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1
Do the “Haves” Still Come Out Ahead?
Joel B. Grossman, Herbert M. Kritzer,
and Stewart Macaulay
In [“Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,”
Marc] Galanter (1974) attempts to explain the outcome of trial court litigation in es-
sentially structural terms. He discusses “the way in which the basic architecture of
the legal system creates and limits the possibilities of using the system for redistribu-
tive change.” Galanter divides parties into “one shotters” and “repeat players.” A one
shotter is a person, business, or organizational entity that deals with the legal system
infrequently. The one shotter’s claims are too large (relative to their size) or too small
(relative to the cost of remedies) to be managed routinely and rationally, but a one
shotter’s interest in winning a particular case is very high.
A repeat player, on the other hand, has had, and anticipates having, repeated liti-
gation. Repeat players have low stakes in the outcome of any particular case and have
the resources to pursue their long-term interests. They can anticipate legal problems
and can often structure transactions and compile a record to justify their actions.
They develop expertise and have access to specialists who are skilled in dealing with
particular types of cases or issues. They enjoy economies of scale and encounter low
start-up costs for any particular case. For example, an automobile manufacturer may
anticipate challenges to a particular part or system and thus develop legal strategies
and invest in research to defend itself. Legal strategies can be modified and devel-
oped from one case, or group of cases, to the next. Repeat players can also benefit
from informal relations with (and “educate”) institutional incumbents such as judges,
hearing examiners, and court clerks. The credibility and legitimacy that flows from
repeated contacts may help to sustain a repeat player’s claims.
Repeat players may not settle a particular case when a one shotter would do so. If
they give in too easily in one case, it may affect the demands made in the next case. Yet
they can play the odds and maximize gain over a series of cases even while suffering
maximum loss in some. Seldom will one case be critically important. As a result, they
consider questions of precedent over the long run and are able to “play for rules.” Re-
peat players may settle (often with low visibility) cases where they expect unfavorable
Abridged from Law & Society Review 33, no. 4 (1999): 803–10.](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-28-2048.jpg)
![14 Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaulay
verdicts or rule outcomes. They can trade symbolic defeats for tangible gains. One
shotters, by definition, are necessarily more interested in immediate outcomes.
Galanter also focuses on litigation configurations. One shotters may sue one shot-
ters. Such cases often are between parties who have some ongoing relationship and
who are disputing over some indivisible good. Cost barriers will ration access to the
legal system in many of these cases. Repeat players may also sue each other. The sanc-
tions of long-term continuing relations (which they wish to maintain), however, tend
to minimize such cases. Mediation, arbitration, and settlement may be better options.
When repeat players are contesting issues of principle or individual rights, however,
some authoritative resolution may be necessary and the risks or costs of defeat may
have to be endured. Likewise, governmental units may find it difficult to settle high-
visibility cases because of the unfavorable publicity likely to be generated. Of course,
there are also disputes between repeat players who have no relationship to protect.
Perhaps the remaining two litigation patterns in Galanter’s matrix are more in-
teresting. Repeat players may sue one shotters. Sometimes these cases take the form
of stereotyped mass processing, bearing little resemblance to full-dress, adversarial
litigation. Creditors seek default judgments, attachment of wages, property title con-
firmations, and so on. Traffic violations are processed routinely. Only a bare few are
contested. A court in such cases serves more as an administrative office registering
previously determined (or highly predictable) outcomes rather than as either an ad-
judicator or a locus for bargaining in the shadow of the law. Criminal prosecutions
and administrative sanctions also fall into this category. Plea bargains and some set-
tlements have to be approved by a judge, but the outcome is essentially determined
elsewhere. The great bulk of litigation falls into this category. No particular case raises
major public policy or legal concerns. Taken together, such cases reflect the increas-
ingly bureaucratic attributes of a mass society set against an ideology of liberalism.
Finally, one shotters may sue repeat players. The one shotter may seek outside help
to create leverage against an entity or organization with much greater power and re-
sources. For example, a consumer is displeased with repairs to an automobile; an em-
ployee seeks redress from adverse working conditions or disputes a job termination;
a tenant seeks to compel a landlord to make repairs to a dwelling. In such cases,
according to Galanter, the advantages of repeat players are maximized. Although
some one shotters do win such lawsuits (especially when they are supported by a
third party that is itself a repeat player, such as the EEOC [Equal Employment Op-
portunity Commission], tenants’ union, or an environmental group or agency), the
configuration of the parties and their disparate resources suggests that repeat players
will prevail in a large majority of these cases.
Galanter also talks about how the nature of U.S. legal institutions increases the ad-
vantages of repeat players. Claims handling institutions are largely passive and reac-
tive; the plaintiff or moving party must mobilize them and overcome cost barriers to
access. Some of these barriers can be reduced by devices such as fee shifting and con-
tingent fee arrangements, but access burdens still remain. Our adversarial system still
assumes that the parties are endowed equally with economic resources, investigative
opportunities, and legal skills, but that is rarely the case. Most U.S. legal institutions](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-29-2048.jpg)
![THE RULE OF LAW AND THE LITIGATION PROCESS 17
early published opinions regarding a single individual right, nationally recognized, at
both the trial and appellate level, rather than comparing appellate opinions regard-
ing disputes in diverse jurisdictions under many different laws. By doing so, I exam-
ine Galanter’s claims where one would most expect the law to protect the one-shot
player: cases arising under a remedial statute granting individual rights.
I conclude that the perceived failure of remedial statutes to bring about social
change flows in part from how the litigation process systematically obscures the
substantive success of a new law. Although people may experience both success in
litigation and significant social change as a result of a new civil right, this prog-
ress remains largely invisible in the common-law interpretation of that right. Over
time, strategic settlement and the litigation process produce judicial interpretations
of rights that favor repeat players’ interests, limiting the scope and effectiveness of
those rights.
The Litigation Process and the Evolution of Legal Rules
Published judicial opinions in litigated cases capture only a small part of what goes
on with regard to a new law. Not every violation of a statute results in a written ju-
dicial opinion interpreting that law. Courts do not automatically detect violations
of law; they must depend for their caseloads on wronged parties mobilizing the law
and bringing disputes to a legal forum. Unrecognized violations never reach a le-
gal forum. Even individuals who recognize a harm sometimes decline to sue, instead
“lumping it,” or exiting from their relationship with the wrongdoer. Some disputants
mobilize the law beyond the view of courts by negotiating solutions “in the shadow
of the law,” with an eye toward the likely adjudicated outcome should the dispute
ever reach a legal forum (Mnookin and Kornhauser 1979).
What is less obvious is that even violations that reach a legal forum do not neces-
sarily result in a judicial interpretation of the law. It is well known, although often
overlooked, that only a small fraction of disputes that reach court are adjudicated. It
is unlikely that adjudicated disputes are representative of all the disputes that arise
under a remedial statute. [T]wo factors . . . influence the evolution of judicial inter-
pretations of statutory rights:
[(1) Strategic settlement by repeat players:] Although remedial employment statutes
give the rule advantage to the employee, repeat player employers may still settle
cases they expect to lose and litigate those they expect to win, ensuring that
judicial interpretations of the statute occur in cases with the odds in their favor.
If repeat players engage in this strategic behavior, Galanter’s analysis predicts
that judicial opinions will develop a pattern in which repeat players consistently
win. Public interest representation of employees may mitigate this pattern, but
on balance, one would predict that over time published judicial opinions inter-
preting the scope and meaning of a remedial employment statute would come
to favor employers.](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-32-2048.jpg)
![18 Catherine Albiston
[(2) The nature and distribution of rule-making opportunities in the litigation pro-
cess:] Litigation is not a one-time choice between trial and settlement. It is a
temporally organized process with both rule-making and settlement opportu-
nities along the way. For purposes of this article, by “rule-making opportuni-
ties” I mean points in the litigation process that may produce published judicial
opinions containing substantive interpretations of a statute. That is, I assume
that judges create and shape legal rules through published judicial opinions in-
terpreting the scope of a statute and that both judges and litigants rely on those
published opinions in future litigation.
In an employment suit, litigation proceeds in a series of steps, many of which pres-
ent rule-making opportunities. An employment lawsuit in federal court typically be-
gins with a complaint. Motions to dismiss for failure to state a claim upon which relief
may be granted are often the next step in litigation, followed by an answer. After these
initial steps, the parties typically engage in a relatively long period of discovery regard-
ing the underlying facts of the case. Toward the end of discovery, one or both parties
may bring a motion for summary judgment to narrow the issues for trial or dispose of
the case entirely. Should the claim survive summary judgment, the case may proceed
to trial, typically a jury trial in employment disputes. During or after trial, the parties
may bring a variety of trial-related motions. Once the parties receive a final judgment,
the case may, but does not always, proceed to appeal. Figure 2.1 illustrates this process.
Only certain points in the litigation process present opportunities for a substan-
tive interpretation of the statute underlying the employee’s cause of action. The most
common rule-making opportunities in employment disputes are motions to dismiss
for failure to state a claim and motions for summary judgment.
The legal standard for motions to dismiss for failure to state a claim on which
relief may be granted favors plaintiffs. These motions test the legal sufficiency of the
claim; the court evaluates whether the facts alleged, if true, would entitle the plaintiff
Complaint MotiontoDismiss Plaintiff Wins
Summary
Judgment
Either Party Defeats
Summary Judgment Trial
Jury Trial with No
Published Opinion
Defendant Wins Owns Motion
for Summary Judgment
Defendant Wins
Plaintiff Wins Own Motion for
Summary Judgment
Trial Before Judge Only
=PrimaryRule-MakingOpportunities
(published judicial opinions interpreting the law)
Figure 2.1. Rule-Making Opportunities in the Litigation Process](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-33-2048.jpg)
![THE RULE OF LAW AND THE LITIGATION PROCESS 19
to a legal remedy. Courts construe the complaint in the light most favorable to the
plaintiff, accept the factual allegations in the complaint as true, and grant the motion
only if the plaintiff could prove no set of facts that would support a claim for relief.
This plaintiff-friendly standard suggests that employees should win most mo-
tions to dismiss in employment cases. Defendant employers, however, are unlikely to
bring these motions in every case. [R]ather than routinely filing a motion to dismiss,
employers may bring these motions more often in weak cases suffering from legal
defects that cannot be cured. Judges’ decisions about publishing opinions also may
affect how the law develops. Judges may be more inclined to publish their opinions
when they grant motions to dismiss than when they deny them because they be-
lieve that granting a motion to dismiss carries more precedential value than a routine
denial.
Given these factors, one would predict (1) that rulings on motions to dismiss
would be some of the first published opinions regarding a new law, (2) a tendency for
defendants to prevail in those published opinions, and (3) fewer motions to dismiss
than motions for summary judgment in the published body of case law interpreting
a new statute.
Summary judgment allows courts to resolve cases without the expense of trial
where the undisputed facts show that one party is entitled to judgment. Summary
judgment permits piecemeal resolution of the case, such as establishing liability with-
out determining damages, but may also dispose of the case entirely and thus become
an appealable final judgment. Parties often bring summary judgment motions in fed-
eral employment cases to narrow the issues for trial or avoid trial altogether.
Of all the rule-making opportunities in the litigation process, appeals are the most
important because published appellate decisions bind lower courts within the appel-
late court’s jurisdiction. Appeals are not automatic. They must be actively “mobilized,”
and only losing parties may do so. The decision to appeal provides another opportu-
nity for strategic behavior to influence the development of law.
The Family and Medical Leave Act
The Family and Medical Leave Act of 1993 . . . provides up to 12 weeks of unpaid
leave per year for certain employees to care for a seriously ill family member, the em-
ployee’s own serious illness, or the birth and/or care of a new child. The law requires
employers to hold an employee’s job, or one like it, open for the employee during his
or her leave and to continue to pay the employee’s health care premiums during the
leave to the same extent the premiums were paid before the leave. An employee’s use
of leave may not be the basis for any negative employment action, such as demotion,
discipline, or termination. Although the FMLA essentially creates an employment
benefit, it is structured as an individual right, enforceable through a private right of
action or through an action by the secretary of labor.
The data presented are drawn from published judicial opinions interpreting the
FMLA in the first five years after the statute was enacted. . . . 221 trial-level opinions](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-34-2048.jpg)
![20 Catherine Albiston
and 36 appellate opinions were coded on a number of factors, including their pro-
cedural posture, the gender of the plaintiff, whether the opinion was published in
official reporters, the prevailing party, the date of the opinion, amicus curiae partici-
pation in the matter, and public interest or government representation of the plaintiff.
Results and Discussion
[O]f FMLA cases at the district court level that were published in the first five years
after the statute was enacted . . . the most frequent procedural posture was summary
judgment, which constituted about half the published opinions. Motions to dismiss
were the next most common published opinions.
As predicted, in the published opinions, employers prevailed much more often
than employees when the employer was the only moving party on summary judg-
ment; employers won 76% of their own motions for summary judgment. Where both
parties brought motions for summary judgment, however, employers prevailed only
50% of the time. Outcomes on cross motions may be more balanced because those
cases in which employees also brought summary judgment motions were stronger
claims.
Published opinions on employers’ motions to dismiss for failure to state a claim
show a similar pattern. Employers prevailed two to one over employees in these
opinions. Once again, “prevailing” was coded only on the FMLA cause of action. De-
spite the dominance of employer success, given the theory that employers would only
bring motions to dismiss where they were likely to win, it is somewhat surprising
that so many employees defeated motions to dismiss. Closer examination revealed
that, in many cases, the employer’s motion to dismiss encompassed not only the em-
ployee’s FMLA claim but also other causes of action in the lawsuit. Therefore, em-
ployers may have evaluated the chances of success of the motions to dismiss with
reference to other causes of action and simply added the FMLA claim because they
were bringing the motion anyway.
As predicted, appeals were relatively rare and took time to work their way through
the courts. Only 36 of these 257 published opinions were appeals. In general, appel-
late courts tend to uphold trial-level decisions. Employees were the appellants in ev-
ery published appellate opinion except two, and employees seldom succeeded on ap-
peal. Employers prevailed in approximately 86% of published appellate opinions.
These data are consistent with Galanter’s argument that repeat players play for the
rules; that is, repeat player employers settle cases they are likely to lose, and litigate
cases they are likely to win. Indeed, the incentive to engage in this behavior may be
greater at the beginning of the life of a statute where almost every dispute raises a
question of first impression.
In addition, perhaps the most important insight is what is not represented in pub-
lished judicial interpretations of the law: settlement and jury verdicts. That employers
win in most published opinions does not necessarily mean that they prevail in most
cases despite the protections of the remedial statute.](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-35-2048.jpg)
![THE RULE OF LAW AND THE LITIGATION PROCESS 21
Galanter suggests that public interest representation or participation of amicus
curiae representing the interests of one-shot players may ameliorate the advantage
repeat players enjoy in shaping the law. Public interest representation was very rare
in this group of cases, however. In only seven published opinions did either a public
interest organization or the Department of Labor represent the employee.
The relative dearth of public interest participation in published judicial opinions
may reflect public interest activities outside the judicial forum. For example, the De-
partment of Labor accepts and resolves complaints regarding violations of the FMLA.
As of June 1998, the department had received 12,633 complaints from employees and
found violations of the FMLA in 7,499, or nearly 60%. The department successfully
resolved 88% of complaints in which it found a violation of the FMLA, obtaining
$11,772,607 in damages from employers. A few results are striking about the Depart-
ment of Labor complaint data. First, the figures reported by the Department of Labor
suggest that more disputes arise regarding the FMLA than the limited number that
reach the federal courts. Indeed, many may not reach court because the department
resolves them. Second, the department found violations in 60% of cases, compared
with the plaintiff success rate of approximately 22% in the case law, suggesting that
employees may mobilize the law and win at least some remedy more often than the
case law suggests. Third, the average damage award for the 88% of violations that
the department resolved is approximately $1,800, suggesting that administrative com-
plaints address disputes over small damages, although aggregate figures include dis-
putes that vary in value.
[P]ublished judicial interpretations of the statute favor repeat player employers
because published opinions may not reflect much of what a statutory right accom-
plishes. For example, unproblematic compliance with the remedial statute is no-
where represented in these judicial opinions because it does not create a dispute.
In addition, the common ways to succeed in an employment dispute after surviv-
ing dispositive motions—settlement and trial—do not commonly produce published
opinions. Also, some cases settle before reaching any rule-making opportunity or
even before reaching court. Thus, by “winning”—either by obtaining a settlement or
winning a jury trial—employees render their own experiences invisible to the judi-
cial determination of rights, which may eventually erode the power of the remedial
statute.
Parties evaluate the strength of their positions by taking into account published
interpretations of the law. Once a sufficient body of authority supporting an em-
ployer-friendly interpretation of the law develops, even plaintiffs with strong cases
may have difficulty overcoming the weight of authority against them. Interpretations
unfavorable to employees may cause lawyers to decline to take these cases and cause
plaintiffs to settle their cases for less. If these circumstances arise, the scope of rights
created by a remedial statute may be slowly narrowed and curtailed.](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-36-2048.jpg)
![24
3
The Good Case
Decisions to Litigate at the World Trade Organization
Joseph A. Conti
This article examines the decision to initiate litigation in the dispute settlement mech-
anism of the World Trade Organization (WTO). Prior empirical research has focused
on determinants of participation in WTO disputing but without full consideration
of the social processes by which the decision to litigate is made. To the extent that
these processes have been subject to study, scholars have presumed that initiation of
a formal WTO dispute results from a cost-benefit analysis, and they have conceived
of dispute initiation as a way to force “renegotiation” of a trade relationship, elimi-
nate inefficiency caused by protectionist trade policies, and yield outcomes congruent
with the quest to maximize national income. This approach strongly presumes the
stability of preferences over time and across contexts, and that the decision to litigate
originates primarily out of structural relationships, such as the volume of trade and
diversity of trade partners, type of political regime, gross domestic product, or litiga-
tion capacity. While recent efforts have sought to incorporate political dynamics into
the study of WTO litigation, the empirical literature on WTO dispute settlement is
fundamentally dominated by the presumption of market-based rationales.
In contrast, this article adopts a sociolegal approach to understanding the practice
of international law-in-action and critiques the market rationality of prior analyses. I
argue for a socially based understanding of rational action that attends to the specific
social context in which a decision is made . . . [and] the social bases of rationality in
the decision to initiate disputes at the WTO through identification of what partici-
pants in the dispute settlement system described as a “good case.” This can take on
different meanings depending on the facts of the trade grievance, the participants
involved, and the political context. Its multiple meanings stem from uncertainties de-
rived from the structure of the WTO dispute settlement system, most notably the
close relationship between legal and diplomatic modes of engagement.
Taken as a whole, the overlapping and flexible meanings of the good case provide a
set of motives for transforming a trade grievance into a WTO dispute. This approach
situates rational decisionmaking in WTO legal proceedings in larger organizational,
professional, and institutional contexts that reveal the interplay of interpersonal
Abridged from Law & Society Review 42, no. 1 (2008): 145–82.](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-39-2048.jpg)
![THE GOOD CASE 25
relations, organizational settings, political context, formal law, and cultural meanings
that produce the practice of international law. Through invocation of elements of the
good case, all members may behave rationally in the context of initiating a WTO
dispute. But the meanings authorized by these motives lead to very different expec-
tations about what litigation may likely produce and, in turn, which actions make
sense. Where the economically powerful may choose to litigate for full legal victory
and compliance, weaker members may choose to litigate for symbolic or communi-
cative purposes decoupled from strong expectations of compliance. Understood in
this larger context, the rationality of the decision to litigate subsumes and legitimates
significant inequalities between member nations.
The WTO Trading System
The dispute settlement process of the WTO is governed by the Dispute Settlement Un-
derstanding (DSU) and can be divided into three phases: (1) a consultative phase, where
a dispute is formally announced and the parties are required to engage in diplomatic
dialogue, before progressing to (2) the adjudication phase, where WTO review panels
make determinations about member nations’ trade practices, and (3) an implementa-
tion phase, where the dispute settlement process focuses on appropriate implementa-
tion, enforcement, and compensation. This article focuses on the decision to “claim” a
trade grievance as a legal problem and transform it into a formal WTO dispute.
WTO dispute settlement is at best “quasi-juridical” (Pauwelyn 2000: 337–42). That
is, the mobilization of WTO law is almost always accompanied by the possibility of
recourse to diplomatic modes of engagement. This is an intentional feature of the
dispute system and legacy of the GATT [General Agreement on Tariffs and Trade,
which the WTO replaced]. It is meant to promote the settlement of disputes, rather
than exact punishments, and to do it without threatening its members’ sovereignty.
In drafting the Uruguay Round Agreement [that established the WTO], negotiators
utilized the “constructive ambiguity” of treaty language to build consensus around rules
without specifying their precise meaning (Petersmann 2005: 128). As a result, member
nations have increasingly used the dispute settlement mechanism, rather than negotia-
tions, to obtain clarification of their WTO obligations. At the same time, panels and
the Appellate Body formally lack the ability to establish precedent, as this is deemed
to undermine the right of member nations to negotiate their international obligations.
The Good Case as Motivated Social Action
Felstiner et al. (1980–81) have examined motive and rationality in the context of civil
law. The perception of a grievance—the understanding of an event as injurious—
and the assignment of blame invoke sets of motives and provoke certain kinds of
action. The eventual resolution of that grievance requires contest, negotiation, per-
suasion, and perhaps litigation over conflicting sets of motive. In these situations,](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-40-2048.jpg)
![26 Joseph A. Conti
motive is shaped by ideas about the “nature, function and operation” (Trubek 1984:
592) of the law and legal institutions held by the aggrieved party and their reference
groups. Such “agents of transformation” (Felstiner et al. 1980–81) provide information
and assign meaning to the grievance and potential actions, including seeking redress
through formal legal institutions; they help define the terms by which any given ac-
tion can be judged as “rational.” As Felstiner et al. argue, the reification of disputes
by institutions, which “reduc[e] them to records,” obscures the unstable and subjec-
tive manner by which people assign meaning to specific actions and chart further
courses (1980–81: 631). In contrast, a motivational understanding of the decision to
litigate permits its examination as a social phenomenon formulated through mean-
ings, though perhaps unstable and subjective, available in particular social situations.
Where Felstiner et al. (1980–81) and Sarat and Felstiner (1988, 1995) emphasize
legal consciousness in the processes through which motives in disputing emerge,
Galanter (1974) focuses on structural relationships between parties and the dispute
settlement institution. He highlights the impact of experience and unequal resources
on parties’ motives, strategies, and goals in litigation. Repeat players enjoy many ad-
vantages, including greater access to resources, familiarity with the dispute institu-
tion’s rules and practices, lower start-up costs, and informal relationships with agents
of the institution. As a result, repeat players have the strategic option of “playing for
the rules” and investing in the shaping of jurisprudence. One-shotters, in contrast,
lack these advantages, are less able to identify a “good” case, and are more likely to
enter litigation without the strategic ability to affect the ongoing development of law.
The structural position of parties in relation to the operation of legal institutions
shape which sets of motive appear rational, credible, and legitimate.
Similar to the context of civil law, the good case constitutes the complex of mean-
ings that accompany mobilization of WTO law and the transformation of a trade
grievance into a formal trade dispute. The process by which a trade grievance is
identified as “good” reflects contextual constraints, such as the ability to marshal
resources; personal, professional, and organizational goals; and routine knowledge
of formal and informal legal mechanisms generated through experience. Taken to-
gether, the good case is the set of motives that constitute the rationality of the context
in which the decision to litigate is made. The good case depends on context and, as
that context changes, so does the meaning of the good case and the motive for litiga-
tion. Those disputes that are not good cases will generally not be litigated (with some
significant exceptions), WTO law will not be directly mobilized, and the aggrieved
parties will have to look to alternative forums.
The situation of the WTO as an international forum of states, the specific struc-
tures of its dispute settlement system, and the intertwining of law and politics in
its procedures distinguishes the set of motives available to actors in the WTO from
other legal contexts. These features of the WTO system, however, also create signifi-
cant uncertainty about the outcomes of a given dispute. Similar to Galanter’s linking
of motives and strategies in litigation to the structural relationship of parties to the
dispute institution, distinctive features of WTO litigation make different strategies
and goals available to WTO members, depending on their relationship to the dispute](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-41-2048.jpg)
![THE GOOD CASE 27
settlement process. In this way, uncertainties attached to litigation at the WTO create
flexible and overlapping meanings of the good case, which in turn shape which griev-
ances are transformed into a dispute and why.
Interviews and Analysis
The data for this article consist of 30 semi-structured interviews conducted with in-
fluential WTO actors between May 2004 and May 2006 in four locations: Chicago;
Washington, D.C.; Brussels, Belgium; and Geneva, Switzerland. Ten of the interviews
were with senior legal counsel or ambassadors working in trade ministries of three
major Northern trading countries and five nations of the global South. Interviewees
also included a former Appellate Body chair, WTO Secretariat staff in several divi-
sions, private attorneys, and a former ambassador to the WTO working as a private
consultant. Three initial participants were identified through personal networks and
the remaining through purposive, “snowball” sampling and by directly contacting
trade ministries and law firms. One interview was conducted over the phone and
another through a series of e-mail exchanges; the rest were conducted in person, gen-
erally lasting between one hour and one hour and a half.
Uncertainties in WTO Litigation
The meaning of a good case at the WTO is flexible because of significant uncertain-
ties associated with litigating in the dispute settlement process. Interviewees identi-
fied several types of uncertainty that are manifestations of four features of the WTO:
the newness of the system, the organizational and legal structure of the dispute sys-
tem, the WTO as an intergovernmental agreement, and the persistence of inequality
between states.
The emergent and developing character of WTO jurisprudence combined with the
lack of formal authority to establish precedent creates considerable uncertainty re-
lated to determining what arguments must be made to construct a good legal case.
The organization of the panel review stage of the dispute settlement system produces
uncertainty about how a case should be pleaded. While the Appellate Body is com-
posed of jurists who serve a set term on the bench, each panel is assembled on an ad
hoc basis for each dispute. The DSU permits the parties involved in the dispute to
nominate potential panelists, with the final panel composition requiring the consent
of both parties. As a result, the ad hoc system favors newer and less experienced pan-
elists who may or may not have legal training or expertise in the relevant details of
the dispute. Even if the panelists have legal training, they tend to come from diverse
legal traditions and have little or no experience adjudicating legal matters, particu-
larly diplomatic texts that contain inherent ambiguities.
The ability of counsel to identify a good case is limited by [the intergovernmental
treaty basis] of the WTO dispute settlement system that makes ensuring compliance](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-42-2048.jpg)
![THE GOOD CASE 29
Larger trading nations are more likely to have a specialized government unit for
handling international trade affairs. As a former Appellate Body panelist reported,
the ability to identify a good case corresponds to those delegations that are “more
socialized” into the WTO legal system. This socialization includes expansive internal
structures for evaluating the possibilities of WTO jurisprudence:
The difference between let’s say the United States and the EU on the one hand, Ja-
pan also, is that they have very elaborate internal structures dealing only with these
issues. So they are more socialized in that they can make greater prediction. . . .
[A]s you know, the proceedings are confidential . . . and about half the membership has
never participated in a litigation so they don’t know how it works because unless you
are a [third] party . . . intervening in the case because there is a systemic issue which is
of interest to you, you don’t know how it works.
An American official put it more bluntly: “We’re big and we’re rich and we can hire
lots of people to do the dirty work.” As a result, more-affluent members of the WTO
system are more inclined to take advantage of WTO law and more likely to engage
the process fully prepared, with a well-developed sense of what can be achieved.
Uncertainties are pervasive and significant in the WTO dispute settlement sys-
tem. But these are not experienced in the same way by each delegation, which has
different capacities to effectively adapt to them. Member nations may be forced to
abandon litigation or to not initiate litigation at all. A Geneva-based private attorney,
when asked about whether some members may be inhibited from participating in
dispute settlement, responded:
Yes, countries are inhibited because they don’t have the resources, they don’t have the un-
derstanding, they don’t have the personnel, they have higher priorities. But, they are also
inhibited because they know that there are political sensitivities; they’re getting something
in return, that . . . they might get more aid if they keep their position, if they’re quiet.
Meanings of the Good Case
One of several important adaptations to uncertainty within dispute settlement is
flexibility in the meaning of the good case that enables and encourages partici-
pants to adopt more modest, alternative goals that may be something considerably
less than complete legal victory and full compliance. A trade issue alone may not
be sufficient by itself for a case to go forward and instead must align with other
situational features. The “damage” of a trade problem must be of an appropriate
magnitude or match with various goals and priorities of the government. An oth-
erwise good case that is of relatively small economic or political impact may not
be litigated unless it furthers some goal of the government. On the other hand, a
dispute with enormous economic or political stakes may be avoided due to risks
associated with disputing. At the same time, the dispute where a legal victory is](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-44-2048.jpg)
![30 Joseph A. Conti
most likely may not be litigated. Instead, according to respondents, “best cases”
are more likely to result in mutually agreed settlements prior to the completion of
litigation.
[R]espondents identified six elements of the good case. By themselves or together,
these are the meanings that motivate the initiation of a formal WTO dispute.
All-Out Victory
The first type of good case is one that involves a substantive trade issue that can be
argued in reference to WTO jurisprudence to produce a favorable judgment on criti-
cal issues and that will trigger full compliance with WTO rulings.
Relative Gain
Another type of good case is one that is expected to result in relative gains through
partial compliance. It is based on the expectation of a legal victory on critical issues
that will, in turn, pressure the losing government to make substantive changes to its
trade policies. But the complaining member realizes that the prospects of full compli-
ance may be low.
Any member nation, by virtue of its national sovereignty, retains the formal right
to not comply with WTO rulings. In practice, however, noncompliance is less of an
option for poorer states that are more vulnerable not only to WTO mechanisms for
inducing compliance, but also to extralegal pressures, such as withdrawal of foreign
aid. The United States, followed by the EC, are the most frequent noncompliers with
panel and Appellate Body rulings.
Sending a Message
A case may be worth pursuing because it communicates a message. The type of mes-
sage and the intended target may vary. A good case may facilitate the “education” of
the citizenry and political leadership of a trading partner about a trade problem and
create pressure for action through visibility in mass media. This is especially impor-
tant when expectations of compliance are weak. A second form of disputing-as-com-
munication intends to trigger diplomatic action to resolve the grievance. Referencing
scholarship on civil litigation, this has been termed negotiating in “the shadow of the
law” (Mnookin and Kornhauser 1979). The initiation of a formal complaint can thus
contribute to an informal settlement.
Complementary Goals
A good case furthers government goals and priorities in areas beyond the dispute at
hand. National governments may prioritize issues such as intellectual property rights
or obtaining greater market access. Disputes will be chosen that further those goals.
More dramatic, a good case may be intended to affect ongoing WTO negotiations. In](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-45-2048.jpg)
![CONVICTABILITY AND DISCORDANT LOCALES 37
convictability—the likelihood that a jury would return a guilty verdict. Typically,
prosecutors assess cases as unconvictable and they are rejected from the system.
The concern of district attorneys with convictability is shaped by the organiza-
tional policies and procedures of the prosecutor’s office and the courts. The decisions
are made within the organizational context of the prosecutor’s office, the institutional
structure of the court system, and the political context of the community. Prosecu-
tors’ decisions have implications for promotion possibilities, transfers, their own rep-
utations as well as the reputation of their unit, and the branch office.
Concern with convictability creates a “downstream orientation” in prosecutorial
decisionmaking—that is, an anticipation and consideration of how others (i.e., jury
and defense) will interpret and respond to a case. During complaint filing, prosecu-
tors orient particularly toward “the jury,” an ideal type formed from a composite of
their previous trial experience, discussions with other prosecutors, and prosecutors’
general cultural knowledge about the norms and mores around sexuality, heterosex-
ual relations, and violence. This orientation takes two forms. First, prosecutors an-
ticipate defense arguments to assess whether they can construct a credible account
of the incident for the jury. Second, prosecutors invoke anticipated jurors’ interpreta-
tions of case “facts” as the standard of convictability. Thus, the ability to construct a
credible narrative for the jury and the jurors’ ability to understand what happened
from the victim’s viewpoint are pivotal in prosecutors’ assessment of case convictabil-
ity. A prosecutor’s anticipated inability to get a guilty verdict from a jury is a legiti-
mate justification for case rejection.
Constructing Discordant Locale Categorizations
Prosecutors presume that we live in a segregated society and that since the occu-
pants of these segregated spaces have distinct cultures, they use different interpre-
tive frames for making sense of and organizing the world. Living in segregated space
means people have limited first-hand knowledge of people who are different from
themselves. When people have limited contact, they form “place images” of other
communities and their residents to make sense of their lives.
The [following] example is a passage from an interview, with comments to the
detective after the interview. The DDA’s questions and comment reveal two categori-
cal descriptions: the Center Heights community and the victim. The DDA intimates
the power of these different descriptions when considering how the jury, who reside
outside of Center Heights, may interpret the situation.
DDA: So you left LaDonna’s house about 1:15–1:20 a.m. and you got to the corner about
4:30–5:00 a.m. Do you think the jury will believe that? You walked a 30-minute
mile—six miles equals three hours. Right on the money. I’ve got to figure this out
because if we establish something way off the mark, the defense will use that to
say you are lying. Will these people be willing to come in and corroborate you?](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-50-2048.jpg)
![CONVICTABILITY AND DISCORDANT LOCALES 39
complexity of case processing, giving their accounts a measure of professionalism
and authority. They also demonstrate objectivity by taking account of various par-
ticipants’ standpoints (i.e., victims, jurors, and court officials). These multiple posi-
tions are a key element in the construction of discordant locales; by shifting between
the perspectives of jurors, victims, residents, defense attorneys, and prosecutors, the
DDA voices the discordant categorization schemes.
[I]n the next account, the DDA’s categorization of discordant locales is constituted
through her understanding of the jury. Here the prosecutor plays the role of knowl-
edgeable outsider and cultural translator. The DDA is telling me about a preliminary
hearing she just finished at which some of the suspects who had not yet been ar-
rested appeared in the courtroom to watch the hearing. When the victim walked into
the room, she identified her other attackers and police arrested them immediately.
The DDA is telling the story of the case.
I asked her why she didn’t say anything about it [a previous rape]. She said it would get
back to her girlfriend and they would know who did it and they would kill her. I asked
how come she reported this rape. She said that there were three girls on the corner with
her, and they [the attackers] wouldn’t know which one told. It is such a different world.
I go home to Oakdale Beach and watch the sunset, and they are here thinking about
survival. I don’t think someone is going to shoot me or rape me. I have to understand
the way of life here or I’ll never be able to convince a jury. If I don’t, they won’t under-
stand why she was out at 5 a.m., and why she didn’t report the first rape but she did
report the second.
The DDA categorized the locations as discordant locales by contrasting her con-
cerns at night with those of victims who live in Center Heights. On a continuum of
familiarity with life in Center Heights, the DDA positions herself as more knowl-
edgeable than jurors. By acknowledging her limited understanding of life in Center
Heights, she locates jurors farther out on the continuum, increasing the cultural dis-
tance between places, bolstering the categorization of discordant locales. Her knowl-
edge of life from the standpoint of the victim suggests the outsiders are the naive
jurors. Her role as cultural translator recognizes that although jurors may be outsid-
ers, their ability to understand the victim’s standpoint is crucial to case convictability.
Prosecutors construct Center Heights and “Other” areas where jurors live as dis-
cordant locales. Through the interplay of person and place descriptions they char-
acterize these areas as distinct geographically, racially, economically, and culturally.
Categorizing these places and persons as discordant locales provides an organization-
ally sound justification for case processing decisions.
In accounting for cases, prosecutors voice the standpoints of different court play-
ers. Although they temporarily decenter the mainstream standpoint of the jurors
by adopting that of Center Heights residents, this decentering becomes a technique
for demonstrating the prosecutor’s own objectivity. The prosecutor’s shifts in align-
ment allow the DDA to display consideration of a case’s complexity and the power
of organizational logic. It is a mechanism for the prosecutor to express frustration at](https://image.slidesharecdn.com/25879892-250509195839-f827254b/75/The-Law-And-Society-Reader-Ii-Erik-Larson-Editor-Patrick-Schmidt-Editor-52-2048.jpg)
The Law And Society Reader Ii Erik Larson Editor Patrick Schmidt Editor
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- 6. The Law &Society Reader II
- 7. This page intentionallyleft blank
- 8. The Law &Society Reader II E d i t e d b y Erik Larson and Patrick Schmidt a NEW YORK UNIVERSITY PRESS N e w Y o r k a n d L o n d o n
- 9. NEW YORK UNIVERSITYPRESS New York and London www.nyupress.org © 2014 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data The law and society reader II / edited by Erik Larson and Patrick Schmidt. pages cm Includes bibliographical references and index. ISBN 978-0-8147-7081-8 (hardback) — ISBN 978-0-8147-7061-0 (paper) 1. Sociological jurisprudence. 2. Law—Social aspects—United States. I. Larson, Erik, editor of compilation. II. Schmidt, Patrick D. (Patrick Delbert), 1971- editor of compilation. K376.L36955 2014 340’.115—dc23 2013046961 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook
- 10. v Contents Acknowledgments xi Introduction 1 ErikLarson and Patrick Schmidt Part I: Inequalities 7 Does Law Benefit Those with the Most Resources? 1. Do the “Haves” Still Come Out Ahead? 13 Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaulay 2. The Rule of Law and the Litigation Process: The Paradox of Losing by Winning 16 Catherine Albiston 3. The Good Case: Decisions to Litigate at the World Trade Organization 24 Joseph A. Conti How Do Authority and Power Influence the Implementation of Law? 4. Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideology in Prosecutorial Decisionmaking 35 Lisa Frohmann 5. The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime 42 Ryken Grattet and Valerie Jenness Can Rights-Based Litigation Address Inequalities? 6. Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts 55 Emily Zackin
- 11. vi Contents 7. BeyondBacklash: Assessing the Impact of Judicial Decisions on LGBT Rights 62 Thomas M. Keck Part II: Organizations and Law 71 When Is Regulation Effective? 8. Explaining Corporate Environmental Performance: How Does Regulation Matter? 75 Robert A. Kagan, Dorothy Thornton, and Neil Gunningham 9. The “Compliance” Trap: The Moral Message in Responsive Regulatory Enforcement 84 Christine Parker 10. Labor Regulation, Corporate Governance, and Legal Origin: A Case of Institutional Complementarity? 92 Beth Ahlering and Simon Deakin How Do Regulated Organizations Influence Legal Outcomes? 11. Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace 103 Lauren B. Edelman, Howard S. Erlanger, and John Lande 12. The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law 111 Shauhin A. Talesh Part III: Lawyers and Legal Work 119 How Do Hierarchies Influence the Legal Profession? 13. Do Rankings Matter? The Effects of U.S. News & World Report Rankings on the Admissions Process of Law Schools 123 Michael Sauder and Ryon Lancaster 14. Lawyer Satisfaction in the Process of Structuring Legal Careers 131 Ronit Dinovitzer and Bryant G. Garth
- 12. Contents vii What ForcesInfluence Lawyers’ Practices? 15. The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995 141 John P. Heinz, Edward O. Laumann, Robert L. Nelson, and Ethan Michelson 16. Lawyers, Mediation, and the Management of Divorce Practice 147 Craig A. McEwen, Lynn Mather, and Richard J. Maiman Can Lawyers Address Inequalities through Service and Political Work? 17. The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment 159 Carroll Seron, Gregg Van Ryzin, Martin Frankel, and Jean Kovath 18. Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine 166 Lisa Hajjar Part IV: Legal Confrontations—Disputing and Legal Consciousness 173 19. A New Social Constructionism for Sociolegal Studies 176 Elizabeth Mertz Why Do People Turn to Law in Disputes? 20. Litigating within Relationships: Disputes and Disturbance in the Regulatory Process 185 Cary Coglianese 21. Pursuing Rights and Getting Justice on China’s Ethnic Frontier, 1949–1966 193 Neil J. Diamant How Do People Use Ideas and Ideals in Legal Disputes? 22. Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund 203 Gillian K. Hadfield
- 13. viii Contents 23. JusticeExcused: The Deployment of Law in Everyday Political Encounters 211 George I. Lovell How Do Ideas Influence Peoples’ Beliefs about Law? 24. Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers 223 Tom R. Tyler and Robert J. Boeckmann 25. Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment 232 Laura Beth Nielsen How Does Consciousness Influence the Construction of Law? 26. Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies 243 Anna-Maria Marshall 27. Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness 253 Mary E. Gallagher Part V: Law as an Emergent Institution 261 How Does Law Relate to Other Social Institutions? 28. Competing Institutions: Law, Medicine, and Family in Neonatal Intensive Care 265 Carol A. Heimer 29. Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth 276 Katherine Beckett and Bruce Hoffman How Do Legal Orders Change When Countries Change? 30. Alternative Readings: The Status of the Status of Children Act in Antigua and Barbuda 287 Mindie Lazarus-Black 31. Landscapes of the Law: Injury, Remedy, and Social Change in Thailand 293 David M. Engel 32. Truth, Reconciliation, and the Creation of a Human Rights Culture in South Africa 301 James L. Gibson
- 14. Contents ix How HasLaw Become Global? 33. Rights, Religion, and Community: Approaches to Violence against Women in the Context of Globalization 313 Sally Engle Merry 34. Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes 321 Yves Dezalay and Bryant Garth 35. National Politics as International Process: The Case of Anti–Female Genital Cutting Laws 330 Elizabeth Heger Boyle and Sharon E. Preves Part VI: Law as a Productive Institution 339 How Does Law Influence Group Identity? 36. Through a Green Lens: The Construction of Customary Environmental Law and Community in Indonesia’s Maluku Islands 343 Charles Zerner 37. Unsuitable Suitors: Anti-Miscegenation Laws, Naturalization Laws, and the Construction of Asian Identities 351 Deenesh Sohoni Can Groups Remake Identity through Law? 38. Think of the Hippopotamus: Rights Consciousness in the Fat Acceptance Movement 361 Anna Kirkland 39. Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship 370 Erich W. Steinman How Does Law Operate as a System of Ideas? 40. Blue Jeans, Rape, and the “De-Constitutive” Power of Law 381 Kitty Calavita 41. Do Blind People See Race? Social, Legal, and Theoretical Considerations 387 Osagie K. Obasogie
- 15. x Contents Can SocialScience Inform Progressive Change in Law? 42. From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State 399 Bryant Garth and Joyce Sterling 43. What Counts as Knowledge? A Reflection on Race, Social Science, and the Law 403 Rachel F. Moran Bibliography 411 About the Authors 417 About the Editors 423 Index 425
- 16. xi Acknowledgments From the beginning,we knew that the task of bringing the next generation of the Law & Society Reader into being would require the input and guidance of many. The Publications Committee and past presidents of the Law and Society Association, par- ticularly Laura Gómez and Michael McCann, offered wise suggestions and support, while also backing our broad vision for this volume. A June 2012 workshop at the Centre for Socio-Legal Studies, Oxford, provided a helpful opportunity to gain per- spective on the state of the field. We would especially like to thank Lauren Edelman, Howie Erlanger, and the many scholars who offered vital feedback at the Midwest Law and Society Retreat in September 2012. We also thank Scott Barclay, Liz Boyle, Simon Halliday, Bert Kritzer, Marina Kurchiyan, Bettina Lange, Doreen McBarnet, Herschel Nachlis, Nanda Pirie, Joachim Savelsberg, and Mark Suchman. Our col- leagues—and particularly our students—at Macalester College gave us many occa- sions to think about (and reconsider) ideas for editing and organizing the selections and for writing the introductory material. As we delved further into the project, they often became an important first audience for edited versions of articles. In addition, Mara Aussendorf, Brad Belbas, Carley Davenport, Sean Hoops, Julianne Ragland, and Florence Schmidt gave crucial technological and editorial support. Diego Melo took on the task of reading nearly every edited selection as a summer project, offer- ing valuable feedback. Our editors at NYU Press assisted greatly in the process. Deb- bie Gershenowitz shepherded us through the preliminary stages; Clara Platter helped bring the project to completion. Along with the other staff at NYU Press, including Constance Grady and Dorothea Halliday, their interest in the project provided im- portant support. Also, we greatly appreciated the comments and suggestions of the anonymous reviewers, which were in equal measures encouraging and thoughtful. Finally, we owe a debt of gratitude to the editors and authors of the Law & Society Review: the high-quality scholarship and writing in the journal made the process of selecting the articles to excerpt in this volume difficult but extremely rewarding.
