining their institutional autonomy, according to this line of thinking, is revealed by the ability to withstand political pressures and perform their countermajoritarian role (Barzilai 1997). To what extent, however, do courts fulfill their function of protecting individual rights against governmental actions? …

In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These findings suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal. Stratification within the private legal profession in the United States has been well documented (Abel 1988; Heinz and Laumann 1994). In general, scholars have divided the legal profession into two groups or hemispheres, elite lawyers and ordinary lawyers. Elite lawyers belong to large firms, represent large corporations and wealthy individuals, and have high incomes on average. In contrast, ordinary lawyers practice alone or in smaller firms, represent one-shot individual clients, and have lower incomes on average (Abel 1988). The higher compensation and prestige associated with employment in elite law firms suggests that this stratification is related to the quality of representation, which may ultimately be related to the likelihood of success in litigation. This article evaluates this impression by assessing the impact of attorney expertise in appellate litigation. Our analysis focuses on products liability cases in the U.S. Courts of Appeals. In addition to providing a sufficient number of cases that present roughly comparable fact patterns and issues, this subset of civil appeals provides a particularly appropriate context for analyzing differences in counsels' expertise. In the typical products liability case, an individual "one-shot" plaintiff sues one or more corporate "repeat player" defendants. Defendants in these cases often have the benefit of previous experience in similar litigation, in-house counsel to provide guidance, and the financial resources necessary to retain additional expert representation. They also have the incentive to do so; the stakes in products liability lawsuits can be very high in both financial and reputational terms (Viscusi 1991). Indeed, an adverse judgment in a products liability case, whether at trial or on appeal, may influence subsequent product sales or inform other injured parties that a case is worth bringing (Priest & Klein 1984; Viscusi 1991). In contrast, plaintiffs in products liability lawsuits are often one-shot players interested solely in the outcome of their case. Unlike large corporate defendants, plaintiffs do not have the resources to shop for expert counsel. Instead, they rely on attorneys who will represent them on a contingency fee basis, rather than an hourly rate (Gross & Syverud 1996). Although the high stakes of products liability litigation has created a financial incentive for many plaintiffs' lawyers and firms to orient their practice in this area, individual plaintiffs may not be capable of making informed judgments when selecting firms or attorneys best suited to represent their interests. …

Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here-one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings. Judicial scholars have not often systematically examined changes in the courts' policy product-legal rules (Epstein & Kobylka 1992; Walbeck 1997). While Spaeth (1965) and others (Peltason 1955; Schubert 1965) state their preference for moving away from doctrinal analysis, imbued as it often is in normative issues, the policy significance of legal rules adopted by courts has not been ignored. Indeed, Segal and Spaeth (1993:261) recognize that the Supreme Court's opinion "constitutes the core of the Court's policy-making process." This is because court opinions affect more than the parties to the current litigation. The rules articulated bv courts, like other institutions, guide behavior by providing information about mutual expectations and providing sanctions for noncompliance (Knight 1992). Hurst (1956), in discussing the development of law governing the institution of private property, maintained that "legal procedures and tools and legal compulsions. . . create a framework of reasonable expectations within which rational decisions could be taken for the future" (pp. 10-11). As Justice Holmes put it, a person's compliance with his or her legal duty is based on "a prophecy that if [that person] does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money" (1897:461). In this respect, court decisions derive significance from the impact of their rules on expected patterns of behavior and their sanctions for violations of those patterns. If the policy significance of court decisions lies in the legal rules they contain, it is important to understand what influences the law's development. Although there are numerous accounts of events surrounding important court decisions (see, e.g., Faux 1988; Friendly 1981; Kluger 1975; Lewis 1964), few systematic attempts have been made to examine legal development. Some scholars have studied the Supreme Court's decision to overturn past decisions (Brenner & Spaeth 1992; Kemper 1997; Spriggs & Hansford 1998). These studies examine explanations for whether the Court overturns a particular decision. Epstein and Kobylka (1992) examine doctrinal change in the Supreme Court's abortion and capital punishment decisions, exploring the influence of the Court's composition, the political environment, and the arguments presented to the Court by the litigants and amici. I have developed a measure of legal change and applied it to the Supreme Court's search and seizure decisions to test the influence of judicial preferences, the litigation environment, and the political environment (Wahlbeck 1997). These studies all investigate legal development in the Supreme Court but overlook the substantial role played by lower federal courts in the formation of legal doctrines. As reflected in the judicial impact literature, much of legal development occurs in the lower courts. The judicial impact literature reveals that lower courts often have substantial authority to modify the law (Mather 1995; Murphy 1959). …

