Law Commons^™

Max Weber, Talcott Parsons And The Sociology Of Legal Reform: A Reassessment With Implications For Law And Development, Chantal Thomas

Chantal Thomas

No abstract provided.

Re-Reading Weber In Law And Development: A Critical Intellectual History Of "Good Governance" Reform, Chantal Thomas

Chantal Thomas

The "Weberianism" of the modern age derives from the influence of three theoretical concepts in Weber's work. First, Weber described the development of "logically formal rationality" in governance as central to the rise of Western capitalist democracy. Second, Weber posited that Protestant religious ethics had helped to promote certain economic behaviors associated with contemporary capitalism. Third, Weber identified the rise of bureaucratic governance, as the primary means of realizing logically formal rationality, as distinctly modern. This essay examines the influence of these basic insights on discourse on legal reform in developing countries. The prioritization of legal and institutional reforms to …

Privacy As Trust: Sharing Personal Information In A Networked World, Ari Ezra Waldman

Articles & Chapters

This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.”

The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy …

Desarmar Al Populismo, Un Nuevo Objetivo En La Unión Europea, Luis González Vaqué

Luis González Vaqué

¿De qué manera puede hacer frente el espíritu europeísta al creciente populismo que, en todo el continente, encuentra su principal argumento en el rechazo a la inmigración?

Soy europeísta y optimista (no creo que se pueda ser lo uno sin lo otro), pero he de reconocer que la UE comunica mal, o, utilizando una expresión más post-moderna, se vende mal… A ello contribuyen incluso los representantes políticos de todos los niveles que caen en la tentación de echar las culpas de todo a Bruselas, especialmente cuando lo practican los gobiernos nacionales y los partidos políticos por motivos políticos internos: esta …

The Emergence Of Constitutionalism As An Evolutionary Adaptation, Fabio P L Almeida

Fabio P L Almeida

The emergence of modern societies is an evolutionary puzzle. Homo sapiens is the only animal species capable of cooperating in large-scale societies consisting of genetically unrelated individuals. From a biological point of view, this feature leads to enormous questions. Social scientists typically assume that human life is lived in large-scale societies as a result of cultural, social and institutional history. In this perspective, social institutions such as law, economy and religion enhance cooperation to higher levels. Gene-culture coevolutionary theories have studied this issue in an integrated framework that accounts for social and biological theories of cooperation. These theoretical approaches have …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

"…And Women Must Weep" V. "Anatomy Of A Lie": An Empirical Assessment Of Two Labor Relations Propaganda Films, Thomas G. Field Jr., Juanita V. Field

Pepperdine Law Review

No abstract provided.

Manufacturing Moral Panic As Political Distraction: An Empirical And Social Theoretical Analysis Of Domas, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. After concluding that they do not, the article analyzes what variables are, in fact, correlated with family stability. Specifically, the relationships between families below the poverty line, men and women married three or more times, religiosity, percent conservative versus liberal in a state, disposable income, percent with bachelor’s degree, and median age of first marriage, and marriage and divorce trends is fully explored. Next, the article applies the sociological concepts of moral entrepreneurism, which …

The Changing American Family: Can The Courts Catch Up?, George Thomas

Pepperdine Law Review

No abstract provided.

Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman

Articles & Chapters

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

Is The Prosecution Of War Crimes Just And Effective? Rethinking The Lessons From Sociology And Psychology, Ziv Bohrer

Michigan Journal of International Law

Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? International criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts. Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes. During the last two decades the role of ICL has become gradually more significant, and the fall of the …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

All Faculty Scholarship

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

Sungjoon Cho

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

What Does A Sociology Without Borders Look Like?, Tanya Golash-Boza

Societies Without Borders

In this essay, I consider what a sociology without borders would look like through an exploration of two questions: 1) How can sociology be mobilized to make the world a better place? and 2) What does a sociology of human rights look like? To answer these questions, I take the reader through a discussion of the history of Sociologists without Borders, the influence of Professor Judith Blau, and my own excursions into the sociology of human rights in the United States and abroad.

Joyce Apsel On The Oxford Handbook Of Genocide Studies. Edited By Donald Bloxham & A. Dirk Moses. New York, Ny: Oxford University Press, 2010. 675pp., Joyce Apsel

Human Rights & Human Welfare

A review of:

The Oxford Handbook of Genocide Studies. Edited by Donald Bloxham & A. Dirk Moses. New York, NY: Oxford University Press, 2010. 675pp.

All Those Like You: Identity Aggression And Student Speech, Ari Ezra Waldman

Articles & Chapters

Online and face-to-face harassment in schools requires a coordinated response from the school, parents, students, and government. In this Article, I address a particular subset of online and face-to-face harassment, or identity-based harassment. Identity-based aggressors highlight a quality intrinsic to someone’s personhood and demean it, deprive it of value, and use it as a weapon. They attack women, racial minorities, religious minorities, and other traditionally victimized groups. And, as such, they attack not only their particular victims but also their victims’ communities. Identity-based aggressors com- mit a constitutional evil not only because their behavior interferes with victims’ access to education, …

Merit And Mobility: A Progressive View Of Class, Culture, And The Law, Lucille A. Jewel

