Law & Society Review 46(1)

Law & Society Review, December 2011: Volume 45, Issue 4

Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation
Ellen Berrey, Steve G. Hoffman and Laura Beth Nielsen

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in-depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online.

Children of the American Prison Generation: Student and School Spillover Effects of Incarcerating Mothers
John Hagan and Holly Foster

Formal equality and judicial neutrality can lead to substantive inequality for women and children, with social costs that extend beyond individuals and families and spill over into the larger social settings in which they are located. We consider the uniquely damaging effects of an “equality with a vengeance” (Chesney-Lind & Pollack 1995) that resulted from “tough on crime” policies and the 1980s federal and state sentencing guidelines that led to the incarceration of more women and mothers. We argue that legal equality norms of the kind embedded in the enforcement of sentencing guidelines can mask and punish differences in gendered role expectations. Paradoxically, although fathers are incarcerated in much greater numbers than are mothers, the effect threshold is lower and the scale of effect on educational outcomes tends to be greater for maternal incarceration. We demonstrate both student- and school-level effects of maternal incarceration: the damaging effects not only affect the children of imprisoned mothers but also spill over to children of nonincarcerated mothers in schools with elevated levels of maternal incarceration. We find a 15 percent reduction in college graduation rates in schools where as few as 10 percent of other students' mothers are incarcerated. The effects for imprisoned fathers are also notable, especially at the school level. Schools with higher father incarceration rates (25 percent) have college graduation rates as much as 50 percent lower than those of other schools. The effects of imprisoned mothers are particularly notable at the student level (i.e., with few children of imprisoned mothers graduating from college), while maternal imprisonment effects are found at both student and school levels across the three measured outcomes. We demonstrate these effects in a large, nationally representative longitudinal study of American children from the 1990s prison generation who were tracked into early adulthood.

Indicators as a Technology of Global Governance
Kevin E. Davis, Benedict Kingsbury and Sally Engle Merry

The use of indicators is a prominent feature of contemporary global governance. Indicators are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and determining whether states have complied with their treaty obligations. This article defines the concept of an indicator, analyzes distinctive features of indicators as technologies of governance, and identifies various ways in which the use of indicators has the potential to alter the topology and dynamics of global governance. Particular attention is paid to how indicators can affect processes of standard setting, decisionmaking, and contestation in global governance. The World Bank Doing Business indicators and the United Nations Human Development Index are analyzed as case studies.

“Tort Tales” and TV Judges: Amplifying, Modifying, or Countering the Antitort Narrative?
Joshua C. Wilson and Erin Ackerman

This article joins the debate about the popular pervasiveness of antitort and antilitigation attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered by reality-based television judge shows. Given the persistent debate about tort reform and scholars' recognition of the role played in this debate by simplified narratives about the legal system, we analyze whether reality-based TV judge shows as a genre contribute to the creation and dissemination antitort and antilitigation sentiment. Earlier studies led us to hypothesize that TV judge shows would largely support the antitort and antilitigation narratives. After coding over 55 hours of such shows, however, we conclude that they do not adopt this narrative. Rather, these shows present a view of the civil law system that largely treats plaintiffs' claims as legitimate and showcases the majority of defendants as wrongdoers. In spite of this, we argue that the particular dramatic qualities of TV judge shows limit their potential to serve as a strong counternarrative to antitort and antilitigation stories.

The Fluid Jurisprudence of Israel's Emergency Powers: Legal Patchwork as a Governing Norm
Yoav Mehozay

Israel's long-standing state of emergency has had considerable bearing on the state's governance. Less known, but equally important, is the fact that Israel's legal system features several overlapping and incoherent emergency legal mechanisms that exist side by side. This article demonstrates that Israel's ever-shifting body of emergency law has been used to suit its governing authorities’ political ends. A chief goal has been to create flexibility in the application of law in order to systematically discriminate against Palestinians while maintaining a degree of legitimacy as a government by law. With these various emergency legal mechanisms available, Israel's governing officials can extend the authorities of discrete emergency regulations by mixing and matching laws or by moving freely from one legal mechanism to the next to serve desired ends. This article argues further that what may have started as a pragmatic solution quickly became programmatic and concerted. Thus, contrary to the conception that Israel's convoluted emergency jurisprudence is the accidental outcome of trying times, Israel's complex emergency jurisprudence is in fact a governing tool. This reality compels us to consider new analytical frameworks in which a state of emergency is an enduring condition. To this end, this article draws on the work of colonial law scholars. By analyzing jurisdictional complexity in contexts where emergency is dominant, these studies explain the political motivation for maintaining structured ambiguity.

Making Way: Legal Mobilization, Organizational Response, and Wheelchair Access
Jeb Barnes and Thomas F. Burke

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.