- 17. This page intentionallyleft blank
- 18. 1 Introduction Many students findthemselves drawn to law as a topic or field of study. They often see in law an ability to right injustices, perceiving in law the advantages of independence, logic, and structure, which combine to promise the “correct” outcomes. From this perspec- tive, law appears as a sanctuary from the dirtiness of politics, the ambiguity of culture, the self-interest of economics, and the messiness of social relations. The kind of legal education provided in many countries has done little to discourage students from their belief that law rises above these potential contaminants and remains pure. We may be a long way removed from the view that the laws of a nation are the expression of the will of a divine creator, but for many the appeal to law remains rooted in the belief of the distinctiveness of law as a pursuit. If anything, from this perspective, the study of po- litical, cultural, economic, and social processes is most useful for how it can illuminate the problems that law should address. Indeed, a century ago, many reformers—the legal realists—turned to social science as one way of giving law exactly that sense of direction. Over the 20th century, however, the social sciences evolved and legal scholars changed their approach. Careful empirical research and new veins of theoretical insight complicated our understanding of law in the hands of people. Law, all but the most res- olute will concede, is not as independent as once envisioned. As law actually operates, it remains connected to the messiness of the daily life of politics, culture, economic activity, and social relations. The belief that law is somehow majestically separate and uniquely powerful still influences the rhetoric of law and, through that rhetoric, aspects of how the law works in action. There is drama in the portrayal of law in fictional en- tertainment and in media reports of factual cases. But when we tear off the veneer of appearances, we open up a world that needs and welcomes any disciplinary or interdis- ciplinary approach that can help us understand how law works in society. This research tradition of social science concerned with law has long been a rec- ognized field of scholarly inquiry, although it has been formally organized for only about half of a century. Founded in 1964, the Law and Society Association serves as a scholarly community for people from diverse disciplinary backgrounds who seek to bring their intellectual perspectives to the study of law. As an interdisciplinary com- munity, the Law and Society Association draws together legal scholars, social scien- tists of all stripes (including sociologists, political scientists, anthropologists, psychol- ogists, linguists, and economists), and humanists (notably historians, philosophers, and scholars of literature).
- 19. 2 INTRODUCTION A simplequestion indicates the scope of law and society research: when and how does law work? The question has long been posed as the call to understand the law “in action,” recognizing that the various settings in which one encounters law both influence and are influenced by law. As a tradition, law and society research has dem- onstrated that how law is organized and what people think about it affects the opera- tion and consequences of law. In short, how law and legal institutions are structured and the shared beliefs about what law does and should do influence many aspects of society. Among other influences, the organizational and cultural elements of law af- fect: how law operates and benefits some parties, who uses law, the ways that law can change society, when and how people call on law to address concerns, and the forma- tion of social groups. As an endeavor, the questions and perspectives of law and soci- ety call on scholars to draw on the methods and theories of social science, because a fundamental goal of social science is to understand the variations that appear in and between societies. Unfortunately, it is too easy to displace social science with our intuitions, or “com- mon sense.” The common sense perspective takes law for granted—as if law is always available or is the obvious solution to problems. Another way to put this perspec- tive is the idea that if we did not have law, we would simply have to invent it. Some basic observations force us to challenge that intuition. People address many, perhaps most, of their problems and disputes without resorting to law. Furthermore, when law does rule, it does so by virtue of being an accomplishment: people had to make existing law apply to a new situation. Many legal changes result not from changes in the formal law, but shifts in how people interpret and apply law. Though constitutions are just one type of law, the Constitution of the United States furnishes one of the most dramatic examples: the meaning of the American Constitution—what judges say it means and what most people believe it means—has changed enormously over time, even though most of its words have stood unchanged for two centuries (Tush- net 2009; Carter and Burke 2010). Law forever varies, and the ongoing task for law and society is to keep up with the new manifestations and qualities of law. Good scholarship, like society then, never stands still but forever builds on the insights that have preceded it. Sometimes it shifts slowly, sometimes radically. At the beginning of the law and society movement, scholars offered some fundamental, en- during insights. The Law and Society Association saw fit to capture the insights of its first decades with a volume, The Law & Society Reader, published in 1995 and edited by Richard Abel. Over the ensuing twenty years, the law and society field has con- tinued to produce new insights, sometimes tweaking old understandings, sometimes blossoming in new directions. The field has grown, splintered, and in many ways “come of age” (Friedman 2005). In time, the Law and Society Association recognized the need to capture a new portrait of its vibrant academic garden. This volume—the second Law & Society Reader—answers the call for a single source that brings to- gether a selection of articles abridged from the Association’s publication, the flagship Law & Society Review. As stated in its publications policy, the Law & Society Review
- 20. INTRODUCTION 3 publishes scholarlywork that is “concerned with the cultural, economic, political, psychological, or social aspects of law and legal systems.” What comes together in a journal with such a broad mission? Helpfully, a some- what mysterious ampersand graces the journal title: Law & Society. Perhaps its origin was the inspiration of a graphics designer who thought it would look catchier on the journal’s cover. Or, perhaps it was needed to save space on the paper-bound spine of the journal. But we invite someone who approaches the field for the first time to see the ampersand as deliberate and meaningful, making us think more deeply about the relations between law and society than we would if the more familiar, mundane word “and” were between the capitalized words. At the point of intersection of the two words, we are doing more than simply studying law and society simultaneously, as if there are two ongoing stories that intersect but float separately in the waves of his- tory. The ampersand stands like a Greek letter in a mathematical equation, a variable inviting replacement. One substitution is that we’re studying law in society, to learn the ways that law affects society—its implementation, enforcement, impact, and ef- fects on people’s lives. It is no coincidence that the law and society movement initially took shape during the 1960s, when there was great enthusiasm about the changes that the Supreme Court was bringing to American law. Facing major challenges, es- pecially social and political inequality, law was seen as a vehicle for social change. Law in society was an instrument, a tool to turn to, just as it had been for law and society’s intellectual parents, the legal realists of the early 20th century. The “&” also invites an inversion of the relationship between law and society: so- ciety in law. Law is an unquestionably significant concept in the understanding of human society, like “power,” “gender,” “economy,” or “language.” Whatever the place and time, even if not all peoples and cultures possess something that looks and feels like law as we understand it in our own context, those communities understand the fundamental impulse of organizing relationships among people in conflict, of seeking ways to put patterns on human interactions, and of serving values—whether peace, order, justice, legitimacy, or something else—through those structures. In short and in its most general, law. Law contains all of the struggles of society and gives a focus to those conflicts. The power that some people wield over others, the inequalities that people experience, and their identities are reflected in law and take root through law. Once we see the connection between “law” and “society” as open and contested, we must challenge our understandings of the terms themselves. Law is sometimes too quickly associated with the nation-state or other governmental units. In contrast, law and society scholarship sees many forms of “law” in operation in one society. “Society,” too, invites critique. We can find in this Reader evidence of how many ways this term can be understood and explored. In practice, we render “society” as the study of individuals, organizations, institutions, or conceptual structures—sometimes simultaneously. The ampersand, then, symbolizes the multiple ways that we can study the intersec- tion of law and society. In offering this second Reader, we need that symbol more
- 21. 4 INTRODUCTION than ever,because over the past two decades law and society scholars have pushed our understanding of law in diverse, provocative directions. Capturing Diversity and Changing Contexts The ampersand is also an invitation. Fundamentally, law and society research begins with the premise that law has deep connections to society that influence the operation of law and the potential for law to affect social conditions. Both conceptually (at least ini- tially) and in practice, this intellectual pursuit—how does law connect with society?— invites a very significant role for sociology. But the Law and Society Association and Law & Society Review have always been interdisciplinary spaces. Indeed, one can point to the fact that “society” includes culture (what we might think of as anthropologists’ forte), legacies of the past (history), government (political science), individual motiva- tion (psychology), and production, distribution, and consumption (economics). Given the myriad ways that law often seeks to bring together two or more of these realms—us- ing the power of government to regulate business, attempting to place culturally reso- nant incentives to change motivation—the scholarly enterprise of law and society must be multidisciplinary or interdisciplinary. The Law and Society Association has become a big tent, offering a space for disciplinary and legal scholars who wish to exchange ideas. A measure of caution remains essential. The Law & Society Review, as a common meeting ground, doesn’t exhaust the field. Scholars who identify with the aims and spirit of the law and society tradition publish in many areas, and may never even have a piece of work published by the journal. This volume cannot claim to repre- sent the “canon” of work in the field (see instead Seron 2006). Nor were the entries for this volume chosen by reference to measures of scholarly “impact,” the frequency with which they have been cited by other scholars, or the careful quantitative study of patterns in the journal (Silbey 2000; Abel 2010). A comprehensive accounting of de- velopments in law and society research and its influence would have to take in many other avenues by which this work finds its audiences, particularly books and other disciplinary and interdisciplinary journals. Notwithstanding these facts, the Law & Society Review has continued to publish a range of research that engages and rep- resents the enduring questions and emerging debates in this scholarly community. As such, it has remained an important outlet for bringing together the array of new insights about law. More than that, the Review may be the closest equivalent to a meeting place, a site of conversation. The selection of articles in this volume accord- ingly provides an entry point into significant developments that motivate scholars and students of law and society. Some readers may wish to use the selections in this volume to begin deeper forays into particular disciplinary or interdisciplinary tradi- tions; others may be content to take from it a broader perspective on law. Changes in the wider academic and scholarly environments have shaped how law and society research has developed. At the time of the Law and Society Association’s founding, numerous supports existed for the use of social science to contribute to progressive social change. The priorities of political leaders, provision of research
- 22. INTRODUCTION 5 funding, andbroader cultural ideas aligned to the new field’s benefit. Additionally, the intellectual predecessors of early law and society scholars provided important ori- enting ideas. Together, the political, social, and academic environment shaped the types of questions that the first generation of law and society scholars asked. As law and society research developed its own body of knowledge, its surround- ing environments experienced significant change. Social life and legal practices have witnessed an increase in self-consciously global activity, as companies headquartered all around the world have expanded international activities and as governments have established more penetrating international legal institutions. Politically, the post–Cold War world has seen a wave of democratic change and consolidation, bringing with it a renewed focus on spreading the rule of law. In academic circles, many of the disciplines to which law and society scholars are connected have changed. For example, many within the social sciences have undertaken a “cultural turn,” renewing the emphasis on how shared understandings and ideas shape behavior. At the same time, an increased prevalence of economic reasoning to understand law has provided an alternative social science-based approach to understanding law. This “law and economics” approach has provided law and society scholars an at-times friendly interlocutor and a contrasting alternative, but one that has proven difficult to integrate into a synthetic understand- ing of social relations. Finally, a wider cultural pessimism about the possibilities for law-based progressive social change has also encouraged new thinking, reflecting the realization that attempts to change have often produced unintended consequences or have confronted powerful forces that may not have been well understood. The generation of scholarship encompassed by the second Law & Society Reader thus shares many of the same theoretical touchstones as the first generation of law and society research, but the authors of the articles in this volume have had to engage new challenges and uncertainties. An unchanging legacy of the earliest law and soci- ety scholarship is that this research must be engaged with, responsive to, and reflec- tive of developments in world. In this global, interdisciplinary conversation, it cannot be tone-deaf to change. Attempting to accommodate both enduring and emerging themes for scholarly fo- cus, the structure of this book provides six entry points into key lines of work for law and society scholars and students. Each section of the book includes a short intro- duction that sets the stage for a series of orienting questions. For each question, there are two or three contributions that provide either explicit arguments or more implicit insight about the question. At times, the articles provide competing answers to the questions, while in other instances they share premises or provide similar conclu- sions. No matter their relation to one another, the articles illuminate different ways to approach or answer the questions, including diverse theoretical insights, a variety of research traditions, and distinct settings of the research. Finally, we end this introduction with a few notes about the articles. In all cases, we have significantly condensed the articles that we have selected. We have done so to increase the range of material that we could include in this volume. Of course, there is the tradeoff that in abridging articles, some of the details of the arguments, parts of the theoretical framing, and elements of the research methods must be cut.
- 23. 6 INTRODUCTION To enhancethe flow of the work, we have also removed many of the internal refer- ences in the selections. We have, instead, retained such references only when there is a direct quote to scholarly work or an essential reference to foundational material. (Direct quotes from archival materials have not been retained as references.) Read- ers interested in further details from the articles or cited material should consult the original articles in the Law & Society Review. Finally, to improve readability, we have sought to minimize the use of ellipses to show where we have cut material. We have retained ellipses only when cutting from within a sentence. Each of these decisions reflects the principle that guided us in putting the volume together: providing read- ers an interesting, abbreviated point of entry to the enduring and emerging ques- tions that motivate law and society research and the insights that come from this scholarly activity. We hope that the authors whose work we excerpted find that our editing decisions have done justice to their contributions to the field. In exchange, we hope readers find the excerpted articles a compelling entry to the continuing, rich exchange about the intersections of law and society.
- 24. 7 Part I Inequalities Most readersof this volume either have or will at some point experience renting an apartment or house. When renting, you almost certainly sign a lease agreement. Some renters may have a dispute with the property owner about the rent due or condition of the housing. Housing law influences how people experience such situations: What does the law require and encourage each party to do, now and later? Does the law give one party an advantage? Is it worth talking to a lawyer, much less taking the dispute to court? As noted in the introduction to this volume, law and society scholarship has its roots in a progressive academic tradition and an era in which political leaders sought to harness law to remedy social problems, such as reducing conflict between renters and owners or improving housing quality. Accordingly, law and society scholarship has long sought to understand how law is intertwined with social, political, and economic inequality. If we understand inequality as structured or patterned differences between groups or individuals, we could ask questions about who benefits from law and how such differences come to be. A narrow explanation could attribute any differences in legal outcomes to differences in material resources. From this perspective, legal inequali- ties merely reflect other inequalities: those with more financial resources (such as property owners) can purchase superior legal services and may benefit from greater access to justice than those with fewer resources (such as tenants). Sociolegal scholars, however, have demonstrated that legal inequalities do not come down merely to differences in resources. A fundamental insight is that law op- erates as a system: it has organized procedures and enduring connections to other elements of society. These organizational and structural features of law produce legal inequalities by influencing not only the inputs into the legal system, but also how the legal system processes cases to reach decisions. At the same time, this research tradi- tion emphasizes that the legal system is a social system: it is not merely an automatic case-processing machine, but requires the active participation of people and orga- nizations at all stages of decision making. For example, we take interest in how the owner-tenant relation is itself a legal relation and whether and how tenants, owners, courts, regulators, and others become involved in housing disputes. Classical perspectives in the sociology of law show how the structure and orga- nization of law associate with broader patterns of power and authority. (For more detailed, yet accessible, overviews, see Sutton 2001 and Deflem 2008). Max Weber recognized that legal systems develop as part of a larger pattern of changes in the social relations between rulers, officials, and those subject to rule. Weber pointed to
- 25. 8 Part I theincreasing role of rational bureaucracy—an official administration governed by written rules that establish authority and that direct operations—in shaping social and political life, particularly as its rules relate to law. Law that is itself more gov- erned by written rules could be more predictable but also prove frustrating to those seeking to achieve goals not recognized by the formal legal system. An ascendant rational legal system grows more independent of other sources of power to influence decision making about important social and political issues. Accordingly, Weber’s legacy emphasizes the importance of understanding how the internal operations of law relate to power and how tensions between the formal rules of law and particular substantive ends that people want to achieve can affect social and political outcomes. Returning to the example of rental property, legal bureaucracy has myriad effects on housing: inspection and licensing procedures could define certain requirements for a space to be a bedroom, jurisdictions may establish specialized housing courts, and statutes may include provisions that automatically are part of any residential rental agreement even if not in an actual lease (such as rules concerning the return of a security deposit). A trajectory of academic traditions (sociological jurisprudence, legal realism, and normative theory), however, asks scholars to examine how law itself acts in practice. Rather than provide a detailed lineage of these ideas, we focus on the similar founda- tional premises they left sociolegal scholars. The consequences of legal action (laws, court decisions) merit consideration, particularly because law can serve as a means of seeking social change. These consequences are not simply a function of legal doc- trine, but also reflect how the legal system is connected to society. Finally, if law can respond to societal needs and demands, questions about who has access to law and how their voices enter into legal decision making deserve attention. For instance, re- form efforts may seek to regulate rental housing as part of a community. Such ordi- nances may have different consequences if they take the form of establishing mini- mum standards of habitability or if they restrict the number of unrelated adults who may live in a single rental unit. During the early years of law and society research, social scientists increased at- tention to the critical social science legacies derived from the writings of Karl Marx. Extending beyond social class, a new generation of scholars examined how the legal system intertwined with gender and racial inequalities. Although this critical tradi- tion has consistently shown the importance of material resources, it also pays atten- tion to the role ideas play in connecting law with inequality. Dominant ideas could influence notions of justice, assumptions of what is natural, and which issues were considered important to address. Related to rental housing, law may give greater pri- ority to the property interests of mortgage lenders during a foreclosure rather than a tenant’s housing interest. Additionally, the rise of background screening may limit the availability of rental housing for people with criminal records, disproportionately affecting minority group members (Thacher 2008). These traditions highlight how the legal system is connected to other parts of so- ciety while also retaining some independence from society, showing how the legal system might both reflect and produce inequalities. The articles in this section show
- 26. Inequalities 9 how sociolegalscholars have built on these intellectual legacies in the study of in- equality. Because the selections provide exposition of some of the classical insights and debates in law and society research, we merely preview the themes here. One theme is how law’s operation could affect inequalities. Galanter’s (1974) article asked how the legal system could systematically benefit some parties based on their differ- ent approaches to litigation and inspired subsequent scholars to examine how the structure and organization of law might benefit particular parties. A second line of research takes us inside legal decision making to examine how discretion might both reflect and reproduce inequalities. Finally, a persistent question facing law and so- ciety scholars is whether the power of law can be harnessed for progressive social change. Revisionist scholars, such as Rosenberg (2008), warned that legal strategies may have characteristics that fundamentally limit social change, although this per- spective has generated significant debate. Together, these questions and the articles addressing them ask us to consider both the power of law as a force in society and the influence of society in the operation of law.
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- 28. 13 1 Do the “Haves”Still Come Out Ahead? Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaulay In [“Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Marc] Galanter (1974) attempts to explain the outcome of trial court litigation in es- sentially structural terms. He discusses “the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistribu- tive change.” Galanter divides parties into “one shotters” and “repeat players.” A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter’s claims are too large (relative to their size) or too small (relative to the cost of remedies) to be managed routinely and rationally, but a one shotter’s interest in winning a particular case is very high. A repeat player, on the other hand, has had, and anticipates having, repeated liti- gation. Repeat players have low stakes in the outcome of any particular case and have the resources to pursue their long-term interests. They can anticipate legal problems and can often structure transactions and compile a record to justify their actions. They develop expertise and have access to specialists who are skilled in dealing with particular types of cases or issues. They enjoy economies of scale and encounter low start-up costs for any particular case. For example, an automobile manufacturer may anticipate challenges to a particular part or system and thus develop legal strategies and invest in research to defend itself. Legal strategies can be modified and devel- oped from one case, or group of cases, to the next. Repeat players can also benefit from informal relations with (and “educate”) institutional incumbents such as judges, hearing examiners, and court clerks. The credibility and legitimacy that flows from repeated contacts may help to sustain a repeat player’s claims. Repeat players may not settle a particular case when a one shotter would do so. If they give in too easily in one case, it may affect the demands made in the next case. Yet they can play the odds and maximize gain over a series of cases even while suffering maximum loss in some. Seldom will one case be critically important. As a result, they consider questions of precedent over the long run and are able to “play for rules.” Re- peat players may settle (often with low visibility) cases where they expect unfavorable Abridged from Law & Society Review 33, no. 4 (1999): 803–10.
- 29. 14 Joel B.Grossman, Herbert M. Kritzer, and Stewart Macaulay verdicts or rule outcomes. They can trade symbolic defeats for tangible gains. One shotters, by definition, are necessarily more interested in immediate outcomes. Galanter also focuses on litigation configurations. One shotters may sue one shot- ters. Such cases often are between parties who have some ongoing relationship and who are disputing over some indivisible good. Cost barriers will ration access to the legal system in many of these cases. Repeat players may also sue each other. The sanc- tions of long-term continuing relations (which they wish to maintain), however, tend to minimize such cases. Mediation, arbitration, and settlement may be better options. When repeat players are contesting issues of principle or individual rights, however, some authoritative resolution may be necessary and the risks or costs of defeat may have to be endured. Likewise, governmental units may find it difficult to settle high- visibility cases because of the unfavorable publicity likely to be generated. Of course, there are also disputes between repeat players who have no relationship to protect. Perhaps the remaining two litigation patterns in Galanter’s matrix are more in- teresting. Repeat players may sue one shotters. Sometimes these cases take the form of stereotyped mass processing, bearing little resemblance to full-dress, adversarial litigation. Creditors seek default judgments, attachment of wages, property title con- firmations, and so on. Traffic violations are processed routinely. Only a bare few are contested. A court in such cases serves more as an administrative office registering previously determined (or highly predictable) outcomes rather than as either an ad- judicator or a locus for bargaining in the shadow of the law. Criminal prosecutions and administrative sanctions also fall into this category. Plea bargains and some set- tlements have to be approved by a judge, but the outcome is essentially determined elsewhere. The great bulk of litigation falls into this category. No particular case raises major public policy or legal concerns. Taken together, such cases reflect the increas- ingly bureaucratic attributes of a mass society set against an ideology of liberalism. Finally, one shotters may sue repeat players. The one shotter may seek outside help to create leverage against an entity or organization with much greater power and re- sources. For example, a consumer is displeased with repairs to an automobile; an em- ployee seeks redress from adverse working conditions or disputes a job termination; a tenant seeks to compel a landlord to make repairs to a dwelling. In such cases, according to Galanter, the advantages of repeat players are maximized. Although some one shotters do win such lawsuits (especially when they are supported by a third party that is itself a repeat player, such as the EEOC [Equal Employment Op- portunity Commission], tenants’ union, or an environmental group or agency), the configuration of the parties and their disparate resources suggests that repeat players will prevail in a large majority of these cases. Galanter also talks about how the nature of U.S. legal institutions increases the ad- vantages of repeat players. Claims handling institutions are largely passive and reac- tive; the plaintiff or moving party must mobilize them and overcome cost barriers to access. Some of these barriers can be reduced by devices such as fee shifting and con- tingent fee arrangements, but access burdens still remain. Our adversarial system still assumes that the parties are endowed equally with economic resources, investigative opportunities, and legal skills, but that is rarely the case. Most U.S. legal institutions
- 30. DO THE “HAVES”STILL COME OUT AHEAD? 15 are also characterized by overload that inevitably affects the balance of advantages and favors those with resources. Overload often leads to delay, which is time con- suming and discounts the value—or likelihood—of recovery. A litigant must have the resources to keep the case alive. Overload also induces institutional actors to place a high value on clearing dockets, which leads to discouraging full-dress adjudication in favor of bargaining and negotiation, settlements, routine processing, and diversion that are more likely to favor repeat players. In addition, it encourages judges, admin- istrators, and legislators to adopt restrictive rules to discourage litigation. The “Haves” article does not assert a class or power elite analysis (although it is often wrongly claimed that it does). Galanter does not say that members of the dom- inant class, or organizations with great wealth, always win in litigation. Rather, he focuses on the structural advantages of repeat players, and he concedes that one shot- ters without power may be able to gain many of the advantages of a repeat player if they can engage the support of organizations or lawyers who regularly handle similar cases. The contingent fee, punitive damages, and benefits of specialization and partic- ipating in networks of those who regularly handle cases of a particular type may all help one shotters acquire some of the advantages possessed by repeat players. Indeed, much that is called tort reform involves challenging the structural devices that allow individuals to hire lawyers who can supply the advantages of repeat playership. From a law and society perspective, such observations raise questions about the distribution of legal and political power in a democratic society, the symbolic uses of law, and the impact of the structure of the litigation system on outcomes and the relationships of the legal with other social systems. Galanter’s essay, as all work, reflects its times. “Haves” was written in an era of liberal reform. Courts and legislatures were expanding individual rights. Legisla- tures funded legal services programs. Civil rights and consumer protection statutes provided that some of those who won cases could recover attorneys’ fees. Law was thought to be a prime catalyst for social change. Thus, Galanter ends on an optimistic note by considering how legal reform could expand the advantages of repeat playing to individuals so that they can effectively vindicate their rights. Times change. The goals became the decrease of governmental power and entitle- ments, increased personal responsibility, and a reduction in the regulation of wealth and property in favor of greater reliance on the market. Individual rights liberalism has been strongly challenged by civic republicanism and similar communitarian per- spectives. There may have been an overemphasis on a “rights strategy” and the ef- ficacy of rights in securing social change. Yet whatever its limits, a structure of rights is often a necessary component of change. In the United States, these rights, and ju- dicial protection for them, are being steadily eroded by a spate of Supreme Court decisions. On the other hand, the worldwide growth of democracy and the spread of consti- tutionalism and multinational judicial structures outside the United States seem to be leading to a greater emphasis on rights and their protection by courts.
- 31. 16 2 The Rule ofLaw and the Litigation Process The Paradox of Losing by Winning Catherine Albiston Litigation is a process rather than a choice between two alternatives. Courts inter- vene in this process not only by encouraging settlement but also through intermedi- ate decisions that may not entirely resolve a case. Indeed, although most cases set- tle, many do so after some sort of court intervention. These points of intervention, like strategic settlement, also present opportunities to shape the developing law. The ways in which the litigation process and party-driven biases together might affect the evolving law have not been explored, however. It should also be recognized that not all “law” is created in the same manner. Al- though Galanter’s (1974) argument may make sense for judicially created common- law rules, his proposition deserves a closer look in the context of social reform legis- lation designed to address a social problem or protect the interests of the disadvan- taged. Arguably, these remedial statutes strengthen the position of one-shot players (OS) relative to repeat players by transferring the rule advantage to the one-shot player. Thus, through one transaction, legislation may overcome the incremental le- gal advantages accumulated through strategic settlement behavior. Accordingly, at least in the early actions brought under a social reform statute, one might expect one-shot players to hold their own against repeat players. On the other hand, legislation granting a new substantive right represents both the end of a long political struggle and the beginning of the battle for meaning in the courts. The ultimate scope and power of these statutes depend not only on their language, but also on opinions generated by the common-law process of the judicial determination of rights in individual disputes. This interpretation process presents another opportunity for repeat players to “play for the rules” and influence the ultimate meaning of a statute. In this article, I explore the litigation process in the context of employment litiga- tion regarding the rights conferred by a federal employment statute, the Family and Medical Leave Act of 1993 (FMLA). I examine the pattern of adjudicated outcomes in published federal court opinions in the five years following the statute’s enactment. I look at the entire process of litigation, rather than focusing on outcomes in only one rule-making opportunity, such as appellate opinions. In addition, I examine the Abridged from Law & Society Review 33, no. 4 (1999): 869–910.
- 32. THE RULE OFLAW AND THE LITIGATION PROCESS 17 early published opinions regarding a single individual right, nationally recognized, at both the trial and appellate level, rather than comparing appellate opinions regard- ing disputes in diverse jurisdictions under many different laws. By doing so, I exam- ine Galanter’s claims where one would most expect the law to protect the one-shot player: cases arising under a remedial statute granting individual rights. I conclude that the perceived failure of remedial statutes to bring about social change flows in part from how the litigation process systematically obscures the substantive success of a new law. Although people may experience both success in litigation and significant social change as a result of a new civil right, this prog- ress remains largely invisible in the common-law interpretation of that right. Over time, strategic settlement and the litigation process produce judicial interpretations of rights that favor repeat players’ interests, limiting the scope and effectiveness of those rights. The Litigation Process and the Evolution of Legal Rules Published judicial opinions in litigated cases capture only a small part of what goes on with regard to a new law. Not every violation of a statute results in a written ju- dicial opinion interpreting that law. Courts do not automatically detect violations of law; they must depend for their caseloads on wronged parties mobilizing the law and bringing disputes to a legal forum. Unrecognized violations never reach a le- gal forum. Even individuals who recognize a harm sometimes decline to sue, instead “lumping it,” or exiting from their relationship with the wrongdoer. Some disputants mobilize the law beyond the view of courts by negotiating solutions “in the shadow of the law,” with an eye toward the likely adjudicated outcome should the dispute ever reach a legal forum (Mnookin and Kornhauser 1979). What is less obvious is that even violations that reach a legal forum do not neces- sarily result in a judicial interpretation of the law. It is well known, although often overlooked, that only a small fraction of disputes that reach court are adjudicated. It is unlikely that adjudicated disputes are representative of all the disputes that arise under a remedial statute. [T]wo factors . . . influence the evolution of judicial inter- pretations of statutory rights: [(1) Strategic settlement by repeat players:] Although remedial employment statutes give the rule advantage to the employee, repeat player employers may still settle cases they expect to lose and litigate those they expect to win, ensuring that judicial interpretations of the statute occur in cases with the odds in their favor. If repeat players engage in this strategic behavior, Galanter’s analysis predicts that judicial opinions will develop a pattern in which repeat players consistently win. Public interest representation of employees may mitigate this pattern, but on balance, one would predict that over time published judicial opinions inter- preting the scope and meaning of a remedial employment statute would come to favor employers.