Scholarly Works

Rising income inequality and financial trauma in the middle class beg the question of whether social mobility, long a part of America’s narrative identity, is truly available to Americans residing in the lower rungs of society. This paper addresses the connection between culture and social mobility, looking particularly at how culture impacts social outcomes in America’s meritocratic educational system. Analyzing culture and cultural capital from a progressive perspective, this paper concludes that culture operates subtly, helping some retain or improve their existing position but interfering with the mobility of others. The rhetoric of individual merit, however, obscures the role that …

Medicine And Law As Model Professions: The Heart Of The Matter (And How We Have Missed It), Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure. The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, …

Cross Purposes & Unintended Consequences--Karl Llewellyn, Article 2 And The Limits Of Social Transformation, Danielle K. Hart

Danielle K Hart

Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up reinstantiating those hierarchies. This “preservation through transformation” phenomenon occurs consistently, over time and across legal disciplines. Karl Llewellyn’s efforts at drafting Article 2 of the Uniform Commercial Code are no different. Llewellyn attempted a paradigm shift in contract formation when he sought to decouple contract law from its formalistic roots and bring it back in touch with reality on the ground. But in so doing, the law-in-action strand of Legal Realism ended up working at cross purposes with the other, critical …

Designing Incentives For Inexpert Human Raters, Daniel L. Chen, John J. Horton, Aaron D. Shaw

Faculty Scholarship

The emergence of online labor markets makes it far easier to use individual human raters to evaluate materials for data collection and analysis in the social sciences. In this paper, we report the results of an experiment - conducted in an online labor market - that measured the effectiveness of a collection of social and financial incentive schemes for motivating workers to conduct a qualitative, content analysis task. Overall, workers performed better than chance, but results varied considerably depending on task difficulty. We find that treatment conditions which asked workers to prospectively think about the responses of their peers - …

Edzia Carvalho On Human Rights: Politics And Practice. Edited By Michael Goodhart. New York: Oxford University Press, 2009. 455pp., Edzia Carvalho

Human Rights & Human Welfare

A review of:

Human Rights: Politics and Practice. Edited by Michael Goodhart. New York: Oxford University Press, 2009. 455pp.

The Public-Private Dichotomy In Morality And Law, Larry D. Barnett

Larry D Barnett

The article advances the thesis that the doctrines and concepts of law are attributable to the properties of society and to the forces molding these properties. The thesis, after being illustrated with the federal Investment Advisers Act, is assessed quantitatively using data from the General Social Survey. The Survey interviews a national sample of adults in U.S. households, and in 1991, it ascertained whether interviewees classified morality as a private matter or as a public issue. The social values of interviewees on the public-private nature of morality were the dependent variable in a study that assumed (i) an activity is …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Law and Contemporary Problems

Scott explores the history of surrogacy over the past twenty years. She also offers a historical account of the legal and social issues surrounding surrogacy over the past twenty years. She seeks to explain how and why the social and political meanings of surrogacy have changed over the past decade. Furthermore, she examines how surrogacy was framed as commodification in the Baby M context.

Residential Protectionism And The Legal Mythology Of Home, Stephanie M. Stern

Michigan Law Review

The theory that one's home is a psychologically special form of property has become a cherished principle of property law, cited by legislators and touted extensively in the legal scholarship. Influential scholars, most notably Margaret Radin, have asserted that ongoing control over one's home is necessary for an individual's very personhood and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting individuals in communities of close-knit social ties. Remarkably, the legal academy has accepted these theoretical accounts of the home without demanding a shred of empirical evidence. The misplaced belief in the …

Governing Pluralistic Societies, Tom Tyler

Law and Contemporary Problems

Societies can be held together in many ways. Historically, many groups were linked by a common history, common ethnicity, and common religious and social values. These societies shared a unified set of norms dictating right and wrong. Other groups have been held together by charismatic leaders who present a unifying vision, but modern pluralistic society, uniquely, accepts a diversity of views about what is appropriate and reasonable, which makes these forms of authority difficult to enact. The form of authority emerging in western democratic states has been, instead, authority based upon the processes of government: people recognize democratic procedures as …

Archetypal Energies, The Emergence Of Obama As A Practical Idealist, And Global Transformation, Carroy U. Ferguson

Carroy U "Cuf" Ferguson, Ph.D.

During this time of change, AHP and kindred spirits on the edge have important roles to play. We are the keepers and nurturers of a transformative and evolutionary Vision for Consciousness and a more humane world. At issue is what I will call the “psychic politics” for global transformation, nurtured by practical idealism and the Archetypal Energies. In other writings, I have described Archetypal Energies as Higher Vibrational Energies, operating deep within our individual and collective psyches, which have their own transcendent value, purpose, quality, and “voice”, unique to the individual. We experience them as “creative urges” to move us …

A Sociological Approach To Misappropriation, Elizabeth A. Rowe

Elizabeth A Rowe

This paper is grounded on the premise that sociological analysis can be of great benefit to trade secret law. More specifically, a sociological approach can improve our understanding of the social factors involved in the complex interplay between legal doctrine and compliance. As the first article to apply sociological analysis to trade secret law, this paper uses a group which constitutes the largest segment of the workforce, namely, Generation X and Generation Y (collectively referred to and coined in the Article as “New Generation Employees”) as a case study for analyzing how values and social norms influence compliance with trade …

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …