Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Melody and Law's Mindfulness of Time

Abstract. A structured awareness of time lies at the core of the law's distinctive normativity. Melody is offered as a rough model of this mindfulness of time, since some important features of this awareness are also present in a hearer's grasp of melody. The model of melody is used, first, to identify some temporal dimensions of intentional action and then to highlight law's mindfulness of time. Its role in the structure of legal thinking, and especially in precedent‐sensitive legal reasoning, is explored. This article argues further that melody‐modeled mindfulness of time is evident also at a deeper and more pervasive level, giving structure to the distinctive mode of law's normative guidance. The article draws one important theoretical consequence from this exploration, namely, that the normative coherence of momentary legal systems depends conceptually on their coherence over time.     

Jurisdiction,Crime, and Development: The Impact of Public Law 280 in Indian Country

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments and increased the extent of nontribal law enforcement in selected parts of Indian country. Where enacted, the law fundamentally altered the preexisting legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socioeconomic outcomes. The law's controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law's endogenous nature. We examine the law's impact on crime and on economic development in U.S. counties with significant American‐Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law's politico‐historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law's adverse impact is robust and noteworthy in magnitude.     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

Why Do the European Court of Justice Judges Need Legal Concepts?

The article considers the reasons why the European Court of Justice (ECJ) judges need legal concepts when they pronounce their judgments. It points out that the ECJ as a law‐interpreting and an ipso facto law‐making court needs legal concepts to communicate results of its interpretative and law‐making enterprise. The article also shows how in the context of Article 234 EC preliminary ruling procedure legal concepts become useful tools of portraying ECJ judgments as mere products of interpretation and not as the results of subsuming the facts of the case into a legal provision. It is by means of application of legal concepts, that the ECJ judges are able to justify that they are not overstepping the mandate they have been entrusted with. In the same time the use of legal concepts enables them to engage in dialogue with national judges, who seek guidance as to the content of EC law rules, and to maintain a strong doctrine of precedent. Most importantly, however, the use of concepts promotes coherence which, the article maintains, is the primary source of Community law's authority, and thus constitutes the foundational technique of persuading the relevant audience that Community law is indeed a legal system.     

When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness.     

Basketball in the Key of Law: The Significance of Disputing in Pick‐Up Basketball

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman's Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in informal “pick‐up” games transform the meaning of their activity through disputing. By playing in a legalistic way, players constitute the game as “real” and “serious” rather than “mere play.” The analysis tracks basketball players in the heat of action as they perceive the game, call rule violations, contest those violations, and ultimately give up. Players organize each phase of the dispute's natural history in the “key of law” by constructing and comparing cases, invoking and interpreting rules, setting precedent, arguing over procedure, and proposing solutions. Through these practices, players infuse the game with rich meaning and generate the motivational context demanding that the game be treated as significant. This analysis contributes to an understanding of legal ontology that envisions law's essence as potentiating rather than repairing normative social life.     

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long‐term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

The Negotiability of Promissory Notes and Bills of Exchange in the Time of Chief Justice Holt

This paper explores the development of bills of exchange and promissory notes in England during the seventeenth and eighteenth centuries. It will be argued that the early law of negotiability was founded on a principled interpretation of the common law and that parliament's eventual rejection of this law resulted in a half-century of confusion. This time period, however, was fundamental in the development of the modern principle of negotiability as the courts struggled to create a workable framework for the transfer of written instruments. This paper examines the early conceptual difficulty of transferring written instruments and studies why bills of exchange were capable of transfer, despite the common law's bar on the assignment of choses in action, whereas promissory notes were not considered transferable at common law prior to the eighteenth century. The most important figure for the development of this area was Chief Justice Holt, whose legal interpretation of the transferability of bills of exchange was based on clearly defined and long-standing principles of common law. This interpretation of the common law was viewed as a hindrance to trade, and in response to Holt CJ's decisions, parliament passed the Statute of Anne 1704, allowing promissory notes to be transferable in the same manner as bills of exchange. This began to collapse the distinction between bills of exchange and promissory notes, which created numerous conceptual difficulties in the law of negotiable instruments. It was not until the case of Grant v Vaughan, heard in 1764, that the courts fully developed a new framework for the negotiability of written instruments. This early law displays the difficulty that courts had in developing the underlying principles of the assignment of written instruments, and deciphering its development is fundamental in understanding the modern principle of negotiability.     

Who are Law's Persons? From Cheshire Cats to Responsible Subjects

What is it to be a legal person? A review of the jurisprudence of persons reveals considerable confusion about this central legal question, as well as deep intellectual divisions. To certain jurists, law's person should and does approximate a metaphysical person. Depending on the metaphysics of the jurist, the legal person is thus variously defined by his uniquely human nature, by his possession of a soul, or by his capacity for reason, and therefore his moral and legal responsibility. To other jurists, law's person is not a metaphysical person but rather a pure legal abstraction; he is no more than a formal, abstract, but nonetheless highly convenient device of law. This paper endeavours to bring some order and clarity to these scholarly debates about the nature of legal personality. It also considers their implications for feminist legal theorists, with their enduring interest in the character of law's subject.     

The role of standardization and interoperability in copyright protection of computer software

Copyright protection for computer software often presents a contradiction between law and the desired public policy that is the law's inspiration. The law provides incentives to individuals to create intellectual property by protecting authors through monopolistic controls on copying and distributing the authors' work. Conferring too much protection, however, may reduce incentives to create competitive products in the same market, defeating the law's constitutional purpose of encouraging the “Progress of Science and the useful Arts.” Two characteristics of computer software, technical standards and interoperability, compound this contradiction. Using economic literature on standards and the recent line of Lotus v. Borland cases, this article examines the role of standardization and interoperability in copyright protection of computer software, and suggests a part for the fair‐use defense in such cases.     

Politics by Other Means in South Africa Today

Rick Abel's classic Politics by Other Means (1995) used South Africa to argue for law's ‘potential nobility’, but it did so avoiding a heroic mode characteristic of much anti-apartheid writing. Abel showed how law could, with strenuous exertion, be turned into a defensive shield for the oppressed. As a sword, however, it was ‘two-edged’. It allowed the powerful to frustrate or overturn hard-won symbolic victories. Recently, the heroic mode has returned to South Africa. The Constitutional Court, in particular, is lauded for having combated ‘state capture’ under deposed President Jacob Zuma. A closer examination of this period, however, does much to vindicate Abel's earlier scepticism about law's offensive value. The spectacular deployment of law to fight politicians’ crimes has exposed the judiciary to unexpected political threats. Meanwhile, civil society's efforts to entrust judges with administrative duties shirked by the government has inevitably entailed the sacrifice of some rule of law values.     

Contradictions and inconsistencies in Australia's mandatory data breach notification laws

This article critically examines the objectives and practical operation of Australia's mandatory data breach notification [MDBN] law. We find that the scope and application of Australia's law do not reflect the legislative objectives underpinning the law. The wording of the law is ambiguous, and it is beset by conceptual inconsistencies. The law also fails to adequately consider the needs of individuals whose personal information has been compromised in a data breach. As a result, Australia's MDBN law is unlikely to meet the needs of organisations that have experienced a data breach, or of individuals who are notified. We conclude by identifying options for reform to better reflect the law's rationale and to better achieve its objectives. Comparisons are made with similar laws in force in the United States and with the General Data Protection Regulation.     