- 33. 18 Catherine Albiston [(2)The nature and distribution of rule-making opportunities in the litigation pro- cess:] Litigation is not a one-time choice between trial and settlement. It is a temporally organized process with both rule-making and settlement opportu- nities along the way. For purposes of this article, by “rule-making opportuni- ties” I mean points in the litigation process that may produce published judicial opinions containing substantive interpretations of a statute. That is, I assume that judges create and shape legal rules through published judicial opinions in- terpreting the scope of a statute and that both judges and litigants rely on those published opinions in future litigation. In an employment suit, litigation proceeds in a series of steps, many of which pres- ent rule-making opportunities. An employment lawsuit in federal court typically be- gins with a complaint. Motions to dismiss for failure to state a claim upon which relief may be granted are often the next step in litigation, followed by an answer. After these initial steps, the parties typically engage in a relatively long period of discovery regard- ing the underlying facts of the case. Toward the end of discovery, one or both parties may bring a motion for summary judgment to narrow the issues for trial or dispose of the case entirely. Should the claim survive summary judgment, the case may proceed to trial, typically a jury trial in employment disputes. During or after trial, the parties may bring a variety of trial-related motions. Once the parties receive a final judgment, the case may, but does not always, proceed to appeal. Figure 2.1 illustrates this process. Only certain points in the litigation process present opportunities for a substan- tive interpretation of the statute underlying the employee’s cause of action. The most common rule-making opportunities in employment disputes are motions to dismiss for failure to state a claim and motions for summary judgment. The legal standard for motions to dismiss for failure to state a claim on which relief may be granted favors plaintiffs. These motions test the legal sufficiency of the claim; the court evaluates whether the facts alleged, if true, would entitle the plaintiff Complaint MotiontoDismiss Plaintiff Wins Summary Judgment Either Party Defeats Summary Judgment Trial Jury Trial with No Published Opinion Defendant Wins Owns Motion for Summary Judgment Defendant Wins Plaintiff Wins Own Motion for Summary Judgment Trial Before Judge Only =PrimaryRule-MakingOpportunities (published judicial opinions interpreting the law) Figure 2.1. Rule-Making Opportunities in the Litigation Process
- 34. THE RULE OFLAW AND THE LITIGATION PROCESS 19 to a legal remedy. Courts construe the complaint in the light most favorable to the plaintiff, accept the factual allegations in the complaint as true, and grant the motion only if the plaintiff could prove no set of facts that would support a claim for relief. This plaintiff-friendly standard suggests that employees should win most mo- tions to dismiss in employment cases. Defendant employers, however, are unlikely to bring these motions in every case. [R]ather than routinely filing a motion to dismiss, employers may bring these motions more often in weak cases suffering from legal defects that cannot be cured. Judges’ decisions about publishing opinions also may affect how the law develops. Judges may be more inclined to publish their opinions when they grant motions to dismiss than when they deny them because they be- lieve that granting a motion to dismiss carries more precedential value than a routine denial. Given these factors, one would predict (1) that rulings on motions to dismiss would be some of the first published opinions regarding a new law, (2) a tendency for defendants to prevail in those published opinions, and (3) fewer motions to dismiss than motions for summary judgment in the published body of case law interpreting a new statute. Summary judgment allows courts to resolve cases without the expense of trial where the undisputed facts show that one party is entitled to judgment. Summary judgment permits piecemeal resolution of the case, such as establishing liability with- out determining damages, but may also dispose of the case entirely and thus become an appealable final judgment. Parties often bring summary judgment motions in fed- eral employment cases to narrow the issues for trial or avoid trial altogether. Of all the rule-making opportunities in the litigation process, appeals are the most important because published appellate decisions bind lower courts within the appel- late court’s jurisdiction. Appeals are not automatic. They must be actively “mobilized,” and only losing parties may do so. The decision to appeal provides another opportu- nity for strategic behavior to influence the development of law. The Family and Medical Leave Act The Family and Medical Leave Act of 1993 . . . provides up to 12 weeks of unpaid leave per year for certain employees to care for a seriously ill family member, the em- ployee’s own serious illness, or the birth and/or care of a new child. The law requires employers to hold an employee’s job, or one like it, open for the employee during his or her leave and to continue to pay the employee’s health care premiums during the leave to the same extent the premiums were paid before the leave. An employee’s use of leave may not be the basis for any negative employment action, such as demotion, discipline, or termination. Although the FMLA essentially creates an employment benefit, it is structured as an individual right, enforceable through a private right of action or through an action by the secretary of labor. The data presented are drawn from published judicial opinions interpreting the FMLA in the first five years after the statute was enacted. . . . 221 trial-level opinions
- 35. 20 Catherine Albiston and36 appellate opinions were coded on a number of factors, including their pro- cedural posture, the gender of the plaintiff, whether the opinion was published in official reporters, the prevailing party, the date of the opinion, amicus curiae partici- pation in the matter, and public interest or government representation of the plaintiff. Results and Discussion [O]f FMLA cases at the district court level that were published in the first five years after the statute was enacted . . . the most frequent procedural posture was summary judgment, which constituted about half the published opinions. Motions to dismiss were the next most common published opinions. As predicted, in the published opinions, employers prevailed much more often than employees when the employer was the only moving party on summary judg- ment; employers won 76% of their own motions for summary judgment. Where both parties brought motions for summary judgment, however, employers prevailed only 50% of the time. Outcomes on cross motions may be more balanced because those cases in which employees also brought summary judgment motions were stronger claims. Published opinions on employers’ motions to dismiss for failure to state a claim show a similar pattern. Employers prevailed two to one over employees in these opinions. Once again, “prevailing” was coded only on the FMLA cause of action. De- spite the dominance of employer success, given the theory that employers would only bring motions to dismiss where they were likely to win, it is somewhat surprising that so many employees defeated motions to dismiss. Closer examination revealed that, in many cases, the employer’s motion to dismiss encompassed not only the em- ployee’s FMLA claim but also other causes of action in the lawsuit. Therefore, em- ployers may have evaluated the chances of success of the motions to dismiss with reference to other causes of action and simply added the FMLA claim because they were bringing the motion anyway. As predicted, appeals were relatively rare and took time to work their way through the courts. Only 36 of these 257 published opinions were appeals. In general, appel- late courts tend to uphold trial-level decisions. Employees were the appellants in ev- ery published appellate opinion except two, and employees seldom succeeded on ap- peal. Employers prevailed in approximately 86% of published appellate opinions. These data are consistent with Galanter’s argument that repeat players play for the rules; that is, repeat player employers settle cases they are likely to lose, and litigate cases they are likely to win. Indeed, the incentive to engage in this behavior may be greater at the beginning of the life of a statute where almost every dispute raises a question of first impression. In addition, perhaps the most important insight is what is not represented in pub- lished judicial interpretations of the law: settlement and jury verdicts. That employers win in most published opinions does not necessarily mean that they prevail in most cases despite the protections of the remedial statute.
- 36. THE RULE OFLAW AND THE LITIGATION PROCESS 21 Galanter suggests that public interest representation or participation of amicus curiae representing the interests of one-shot players may ameliorate the advantage repeat players enjoy in shaping the law. Public interest representation was very rare in this group of cases, however. In only seven published opinions did either a public interest organization or the Department of Labor represent the employee. The relative dearth of public interest participation in published judicial opinions may reflect public interest activities outside the judicial forum. For example, the De- partment of Labor accepts and resolves complaints regarding violations of the FMLA. As of June 1998, the department had received 12,633 complaints from employees and found violations of the FMLA in 7,499, or nearly 60%. The department successfully resolved 88% of complaints in which it found a violation of the FMLA, obtaining $11,772,607 in damages from employers. A few results are striking about the Depart- ment of Labor complaint data. First, the figures reported by the Department of Labor suggest that more disputes arise regarding the FMLA than the limited number that reach the federal courts. Indeed, many may not reach court because the department resolves them. Second, the department found violations in 60% of cases, compared with the plaintiff success rate of approximately 22% in the case law, suggesting that employees may mobilize the law and win at least some remedy more often than the case law suggests. Third, the average damage award for the 88% of violations that the department resolved is approximately $1,800, suggesting that administrative com- plaints address disputes over small damages, although aggregate figures include dis- putes that vary in value. [P]ublished judicial interpretations of the statute favor repeat player employers because published opinions may not reflect much of what a statutory right accom- plishes. For example, unproblematic compliance with the remedial statute is no- where represented in these judicial opinions because it does not create a dispute. In addition, the common ways to succeed in an employment dispute after surviv- ing dispositive motions—settlement and trial—do not commonly produce published opinions. Also, some cases settle before reaching any rule-making opportunity or even before reaching court. Thus, by “winning”—either by obtaining a settlement or winning a jury trial—employees render their own experiences invisible to the judi- cial determination of rights, which may eventually erode the power of the remedial statute. Parties evaluate the strength of their positions by taking into account published interpretations of the law. Once a sufficient body of authority supporting an em- ployer-friendly interpretation of the law develops, even plaintiffs with strong cases may have difficulty overcoming the weight of authority against them. Interpretations unfavorable to employees may cause lawyers to decline to take these cases and cause plaintiffs to settle their cases for less. If these circumstances arise, the scope of rights created by a remedial statute may be slowly narrowed and curtailed.
- 37. 22 Catherine Albiston TheRule of Law and the Paradox of Losing by Winning The paradox of losing by winning . . . is that the experiences of individuals who win through settlement, trial, or other legally invisible means are not reflected in the ju- dicial determination of rights. Even if rights mobilization creates benefits for some individuals, the coordinating power of rights adjudication is not equally available to both parties. Plaintiffs and defendants in employment rights litigation do not have the same procedural opportunities to win in the published judicial determination of rights. Courts, as passive institutions, depend on the private mobilization of rights to create both caseloads and rule-making opportunities. Consequently, when repeat player defendants settle cases they are likely to lose, judicial determinations of rights are based on a selective group of weaker cases. Courts’ published opinions do not reflect disputes that eventually settle or result in jury verdicts, nor do they show the benefit of rights in everyday life. At least in employment litigation, the rule-making opportunities in the litigation process magnify this effect by concentrating published judicial determinations of rights in motions where dispositive outcomes occur pri- marily when employers win: motions to dismiss and summary judgment motions. Although this point is significant, it is important not to over-emphasize the for- mal law. Courts interpret the law, but what the law will mean flows from the inter- pretation and transformation of law in ordinary, everyday interactions. Nevertheless formal law remains relevant to social change and everyday life. Judicial decisions are important signposts about the meaning of rights; they do more than resolve the disputes of parties. Through adjudication, courts communicate the scope and moral force of remedial statutes. By deciding disputes, courts specify what constitutes compliance with the law and induce compliance from parties and organizations that may never appear in court. For example, employers may evaluate their compliance with the FMLA according to courts’ enforcement of employees’ rights to leave. If FMLA claims reported in judi- cial opinions rarely succeed, employers may make fewer efforts to comply with the law. In addition, published opinions in which employers consistently win may create an employer-friendly standard for compliance with the law. Published judicial opin- ions also affect private ordering through negotiation. Legal rules establish each par- ty’s bargaining endowments in negotiations by indicating the likely outcome should negotiations fail. If published judicial interpretations of the FMLA favor employers, employers will enjoy an advantage in negotiations by having more legal authority to support their position and arguments. In contrast, little information exists about av- erage settlements or jury awards in similar cases, short of the attorney’s own experi- ences, because these outcomes are difficult to track. The influence of the litigation process on published authority may also affect the future mobilization of rights. Published opinions showing successful claims may en- courage wronged individuals to “name” their injury and claim a remedy or may en- ergize a social movement (Felstiner et al. 1980–81). Conversely, published opinions documenting unsuccessful claims may cause potential plaintiffs to conclude that suc- cess is unlikely and therefore forgo their claims. Published judicial opinions in losing
- 38. THE RULE OFLAW AND THE LITIGATION PROCESS 23 cases may curtail plaintiffs’ access to legal representation because attorneys, particu- larly those who take cases on contingency, decide that those claims are too financially risky to undertake. Thus, the invisibility of successful claims may diminish the mobi- lization of employment civil rights. A steady parade of rulings against employees may also undermine the moral authority of the underlying right itself because laws have constitutive as well as in- strumental influence in society. Judicial interpretations enter a dynamic exchange in which law shapes the routines of everyday life and in turn is informed and trans- formed by everyday categories and routines. Without being specifically invoked or even explicitly considered, law may shape everyday thoughts and actions. It may change the way social interactions take place and are perceived without any explicit awareness of the legal underpinnings of this change. Finally, legal recognition and validation of rights communicate normative judgments about the underlying rights themselves and those who claim them. When the public face of adjudication shows primarily employer wins, judges and citizens may come to believe that the dubious claims reflected in published opinions accurately depict the underlying nature of all rights claims under a statute and that most claims lack merit. If the litigation process systematically excludes information about both violations and successful mobilization of rights from the judicial determination of rights, this information has only limited opportunity to affect future mobilization, compliance, and negotiation. Over time, this dynamic may curtail the capacity of the law to pro- duce social change by inhibiting mobilization, requiring little for compliance, reduc- ing the settlements negotiated in the shadow of the law, and limiting the favorable legal authority available to employees in future disputes and thus curtailing their likelihood of success. Once this process restricts the scope and meaning of statutory rights, the law’s capacity to reshape social relations may become similarly confined.
- 39. 24 3 The Good Case Decisionsto Litigate at the World Trade Organization Joseph A. Conti This article examines the decision to initiate litigation in the dispute settlement mech- anism of the World Trade Organization (WTO). Prior empirical research has focused on determinants of participation in WTO disputing but without full consideration of the social processes by which the decision to litigate is made. To the extent that these processes have been subject to study, scholars have presumed that initiation of a formal WTO dispute results from a cost-benefit analysis, and they have conceived of dispute initiation as a way to force “renegotiation” of a trade relationship, elimi- nate inefficiency caused by protectionist trade policies, and yield outcomes congruent with the quest to maximize national income. This approach strongly presumes the stability of preferences over time and across contexts, and that the decision to litigate originates primarily out of structural relationships, such as the volume of trade and diversity of trade partners, type of political regime, gross domestic product, or litiga- tion capacity. While recent efforts have sought to incorporate political dynamics into the study of WTO litigation, the empirical literature on WTO dispute settlement is fundamentally dominated by the presumption of market-based rationales. In contrast, this article adopts a sociolegal approach to understanding the practice of international law-in-action and critiques the market rationality of prior analyses. I argue for a socially based understanding of rational action that attends to the specific social context in which a decision is made . . . [and] the social bases of rationality in the decision to initiate disputes at the WTO through identification of what partici- pants in the dispute settlement system described as a “good case.” This can take on different meanings depending on the facts of the trade grievance, the participants involved, and the political context. Its multiple meanings stem from uncertainties de- rived from the structure of the WTO dispute settlement system, most notably the close relationship between legal and diplomatic modes of engagement. Taken as a whole, the overlapping and flexible meanings of the good case provide a set of motives for transforming a trade grievance into a WTO dispute. This approach situates rational decisionmaking in WTO legal proceedings in larger organizational, professional, and institutional contexts that reveal the interplay of interpersonal Abridged from Law & Society Review 42, no. 1 (2008): 145–82.
- 40. THE GOOD CASE25 relations, organizational settings, political context, formal law, and cultural meanings that produce the practice of international law. Through invocation of elements of the good case, all members may behave rationally in the context of initiating a WTO dispute. But the meanings authorized by these motives lead to very different expec- tations about what litigation may likely produce and, in turn, which actions make sense. Where the economically powerful may choose to litigate for full legal victory and compliance, weaker members may choose to litigate for symbolic or communi- cative purposes decoupled from strong expectations of compliance. Understood in this larger context, the rationality of the decision to litigate subsumes and legitimates significant inequalities between member nations. The WTO Trading System The dispute settlement process of the WTO is governed by the Dispute Settlement Un- derstanding (DSU) and can be divided into three phases: (1) a consultative phase, where a dispute is formally announced and the parties are required to engage in diplomatic dialogue, before progressing to (2) the adjudication phase, where WTO review panels make determinations about member nations’ trade practices, and (3) an implementa- tion phase, where the dispute settlement process focuses on appropriate implementa- tion, enforcement, and compensation. This article focuses on the decision to “claim” a trade grievance as a legal problem and transform it into a formal WTO dispute. WTO dispute settlement is at best “quasi-juridical” (Pauwelyn 2000: 337–42). That is, the mobilization of WTO law is almost always accompanied by the possibility of recourse to diplomatic modes of engagement. This is an intentional feature of the dispute system and legacy of the GATT [General Agreement on Tariffs and Trade, which the WTO replaced]. It is meant to promote the settlement of disputes, rather than exact punishments, and to do it without threatening its members’ sovereignty. In drafting the Uruguay Round Agreement [that established the WTO], negotiators utilized the “constructive ambiguity” of treaty language to build consensus around rules without specifying their precise meaning (Petersmann 2005: 128). As a result, member nations have increasingly used the dispute settlement mechanism, rather than negotia- tions, to obtain clarification of their WTO obligations. At the same time, panels and the Appellate Body formally lack the ability to establish precedent, as this is deemed to undermine the right of member nations to negotiate their international obligations. The Good Case as Motivated Social Action Felstiner et al. (1980–81) have examined motive and rationality in the context of civil law. The perception of a grievance—the understanding of an event as injurious— and the assignment of blame invoke sets of motives and provoke certain kinds of action. The eventual resolution of that grievance requires contest, negotiation, per- suasion, and perhaps litigation over conflicting sets of motive. In these situations,
- 41. 26 Joseph A.Conti motive is shaped by ideas about the “nature, function and operation” (Trubek 1984: 592) of the law and legal institutions held by the aggrieved party and their reference groups. Such “agents of transformation” (Felstiner et al. 1980–81) provide information and assign meaning to the grievance and potential actions, including seeking redress through formal legal institutions; they help define the terms by which any given ac- tion can be judged as “rational.” As Felstiner et al. argue, the reification of disputes by institutions, which “reduc[e] them to records,” obscures the unstable and subjec- tive manner by which people assign meaning to specific actions and chart further courses (1980–81: 631). In contrast, a motivational understanding of the decision to litigate permits its examination as a social phenomenon formulated through mean- ings, though perhaps unstable and subjective, available in particular social situations. Where Felstiner et al. (1980–81) and Sarat and Felstiner (1988, 1995) emphasize legal consciousness in the processes through which motives in disputing emerge, Galanter (1974) focuses on structural relationships between parties and the dispute settlement institution. He highlights the impact of experience and unequal resources on parties’ motives, strategies, and goals in litigation. Repeat players enjoy many ad- vantages, including greater access to resources, familiarity with the dispute institu- tion’s rules and practices, lower start-up costs, and informal relationships with agents of the institution. As a result, repeat players have the strategic option of “playing for the rules” and investing in the shaping of jurisprudence. One-shotters, in contrast, lack these advantages, are less able to identify a “good” case, and are more likely to enter litigation without the strategic ability to affect the ongoing development of law. The structural position of parties in relation to the operation of legal institutions shape which sets of motive appear rational, credible, and legitimate. Similar to the context of civil law, the good case constitutes the complex of mean- ings that accompany mobilization of WTO law and the transformation of a trade grievance into a formal trade dispute. The process by which a trade grievance is identified as “good” reflects contextual constraints, such as the ability to marshal resources; personal, professional, and organizational goals; and routine knowledge of formal and informal legal mechanisms generated through experience. Taken to- gether, the good case is the set of motives that constitute the rationality of the context in which the decision to litigate is made. The good case depends on context and, as that context changes, so does the meaning of the good case and the motive for litiga- tion. Those disputes that are not good cases will generally not be litigated (with some significant exceptions), WTO law will not be directly mobilized, and the aggrieved parties will have to look to alternative forums. The situation of the WTO as an international forum of states, the specific struc- tures of its dispute settlement system, and the intertwining of law and politics in its procedures distinguishes the set of motives available to actors in the WTO from other legal contexts. These features of the WTO system, however, also create signifi- cant uncertainty about the outcomes of a given dispute. Similar to Galanter’s linking of motives and strategies in litigation to the structural relationship of parties to the dispute institution, distinctive features of WTO litigation make different strategies and goals available to WTO members, depending on their relationship to the dispute
- 42. THE GOOD CASE27 settlement process. In this way, uncertainties attached to litigation at the WTO create flexible and overlapping meanings of the good case, which in turn shape which griev- ances are transformed into a dispute and why. Interviews and Analysis The data for this article consist of 30 semi-structured interviews conducted with in- fluential WTO actors between May 2004 and May 2006 in four locations: Chicago; Washington, D.C.; Brussels, Belgium; and Geneva, Switzerland. Ten of the interviews were with senior legal counsel or ambassadors working in trade ministries of three major Northern trading countries and five nations of the global South. Interviewees also included a former Appellate Body chair, WTO Secretariat staff in several divi- sions, private attorneys, and a former ambassador to the WTO working as a private consultant. Three initial participants were identified through personal networks and the remaining through purposive, “snowball” sampling and by directly contacting trade ministries and law firms. One interview was conducted over the phone and another through a series of e-mail exchanges; the rest were conducted in person, gen- erally lasting between one hour and one hour and a half. Uncertainties in WTO Litigation The meaning of a good case at the WTO is flexible because of significant uncertain- ties associated with litigating in the dispute settlement process. Interviewees identi- fied several types of uncertainty that are manifestations of four features of the WTO: the newness of the system, the organizational and legal structure of the dispute sys- tem, the WTO as an intergovernmental agreement, and the persistence of inequality between states. The emergent and developing character of WTO jurisprudence combined with the lack of formal authority to establish precedent creates considerable uncertainty re- lated to determining what arguments must be made to construct a good legal case. The organization of the panel review stage of the dispute settlement system produces uncertainty about how a case should be pleaded. While the Appellate Body is com- posed of jurists who serve a set term on the bench, each panel is assembled on an ad hoc basis for each dispute. The DSU permits the parties involved in the dispute to nominate potential panelists, with the final panel composition requiring the consent of both parties. As a result, the ad hoc system favors newer and less experienced pan- elists who may or may not have legal training or expertise in the relevant details of the dispute. Even if the panelists have legal training, they tend to come from diverse legal traditions and have little or no experience adjudicating legal matters, particu- larly diplomatic texts that contain inherent ambiguities. The ability of counsel to identify a good case is limited by [the intergovernmental treaty basis] of the WTO dispute settlement system that makes ensuring compliance
- 43. 28 Joseph A.Conti with WTO rulings difficult. A Washington, D.C.–based private attorney suggested that the potential for protracted litigation to not result in any significant compliance threatens to undermine WTO dispute settlement altogether: But probably the biggest problem is implementation. You win cases and . . . there’s a good chance you will not get any kind of successful implementation to satisfy your cli- ent. That will continue to be a problem, and will ultimately undermine the system un- less something is done to fix it. This comment also points to the tenuous meaning of winning in the context of WTO litigation. A legal victory may not in any automatic way translate into compliance. Another direct result of the stateless context of the WTO is the quasi-juridical rela- tionship between legal procedures and diplomatic engagement prior to and through- out the formal processes of dispute settlement. The rules of dispute settlement offer numerous opportunities to return to diplomatic engagement. This is evidenced in several features of the process, including mandatory consultation between the parties prior to a panel review, the release of preliminary panel findings to the parties be- fore the review is made final, and the difficulty of securing complete compliance with panel and appellate body determinations. The quasi-juridical character of the dispute system and the influence of diplomatic norms on litigation disrupt expectations that WTO panels should operate according to formal legal principles. The challenge of identifying a good case posed by the quasi-juridical character of the WTO dispute settlement system is made more difficult by unequal distribution of legal and human resources between member nations. This feature of WTO dispute settlement is a product of historic inequities in the international system and affects nearly all activ- ity at the WTO. Participating in the dispute settlement system is a time-consuming and sophisticated legal and political task, requiring teams of lawyers, economists, diplomats, and politicians. Inequality operates through various institutional forms including the di- rect costs of litigation, the requisite expertise and experience, and administrative and bureaucratic infrastructure to support the process. The fees for a single case can reach into the millions of dollars. The ability to identify the good case is in part a reflection of the steep learning curve associated with litigation at the WTO. Those members who do not regularly participate are at a disadvantage in identifying whether a case is good. International inequality also affects the capacity to dispute through the character of public–private linkages over trade issues. Effective participation at the WTO is en- hanced through close cooperation between industry and government because industry can provide evidentiary data as well as subsidize the cost of attorneys and other person- nel. For instance, while a country may contract with a private law firm to assist in litiga- tion, the decision to do so presumes the prior identification of a legal argument. Where countries lack domestic international trade professionals and a competent private sector, the identification of a trade grievance in the first place may pose difficulty. This is why lack of legal capacity is not merely reducible to a question of economic resources: utili- zation of legal services requires the experience, understanding, and orientation—besides the money—to perceive a grievance as a legal problem and then mobilize the law.
- 44. THE GOOD CASE29 Larger trading nations are more likely to have a specialized government unit for handling international trade affairs. As a former Appellate Body panelist reported, the ability to identify a good case corresponds to those delegations that are “more socialized” into the WTO legal system. This socialization includes expansive internal structures for evaluating the possibilities of WTO jurisprudence: The difference between let’s say the United States and the EU on the one hand, Ja- pan also, is that they have very elaborate internal structures dealing only with these issues. So they are more socialized in that they can make greater prediction. . . . [A]s you know, the proceedings are confidential . . . and about half the membership has never participated in a litigation so they don’t know how it works because unless you are a [third] party . . . intervening in the case because there is a systemic issue which is of interest to you, you don’t know how it works. An American official put it more bluntly: “We’re big and we’re rich and we can hire lots of people to do the dirty work.” As a result, more-affluent members of the WTO system are more inclined to take advantage of WTO law and more likely to engage the process fully prepared, with a well-developed sense of what can be achieved. Uncertainties are pervasive and significant in the WTO dispute settlement sys- tem. But these are not experienced in the same way by each delegation, which has different capacities to effectively adapt to them. Member nations may be forced to abandon litigation or to not initiate litigation at all. A Geneva-based private attorney, when asked about whether some members may be inhibited from participating in dispute settlement, responded: Yes, countries are inhibited because they don’t have the resources, they don’t have the un- derstanding, they don’t have the personnel, they have higher priorities. But, they are also inhibited because they know that there are political sensitivities; they’re getting something in return, that . . . they might get more aid if they keep their position, if they’re quiet. Meanings of the Good Case One of several important adaptations to uncertainty within dispute settlement is flexibility in the meaning of the good case that enables and encourages partici- pants to adopt more modest, alternative goals that may be something considerably less than complete legal victory and full compliance. A trade issue alone may not be sufficient by itself for a case to go forward and instead must align with other situational features. The “damage” of a trade problem must be of an appropriate magnitude or match with various goals and priorities of the government. An oth- erwise good case that is of relatively small economic or political impact may not be litigated unless it furthers some goal of the government. On the other hand, a dispute with enormous economic or political stakes may be avoided due to risks associated with disputing. At the same time, the dispute where a legal victory is
- 45. 30 Joseph A.Conti most likely may not be litigated. Instead, according to respondents, “best cases” are more likely to result in mutually agreed settlements prior to the completion of litigation. [R]espondents identified six elements of the good case. By themselves or together, these are the meanings that motivate the initiation of a formal WTO dispute. All-Out Victory The first type of good case is one that involves a substantive trade issue that can be argued in reference to WTO jurisprudence to produce a favorable judgment on criti- cal issues and that will trigger full compliance with WTO rulings. Relative Gain Another type of good case is one that is expected to result in relative gains through partial compliance. It is based on the expectation of a legal victory on critical issues that will, in turn, pressure the losing government to make substantive changes to its trade policies. But the complaining member realizes that the prospects of full compli- ance may be low. Any member nation, by virtue of its national sovereignty, retains the formal right to not comply with WTO rulings. In practice, however, noncompliance is less of an option for poorer states that are more vulnerable not only to WTO mechanisms for inducing compliance, but also to extralegal pressures, such as withdrawal of foreign aid. The United States, followed by the EC, are the most frequent noncompliers with panel and Appellate Body rulings. Sending a Message A case may be worth pursuing because it communicates a message. The type of mes- sage and the intended target may vary. A good case may facilitate the “education” of the citizenry and political leadership of a trading partner about a trade problem and create pressure for action through visibility in mass media. This is especially impor- tant when expectations of compliance are weak. A second form of disputing-as-com- munication intends to trigger diplomatic action to resolve the grievance. Referencing scholarship on civil litigation, this has been termed negotiating in “the shadow of the law” (Mnookin and Kornhauser 1979). The initiation of a formal complaint can thus contribute to an informal settlement. Complementary Goals A good case furthers government goals and priorities in areas beyond the dispute at hand. National governments may prioritize issues such as intellectual property rights or obtaining greater market access. Disputes will be chosen that further those goals. More dramatic, a good case may be intended to affect ongoing WTO negotiations. In
- 46. THE GOOD CASE31 this scenario, a dispute will be chosen with the intent of altering the bargaining posi- tion of the participants by clarifying obligations under the WTO treaties. Systemic Issues Although informants reported that disputes are rarely initiated for purely systemic rea- sons, concern for shaping WTO jurisprudence and the procedures of the dispute system are factors considered in combination with substantive trade issues. A U.S. official re- ported that systemic disputes are unlikely unless vigorously pushed by private industry. Shame Avoidance At the WTO, legal counsels appear particularly attuned to the risks of political em- barrassment for themselves and their superiors and, as a result, will only take good cases to litigation. This concern underpins all other considerations of a good case. Informants reported that embarrassment is attached to losing a case among Geneva- based officials. Other informants reported a sense of national shame associated with high-profile losses at the WTO. Discussion and Conclusion Litigating for legal victory and full compliance is the highest standard of the good case, and disputes that most closely approximate this tend not to be litigated. At the same time, this motive is less frequently available to members from developing coun- tries. Like Galanter’s typology of repeat players and one-shotters, unequal access to human and legal resources, unequal experience with the processes of the dispute settlement system, and lower expectations of compliance shift the good case toward emphasis on relative gain, symbolic victory, and communicative power, particularly among the “have-nots.” In these instances, it is no longer rational to expect the “ben- efits” of litigation to exceed the “costs” in terms of economic gain. While each par- ticipant confronts uncertainties in WTO litigation, the flexibility of the good case covers over differential capacities of unequal members to confront them. The good case provides a basis for action while institutionalizing inequality in the practice of international trade law. The multiple elements subsumed in the good case thus de- marcate the limits of rational behavior in disputing for each member of the WTO. In this fashion, the good case reflects the hegemony of the economically powerful in WTO proceedings, who have the greatest latitude for rational behavior, while le- gitimating the dispute settlement mechanism as a formally fair and open forum for settling disputes for all.
