Law & Society Review 48(3)

Law & Society Review, September 2014: Volume 48, Issue 3

Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight
Kathryne M. Young

Past legal consciousness research has revealed a great deal about what individuals think and do with regard to law, but less attention has been paid to the social processes that underpin these attitudes, beliefs, and actions. This article focuses particularly on a “second-order” layer of legal consciousness: people's perceptions about how others understand the law. Ethnographic observations and in-depth interviews with cockfighters in rural Hawaii reveal how law enforcement practices not only affect cockfighting rituals, but are embedded within them. Police practices and informal rules work in concert to shape fighters' second-order beliefs. These beliefs have implications for participants' understanding of central concepts, including order, disorder, and illegality. Examining legal consciousness from a second-order perspective also underscores that notions of legitimacy are constantly created and recreated. Recognizing legitimacy's inherently relational nature helps us understand how experiences of law are synthesized into beliefs—for example, when an unusual police action directed toward a subgroup of fighters compromised the law's legitimacy for them. Foregrounding the relational nature of legal consciousness offers scholars a means to better understand and operationalize the dynamic nature of human relationships to law.

Restorative Justice, Policing and Insurgency: Learning from Pakistan
John Braithwaite and Ali Gohar

Pakistan state law and Taliban rule of Sharia law are at different ends of a politico-legal spectrum. They share advocacy of one system of law and attraction to eradication of alternatives. Muslahathi Committees in Pakistan are used to explore legal pluralism, hybrid institutions that allow deliberative democracy to seek workable responses to injustice. Formal and traditional systems can show mutual respect and check each other. On the basis of purely qualitative evidence, it is argued that Muslahathi Committees are restorative justice programs that sustainably reduce revenge violence, make a contribution to preventing Pakistan from spiraling into civil war, and assist a police force with low legitimacy to become somewhat more accountable to local civil society. These contributions are limited, but could be more significant with modest investment in human rights and gender awareness training to control abuses and increase accountability. The ruthless, murderous, divisive politics of policing and restorative justice in Pakistan seems a least likely case for deliberative democracy to work. In limited ways it does.

Leprosy, Legal Mobilization, and the Public Sphere in Japan and South Korea
Celeste L. Arrington

This article addresses the question of what gets transmitted in cross-national diffusion and why. It does so by analyzing the spread of rights-based activism from Japanese to South Korean leprosy (Hansen's disease) survivors in the 2000s. Previous scholarship would predict extensive diffusion of mobilizing frames and tactics, especially since Korean lawyers learned an effective legal mobilization template while working with Japanese lawyers to win compensation for Korean leprosy survivors mistreated by Japanese colonial authorities before 1945. Yet the form of subsequent activism by Korean leprosy survivors for redress from the Korean government differed from the original Japanese model. This case suggests the need for scope conditions on theories about isomorphism and the agency of brokers. In particular, it draws attention to how the structure of a country's public sphere—and especially its legal profession, news media, and activist sector—affects the feasibility of imported innovations related to activism and legal mobilization.

How Do Cause Lawyers Decide When and Where to Litigate on behalf of Their Cause?
Scott Barclay and Daniel Chomsky

In this article, we begin to respond to the deceptively simple question: How do cause lawyers decide when and where to litigate on behalf of their cause? We consider the choice of location and timing faced by cause lawyers when more than one jurisdiction evinces a suitable legal environment for pursuing litigation on their cause. To consider this choice, we use evidence from the timing and actions of cause lawyers in the marriage equality cases in the United States from January 1990 through December 2004. And, we show the value in utilizing methods that are relatively novel in cause lawyering research—statistical models—to consider the apparent commonalities, beyond a suitable legal environment, across locations and time periods that might prompt cause lawyers into action.

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court
Robert J. Hume

When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.

State Solicitors General, Appellate Expertise, and State Success Before the U.S. Supreme Court
Ryan J. Owens and Patrick C. Wohlfarth

This article examines how institutional design leads state governments to win their cases before the U.S. Supreme Court. We analyze whether states are more likely to prevail on the merits when they create a formal solicitor general office and have an attorney from that office argue their cases before the Court. We employ an analytical matching approach and find that attorneys from state solicitor general offices are significantly more likely to win their cases compared to other kinds of state attorneys. Accordingly, if states prioritize victory before the Court, they should consider creating state solicitor general offices and granting those solicitors general the authority to control their appellate litigation.