Right to die,euthanasia, and community sentiment

Three questions guide this research: Would nullifications occur in active euthanasia cases where the right to die is asserted? What sentiments would the community express, and how would those sentiments relate to nullifications? What variables would best predict verdict? Mock jurors offered reasons for their verdicts for four cases where all elements of first degree murder appeared to be satisfied. The cases varied thecompetency of the patient, theintent of the patient—if the wish to die was expressed, and whether a living will was present, and whether the defendant soughtcourt approval. Sizable nullifications (25% not guilty verdicts) and partial nullifications (39% guilty to lesser offenses) resulted. Some subjects viewed this as not a legal matter, but a private matter; others acknowledged the law's place, but viewed the law's position as wrong; still others nullified by using a common sense rather than a legal definition ofmalice. In this life-and-death matter, black letter law and common sense justice were not only far apart, but, in the eyes of some, irreconcilably so.     

Authority and Representation

The act of `setting the law' enjoysa central position in Kelsen's theory of authority.His analysis of this act criticizes, amongst others,the assumption of natural-law doctrines that norms areobjective when they duplicate a content given directlyto cognition and independently of the act whereby thenorm is enacted. Correctly, Kelsen attacks the conceptof representation underlying this assumption as anexample of metaphysical dualism and a copy theory ofknowledge. Does, then, an alternative understanding ofauthority require scrapping representation from atheory of positive law? Or does it requireinterpreting representation differently? Following thesecond path, this paper reconstructs the act ofsetting the law in terms of the critical concept ofrepresentation developed by Ernst Cassirer andsuggests how, thus reconstructed, the structure ofthis act can account for the law's authority and itscontingency.

     

Seeking Shelter in Personal Insolvency Law: Recession,Eviction, and Bankruptcy's Social Safety Net

Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.     

Mos Geometricus and the Common Law Mind: Interrogating Contract Theory

Euclidian theories have it that there exist one or a small number of apex principles from which the entire fasciculus of rules of contract law can be logically deduced. Two arguments are marshalled against the Euclidian project. First, that it has been unsuccessfully attempted before – in the form of the nineteenth century contract law treatise which emulated the civil lawyer's rationalistic model, mos geometricus – cautioning us against setting much store by its present reincarnation. Second, that the common law's methodology makes it resistant to this form of theorising. Euclidian theory presupposes a picture of rules on which: a) cases involve an application of logically prior rules; b) rules are reliably identifiable by different actors in the legal system; and c) rules normatively range over an indefinite spectrum of future cases. It will be argued that the common law defies this picture of rules thus rendering Euclidian theory analytically impossible.     

Governance,Proceduralisation and Justice: Some Challenges to the Legal Paradigm

In 1989, Rudolf Wiethöltner alleged that we are witnessing a ‘failure of law’ in terms of its obligation to achieve ‘just law’. This paradox at the very heart of law – in essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease trying to attain this goal – has been accommodated to a degree by the utilisation of a proceduralist paradigm that relies upon the contingency of governance, but this is now coming under renewed scrutiny. This article will put forward three arguments in this respect. The first section will argue that the turn to governance and the resultant procedural paradigm are both consequences of the ‘failure of law'; the second will point to the inherent weaknesses of the procedural paradigm that can be said to stem from this very failure; while the third will discuss some of the challenges issued to those still reliant upon the legal paradigm.     

Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence

Contrary to the leading studies of Brenner and McLaren, it is argued that nuisance law was consistently a robust constraint on polluting industrial enterprise during the industrial revolution. The defining nuisances of industrialisation were ‘inter‐neighbourhood’ in character. They affected country estates surrounding industrial seats into which pollutants were displaced by increasingly tall chimneys and long outfalls. The victims of revolutionary nuisance included elite proprietors with unsurpassed capacity to enforce the law. Like Galanterian ‘haves’, who (it is postulated) use the law to reinforce a social advantage, nineteenth century proprietors enforced the common law to protect the ecological fabric of rural life from the threat of polluting corporate enterprise. This is a fundamental challenge to the orthodox view of the common law's complicity with industrial ecological harm in the past, and poses important questions about the prospect of strengthened common law protection of the environment in the modern day.