Law's Allure and an Interbranch Perspective on Law and Politics

This essay views Gordon Silverstein's book Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics (2009) from the perspective of the burgeoning interbranch literature on law and courts, which seeks to place judicial decision making within the context of ongoing political and policy-making processes. It argues that Law's Allure reflects the strengths and weaknesses of this literature. On the plus side, it compellingly reinterprets the concept of legal precedent in political terms, showing how the content of judicial decisions serves as an iterative framing mechanism within and across various policy areas. On the downside, it struggles to provide a rigorous framework for analyzing the risks of the juridification of American politics. Despite any weaknesses, its attempt to map different pathways of legalistic court-based policy development in diverse settings represents a useful step for those interested in bringing the study of law and courts back into the core of analyzing American politics and policy making.     

Making Way: Legal Mobilization,Organizational Response,and Wheelchair Access

Questions of how and why organizations respond to legal rights are analyzed in several sociolegal research traditions, including studies of legal mobilization, regulation, and neo‐institutionalist accounts of the diffusion of organizational structures. Using original qualitative and quantitative data, this article examines the responses of ten organizations to wheelchair access rights that are found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. We find that concepts from each of the research traditions are useful in understanding the sources of variance in response among the organizations in our sample. We focus on four key variables: legal mobilization, commitment, professionalization, and routinization. We contend that these variables offer a relatively parsimonious language for studying organizational responses to the law and for aggregating insights from competing approaches in the literature, both of which are essential to advancing our understanding of the conditions under which law changes society.     

Moving beyond the socialization hypothesis: The effects of maternal smoking during pregnancy on the development of self-control

Purpose

Gottfredson and Hirschi, in A General Theory of Crime, argue that the primary source of self-control is parental socialization. Specifically, parents who fail to supervise their children, to recognize their child's deviant behavior, and to punish such behavior are more likely to raise children with lower levels of self-control. Recent empirical research, however, has broadened the explanatory factors to include sources within schools, neighborhoods, and individual factors as significant contributors to the development of self-control. This study proposes that maternal smoking during pregnancy places additional limits on the development of self-control.

Methods

Using a subsample of the National Longitudinal Study of Youth (N = 542), we provide a comprehensive investigation of the variety of sources of self-control to include both individual and environmental covariates.

Results

Results indicate that maternal smoking during pregnancy significantly impacts the development of self-control net of parental, neighborhood, and school socialization. We also found that individual sources of self-control significantly vary across race and neighborhood context.

Conclusions

The sources of self-control are more complex than socialization from parents, schools, and within neighborhoods occurring in childhood and adolescence.     

Global capitalism,Haiti, and the flexibilisation of paramilitarism

This paper looks at the shifting manner in which paramilitarism has been reproduced in Haiti, examining how it has evolved from the Cold War into the era of capitalist globalisation. The central argument of this article is that paramilitarism has not disappeared but has been altered, and that this has occurred in part due to the changing strategies of elites in the global era. Rather than a permanent and widespread force, paramilitary groups are utilised in smaller numbers and only in certain ‘emergency periods’, serving a purpose of containment: targeting political threats and beating down those large populations whose social reproduction is not required by transnational capital. This has been a difficult situation for elites to manage, as they often have only limited control over such ruthless, corrupt and violent elements, which they sometimes require. Following the 1991 and 2004 coup d’états in Haiti, a military–paramilitary–bourgeoisie grouping has repeatedly worked to recover its impunity and revamp its coercive apparatus. Under these conditions, and even more increasingly in the wake of the 2010 earthquake, a variety of elites and technocrats (most importantly, US policymakers) have sought to politically remake the country alongside processes of economic restructuring promoted by transnational capital.     

The Diffusion of Rights: From Law on the Books to Organizational Rights Practices

How does law change society? To gain new leverage on this long‐standing question, this article draws on two lines of research that often ignore each other: political science research on the mobilization of law, and sociological research on the diffusion of organizational practices. Our insights stem from six case studies of diverse organizations' responses to the accommodation provisions in the Americans with Disabilities Act and related state laws. We found that different modes of exposure to the law combined with organizational attributes to produce distinct “rights practices”—styles of standard operating procedures and informal routines that reflect the understanding of legal requirements within an organization. The diversity of the organizational responses challenges simple dichotomies between compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization, and it underscores the importance of combining political science and sociological perspectives on law and social change.     

In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility

A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health crisis was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy‐making process. Indeed, once one considers informational and political constraints, as well as how the branches of government can fruitfully share policy‐making functions, the asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power.     

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

Despite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.