Studies of legal decisionmaking have focused traditionally on how social influences, particularly the relative social standing of competing parties, affect case outcomes. More recently, sociolegal scholars have directed their attention to the significance of cultural categories in shaping case-based decisionmaking. The authors here examine how both social and cultural factors shape judicial decisions and their meanings for a congregation of court cases precipitated by the AIDS epidemic in the United States. Their logistic regression analysis of the opinions of 181 AIDS-related cases decided in the early years of the epidemic (1983-89) finds that two social factors, the relative social standing of parties and the types of claims brought to the court, and two cultural factors, the court's use of negative AIDS metaphors and references to individual rights, are significantly related to case outcome. Finally, in line with M. Galanter's notion that case congregations have histories that involve development and change over time, their temporal analysis reveals the emergence of two case congregations and suggests how each serves to bolster the legitimacy of the judiciary amidst social crisis

We discuss capriciousness in decisions to charge homicide defendants with capital crimes. We propose using Shannon Information to assess capriciousness in a charging system and apply Shannon Information to analyze new data from San Francisco County, California. We show that about two-thirds of the potential systemic capriciousness is removed by the explanatory variables available. The one-third remaining is dependent on inherently unstable features of charging practices that necessarily produce capriciousness

The A. extends recent theorizing on 19th and early 20th century social control to the punishment of minor offenders in the American South. Despite surface differences in state control and in court contexts, the punishment of convicted misdemeanants strikingly resembled its more serious counterpart. Depressed economic conditions adversely affected all punishment rates, regardless of race. Although more circumscribed in impact, racial inequality and labor supply and demand also affected incarceration in the chain gang.

The image of courts as impartial and independent sources of authority is considered a prerequisite if they are to play a legitimining role. Yet many studies suggest that courts systematically support and uphold state-sponsored policies. I ask how courts can support dominant political interests and at the same time appear impartial. A solution is suggested by looking at highly plblicibdml judicial decisions by Israel's High Court of Justice in which state policies concerning the Israeli occupied territories were overruled. Such cases, while rare, nevertheless reinforce the legitimacy of courts. Consequently, decisions that counter some governmental practices allow courts to confer legitimacy on other and sometimes similar governmental policies. Finally, I place the findings in a eomparative context and outline a possible explanation for the circumstances under which landmark decisions are reached.

This article reports on research evaluating the impact of five Pennsylvania Supreme Court decisions on five Pennsylvania state agencies. Rational choice theory is used to explain several different responses to the judicial decisions: (1) initiating a search for more information, (2) conducting an extensive search, and (3) complying with the court decision and degree of compliance. The analysis demonstrates that the decision to initiate a search depended upon the agency's interpretation of the judicial decision as adverse. The extent of the search was related to the enforcement possibilities. The degree of compliance differed according to whether the agency viewed the decision as adverse and what resources the agency had at its disposal. In general, all of the agencies failed to comply actively with the state court decisions.

Several courts of limited jurisdiction currently exist in the federal judicial system, and new specialized courts have been proposed. Opponents of some specialized courts have pointed to the potential policy implications of judicial specialization, and their arguments merit attention. In this article the effects of specialization on the influence of litigant groups over judicial decisions and on the substance of judicial policy are analyzed in general terms. These effects are then examined in greater depth through a case study of the U.S. Court of Customs and Patent Appeals. The findings are complex, but they indicate that specialization may have a significant impact on judicial behavior. This impact should be taken into account in decisions whether to create courts of limited jurisdiction.

Taking advantage of the quasi-experimental research design afforded by the "circuit" system of court organization used by the Iowa trial courts, this research investigates the "sharing" model of representation. In order to insure against spurious results, controls are introduced for three types of influences on sentencing decisions: defendant and case attributes, judge attributes and role orientations, and local system practices. Analysis of a path model consisting of measures of sentencing behavior, seriousness of crime in the local jurisdiction, and perceptions of crime seriousness reveals that onesixth of the variance in sentences can be explained. However, substantial variation across judges in responsiveness to local norms is also discovered.

This research examines the linkages among institutional legitimacy, perceptions of procedural justice, and voluntary compliance with unpopular institutional decisions within the context of political intolerance and repression. Several questions are addressed, including: To what degree do judicial decisions contribute to the acceptance of unpopular political decisions? Do court decisions have a greater power to legitimize than the decisions of other political institutions? Are courts perceived as more procedurally fair than other political institutions? Do perceptions of procedural fairness-be it in a court or legislative institution-contribute to the efficacy of institutional decisions? The basic hypothesis of this research is that to the extent that an institution employs fair decisionmaking procedures, it is viewed as legitimate and citizens are more likely to comply with its decisions, even when they are unpopular. Based on an analysis of national survey data, I conclude that, although perceptions of institutional procedure have little impact on compliance, institutional legitimacy does seem to have some effect. The United States Supreme Court in particular seems to have some ability to elicit acceptance of public policies that are unpopular with the mass public. This effect is greatest among opinion leaders. I conclude with some observations about how these findings fit with the growing literature on procedural justice and with some thoughts about the implications of the findings for the protection of democratic liberty.

This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute-extra-legal factors-are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.