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- 48. 35 4 Convictability and DiscordantLocales Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking Lisa Frohmann What categories do prosecutors use to assess sexual assault cases? What are the ram- ifications of using case convictability as a decisionmaking standard? How do race, class, and gender become salient in prosecutors’ decisions? In this article I attempt to answer these questions by analyzing ethnographic data about prosecutors’ work in a sexual assault unit. Previous research has demonstrated how descriptive practices have been used in legal processing. Person descriptions have been used to constitute moral character for purposes of negotiating plea bargains; to determine an organizationally relevant response to a juvenile’s behavior; and to assess the credibility of a rape account. Place descriptions have been invoked by police and prosecutors to identify trouble and sus- picion, suspects, and motives and identity. Activity descriptions have been used to identify persons and infer moral character. A little-explored dimension of categorization work is the interplay of place and person descriptions. An examination of prosecutors’ discourse on case convictability (the likelihood of a guilty verdict at trial) reveals how when deputy district attorneys (DDAs) categorize both victims, defendants, jurors, and their communities and the location of crime incidents, they are constructing discordant locales. By ascribing ste- reotypical characteristics of a neighborhood to victims, defendants, and jurors, pros- ecutors construct distinct groups with different cultures who live in geographically separate spaces and have different schemes under which they interpret the everyday world. In other words, “discordant locales” refers to a clash of cultures represented by these disparate locations. These descriptions are informed by prosecutors’ knowledge of the sociogeographic landscape, cultural images of race and class, and work-related knowledge. I use “discordant locales” as a shorthand for a discourse practice used by prosecutors to justify case rejection. Discordant locales create good organizational reasons for case rejection. When jurors, victims, and defendants are from discordant locales, prosecutors anticipate that jurors will misunderstand the victim’s actions and misinterpret case facts and thus lower the probability of guilty verdicts at trial. This is highly problematic for Abridged from Law & Society Review 31, no. 3 (1997): 531–66.
- 49. 36 Lisa Frohmann prosecutorsbecause convictability is the organizational standard on which prosecu- tors file cases. If cases are unconvictable, prosecutors have to bear the consequences. An analysis of prosecutors’ decisionmaking discourse refines our understanding of the use of moral character by legal agents. In addition to providing an example of how place and person descriptions work together in legal settings to construct moral charac- ter, prosecutors’ construction of places as discordant locales is significant because it ac- knowledges multiple sets of normative behaviors against which prosecutors can evaluate standards of moral character. This differs from how scholars traditionally have viewed moral character, as a moral or normative standard from which some people deviate. It opens up the possibility of more than one cultural norm. Recognition of more than one normative standard has the potential to decenter dominant social relations, depending on how prosecutors use their knowledge when constructing discordant locales. For prosecutors, these multiple normative standards are connected to race and class, and the prosecutors routinely focus on gender norms because the cases being consid- ered are sexual assault cases. Thus this study examines how race, class, and gender are made salient within the organizational structure and logic of case convictability. Data and Method This research is drawn from a larger ethnographic field study on the prosecution of sexual assault crimes by deputy district attorneys in special sexual assault units. The data for this study were collected through participant observation. For eight months I observed case processing in the sexual assault unit of the prosecutor’s office in Cen- ter Heights, one of 11 branch offices in a major metropolitan area on the West Coast. During this time I observed 40 case processings. Four attorneys staff this unit. The cases brought to the Center Heights courthouse are drawn from five police jurisdic- tions, which cover predominantly poor black and Latino communities. Jury panels are drawn from a 20-mile radius of the courthouse. The communities that fall within this circumference are segregated by race and class and range from poor to very wealthy. Potential jurors are randomly chosen from voter registration, driver’s license, and welfare roll lists. I recorded my observations of the interactions in detailed field notes. I was not permitted to tape any of the case proceedings; thus I attempted to record the talk and interactions I observed as accurately as possible. I supplemented my field notes with open-ended interviews with the prosecutors and detectives in the unit. These inter- views were recorded. The data for this study are drawn from a mixture of observa- tions and interviews. The Context of Prosecutorial Case Filing Decisions Case filing is the point when prosecutors decide which cases will go on for adju- dication by the courts. The standard used by prosecutors for this decision is case
- 50. CONVICTABILITY AND DISCORDANTLOCALES 37 convictability—the likelihood that a jury would return a guilty verdict. Typically, prosecutors assess cases as unconvictable and they are rejected from the system. The concern of district attorneys with convictability is shaped by the organiza- tional policies and procedures of the prosecutor’s office and the courts. The decisions are made within the organizational context of the prosecutor’s office, the institutional structure of the court system, and the political context of the community. Prosecu- tors’ decisions have implications for promotion possibilities, transfers, their own rep- utations as well as the reputation of their unit, and the branch office. Concern with convictability creates a “downstream orientation” in prosecutorial decisionmaking—that is, an anticipation and consideration of how others (i.e., jury and defense) will interpret and respond to a case. During complaint filing, prosecu- tors orient particularly toward “the jury,” an ideal type formed from a composite of their previous trial experience, discussions with other prosecutors, and prosecutors’ general cultural knowledge about the norms and mores around sexuality, heterosex- ual relations, and violence. This orientation takes two forms. First, prosecutors an- ticipate defense arguments to assess whether they can construct a credible account of the incident for the jury. Second, prosecutors invoke anticipated jurors’ interpreta- tions of case “facts” as the standard of convictability. Thus, the ability to construct a credible narrative for the jury and the jurors’ ability to understand what happened from the victim’s viewpoint are pivotal in prosecutors’ assessment of case convictabil- ity. A prosecutor’s anticipated inability to get a guilty verdict from a jury is a legiti- mate justification for case rejection. Constructing Discordant Locale Categorizations Prosecutors presume that we live in a segregated society and that since the occu- pants of these segregated spaces have distinct cultures, they use different interpre- tive frames for making sense of and organizing the world. Living in segregated space means people have limited first-hand knowledge of people who are different from themselves. When people have limited contact, they form “place images” of other communities and their residents to make sense of their lives. The [following] example is a passage from an interview, with comments to the detective after the interview. The DDA’s questions and comment reveal two categori- cal descriptions: the Center Heights community and the victim. The DDA intimates the power of these different descriptions when considering how the jury, who reside outside of Center Heights, may interpret the situation. DDA: So you left LaDonna’s house about 1:15–1:20 a.m. and you got to the corner about 4:30–5:00 a.m. Do you think the jury will believe that? You walked a 30-minute mile—six miles equals three hours. Right on the money. I’ve got to figure this out because if we establish something way off the mark, the defense will use that to say you are lying. Will these people be willing to come in and corroborate you?
- 51. 38 Lisa Frohmann DetectivePalmer told you what the defendant said: same old story. “You were all out there selling your bodies for cocaine and you agreed to sex in exchange for cocaine he gave you.” At the hospital if they tested the blood for any drugs would they find any? Witness: No. DDA: Drugs stay in the system a long time. Cocaine for 72 hours. PCP for two weeks and marijuana for two days. Will we find cocaine? Witness: No. DDA: That is something else we can use to rebut the defense lie that you were out selling your body for drugs. Throughout this interview, the DDA tried to “make sure” that the defense could not successfully argue that the women were trading sex for drugs. When the women left, the DDA asked the detective: What do you think? I kept them here a little longer to make sure they were playing it straight. They didn’t have the money to get home any other way so they have to walk long distances. People might wonder, but when you are less fortunate . . . The DDA initially categorizes the victim as a prostitute by quoting the defendant’s account of events: “You were out there selling your bodies for cocaine and you agreed to sex in exchange for cocaine he gave you.” Preceding the quote with the statement “same old story” suggests that this defense is often used against rape allegations in Center Heights; it is a form of “discursive hegemony” that makes prostitution activity appear “natural” and “normal” for Center Heights. The DDA plays this categoriza- tion of women in Center Heights off an alternative description of women in Center Heights as poor, well-meaning individuals who, because of their lack of resources, are often victimized. The “people” whom the prosecutor suggests might wonder about the victim’s be- havior are the jurors. The jurors, we know from previous characterizations, are typi- cally described as white and wealthy. The victims and suspects are black and Latino and poor. By expressing concern that the jury will view the victim’s behavior through the lens of drugs and prostitution rather than poverty, he is suggesting that jurors categorize Center Heights as a drug- and crime-ridden community. By anticipating the jurors’ viewpoints, he constitutes discordant locales, two places where residents have distinct categorizations schemes for making sense of the victim’s behavior and describing her moral character. Voice and the Construction of Discordant Locale Categories Prosecutors voice the positions of others to evaluate actions, actors, events, and lo- cations and as a strategy for producing legitimate, authoritative, and persuasive ac- counts of case decisions. Through expressing others’ positions, the DDA displays the
- 52. CONVICTABILITY AND DISCORDANTLOCALES 39 complexity of case processing, giving their accounts a measure of professionalism and authority. They also demonstrate objectivity by taking account of various par- ticipants’ standpoints (i.e., victims, jurors, and court officials). These multiple posi- tions are a key element in the construction of discordant locales; by shifting between the perspectives of jurors, victims, residents, defense attorneys, and prosecutors, the DDA voices the discordant categorization schemes. [I]n the next account, the DDA’s categorization of discordant locales is constituted through her understanding of the jury. Here the prosecutor plays the role of knowl- edgeable outsider and cultural translator. The DDA is telling me about a preliminary hearing she just finished at which some of the suspects who had not yet been ar- rested appeared in the courtroom to watch the hearing. When the victim walked into the room, she identified her other attackers and police arrested them immediately. The DDA is telling the story of the case. I asked her why she didn’t say anything about it [a previous rape]. She said it would get back to her girlfriend and they would know who did it and they would kill her. I asked how come she reported this rape. She said that there were three girls on the corner with her, and they [the attackers] wouldn’t know which one told. It is such a different world. I go home to Oakdale Beach and watch the sunset, and they are here thinking about survival. I don’t think someone is going to shoot me or rape me. I have to understand the way of life here or I’ll never be able to convince a jury. If I don’t, they won’t under- stand why she was out at 5 a.m., and why she didn’t report the first rape but she did report the second. The DDA categorized the locations as discordant locales by contrasting her con- cerns at night with those of victims who live in Center Heights. On a continuum of familiarity with life in Center Heights, the DDA positions herself as more knowl- edgeable than jurors. By acknowledging her limited understanding of life in Center Heights, she locates jurors farther out on the continuum, increasing the cultural dis- tance between places, bolstering the categorization of discordant locales. Her knowl- edge of life from the standpoint of the victim suggests the outsiders are the naive jurors. Her role as cultural translator recognizes that although jurors may be outsid- ers, their ability to understand the victim’s standpoint is crucial to case convictability. Prosecutors construct Center Heights and “Other” areas where jurors live as dis- cordant locales. Through the interplay of person and place descriptions they char- acterize these areas as distinct geographically, racially, economically, and culturally. Categorizing these places and persons as discordant locales provides an organization- ally sound justification for case processing decisions. In accounting for cases, prosecutors voice the standpoints of different court play- ers. Although they temporarily decenter the mainstream standpoint of the jurors by adopting that of Center Heights residents, this decentering becomes a technique for demonstrating the prosecutor’s own objectivity. The prosecutor’s shifts in align- ment allow the DDA to display consideration of a case’s complexity and the power of organizational logic. It is a mechanism for the prosecutor to express frustration at
- 53. 40 Lisa Frohmann jurors’ignorance, the prosecutor’s position vis-à-vis the victim and prosecution, and to display one’s position as an organizational player. The prosecutor’s ability to shift standpoints shows the potential for change if legal agents can act from those nonhe- gemonic standpoints. It also demonstrates the power of institutional logic that they do not act from other standpoints. Conclusion Discordant locales are prosecutors’ categorizations of places and the people associated with them that they encounter in the work of case prosecution. DDAs’ categorizations are informed by their typifications of area activities, residents and their lifestyles, and cultural images and ideologies of specific race/class groups. Mapped onto the place de- scriptions are sets of attitudes, behaviors, values, and norms that are attributed to those who reside in, use, or pass through these areas. Through the interaction of place and person descriptions, prosecutors constitute the moral character of persons and place. Categorization of places as discordant locales is a justification for case rejection. Prosecutors maintain that different race and class groups create separate cultures, which in turn have distinct categorization schemes for understanding the social world. These differences, according to prosecutors, lead to misinterpretations by ju- rors of victims that would result in “not guilty” verdicts if the cases were forwarded. The organizational concern with convictability renders discordant locales a legitimate and frequent unofficial justification for case rejection. This would not appear on of- ficial, written accounts of case rejection; reasons given there typically would be “vic- tim’s unwillingness to cooperate” and “insufficient evidence.” Given the convictability standard, what are the implications of discordant locale categorizations for the legal system? In addition to possible individual miscarriages of justice that occur when prosecutors decide not to pursue cases that they believe to have factual basis, I suggest that the pattern of their decisions has wider sociolegal significance. An intended consequence is the evaluation of cases as convictable or un- convictable, winnowing “weak” cases out of the system. This is seen as organization- ally necessary, to relieve the overburdened court system of cases that would use up resources and lead “nowhere.” An unintended consequence of prosecutors’ decisions is to legitimize specific ideologies of race and class and contribute to the reproduction of social inequality in the criminal justice system. Whether prosecutors are recognizing the force and reality of the moral judgments of middle-class white jurors or adopt- ing these judgments as the basis for their decisions, certain people are more likely to be excluded from justice. As Merry (1990) argues, participation in the justice system is part of a sense of entitlement. Whatever the paradoxes of victims actually using the legal system, when some victims are routinely dismissed because their stories do not fit the hegemonic group’s image of a real victim, that widens the division between those who have access to the law and those who do not. Furthermore, prosecutors us- ing this justification reinforce the idea that social arrangements organized around race and class are “natural,” which in turn reifies the differences and misunderstandings.
- 54. CONVICTABILITY AND DISCORDANTLOCALES 41 For those working to create a just legal system, these data suggest that changes in organizational policies may be necessary to expand and equalize citizens’ access to the law. Reformulating how the convictability standard is used through policy changes would be one possible intervention. For example, allowing prosecutors to file a certain percentage of believable but risky cases without regard to convictabil- ity without negative consequences may open the boundaries of what prosecutors conceive as convictable. In addition, giving anticipated jurors’ norms and values less weight at the filing process might also bring a greater variety of cases into the system. If prosecutors dealt with actual juries to prosecute more of these cases, they might learn how to win the cases, hence expanding what is perceived as “convictable.” Examining how prosecutors construct discordant locales reveals the depth at which we must look to see how race, class, and gender systems are constituted and maintained through legal decisionmaking. The ideologies that constitute the social order are not just perpetuated by overt or purposeful activity. Micro-level interpre- tive practices that may not appear to have race-, class-, or gender-biased intentions nevertheless contribute to the institutionalization of these biases. Prosecutorial ac- counts can unintentionally perpetuate historical social relations by contextualizing prosecution decisions in cultural representations of places and people. We live in a culture that has been built on an unequal distribution of economic and political re- sources by race, class, and gender. Drawing on these frameworks of interpretation to make sense of case facts and to justify case decisions continues the current social order and its division of resources and influences.
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