Previous research suggests that differences in judicial decisions stem from differences in personal characteristics of the decision-maker. Dutch private law proceedings permit a research approach in which the judicial decision-making task is simulated by presenting written decisional problems to judges. Judges (N=114) made decisions on the same nine cases and completed questionnaires on role conceptions and personality. Findings suggest that judicial decisions are only moderately influenced by the personal characteristics of the judges. The judges, however, differed considerably in their decisions. Neither the influence of personal characteristics of the judges nor the characteristics of the cases can explain to a substantial extent the differences in the decisions. It was concluded that judicial decisions stem from an interaction of personal and case characteristics.

Obviously judicial decisions are not made uniformly. Decision are made according to a host of extra-legal factors, including the age of the offender, his race, and social class. Perhaps the most obvious Pxanple of jidicial discretion occurs in the handling of cases of peisonl from minority groups Negroes, in comparison to whites, are convicted with lesser evidence and sentenced to more severe pulnishments.

Professions are historically specific institutions for organizing the production and distribution of services. American lawyers constructed the contemporary legal profession between the 1870s and the 1950s by forming local, state, and national bar associations through which they sought, with considerable success, to control the production of and by producers of legal services. In the last two decades, these structures of control have significantly eroded. Lawyers exerted no restraint over the threefold increase in law students since the early 1960s or the changes in the composition of that student body. Restrictive practices taken for granted for half a century have been summarily eliminated by judicial decisions and executive action. To the extent that lawyers have responded by seeking to create new demand, they run the risk of intensifying competition, becoming more dependent on the state, and organizing hitherto atomistic consumers into collectivities that can challenge professional dominance. The image of the profession as a homogeneous collection of independent practitioners is harder to maintain. The proportion of employees is growing, solo practitioners are declining in the face of a hostile economic environment, and units of production are growing in size and becoming more bureaucratic. Divisions of race, gender, age, and class, superimposed over the differentiation of lawyers among structures of practice and the stratification of private practice into two hemispheres, make professional unity increasingly problematic. For similar reasons, self-regulation is being undermined from within while it is challenged from without. These cumulative transformations demand that we reconsider whether it is useful to continue thinking of the practice of law as a profession.

ANY RELATIVELY STABLE POLITY must possess means for converting many, if not most, demands made on political authorities into satisfying outputs, whether material or symbolic. Failure to cope with pressing demands might lead to a severely dysfunctional loss of public support for particular officials as well as for the regime itself. On the other hand, efforts to meet demands through blatant violations of accepted rules can also cause great loss in public support.'

PFRAPS THE MOST ARRESTING conclusion in the summary of the Coleman Report is the statement: "a pupils achievement is strongly related to the educational backgrounds and aspirations of the other students in the school" (p. 22). The point is stated more forcefully later, in the body of the Report: "Attributes of other students account for far more variation in the achievement of minority group children than do any attributes of school facilities and slightly more than do attributes of staff' (p. 302). I always thought so. I like this finding because it coincides with my own views about social democracy and the schools. This was forcefully expressed in 1950 by Chief Justice Vinson, when the Supreme Court ruled racial isolation of a single Negro in the Texas Law School constitutionally unequal on grounds that fellowship and extracurricular association with other students were as essential to legal education as were equivalent teachers, books, and lessons. Now in the Coleman Report there is persuasiveness in documentation and analysis for this view which is more convincing than personal or judicial opinion. This is one of several points I have selected for comment from a series of recent social science reports on race as a factor in national school policy. In looking directly at only a few points one can merely pause to salute the energy, daring, intelligence, and skill of the social scientists who have prepared these stimulating, impressive, and important documents. Although the Coleman Report contains no recommendations as to what policies or programs should be adopted by government to improve educational opportunity in light of the findings, there have already been many public actions which, by design or coincidence, accord with its

Only a few years ago it was customary and appropriate to begin an essay on Supreme Court efficacy by lamenting the paucity of empirical studies dealing with this problem. Such an introduction is no longer in order, since we have recently witnessed a flourishing of research on the actual consequences of judicial decisions. Both the appearance of at least one book of readings on Supreme Court impact (Becker, 1969) and the focusing of panels around this topic at political science conventions are indications of the emergence of "legal impact" as a significant field of scholarly inquiry. Ironically, however, the proliferation of impact studies has muddled our understanding of judicial effectiveness as much as it has clarified it. After surveying the literature reporting the reactions of police, school teachers, draft board members, and the like to various Supreme Court decisions, one is bewildered if he attempts to relate, reconcile, or "propositionalize" the hodgepodge of findings that has accrued. We are left with the common sense truism that patterns of compliance and defiance with the Supreme Court vary-from decision to decision, from community to community, and from individual to individual. Such a trivial conclusion could have been reached by anyone who simply reads Time Magazine and notes, say, the continuation of police harassment of minorities and the decline of sex censorship.