Oxford Socio-Legal Studies – serie

Drawing extensively on empirical studies from the US, UK, Australia, and New Zealand, John Braithwaite and Ian Ayres offer an well-argued addition to the comparative literature on government regulation. In an effort to transcend the ongoing debate between those who favour strong state regulation and those who call for deregulation, they argue that regulation does not have to proceed with an adversarial tone, nor does it have to be `soft' or `hard' to be effective.

This book transcends current debate on government regulation by lucidly outlining how regulations can be a fruitful combination of persuasion and sanctions. The regulation of business by the United States government is often ineffective despite being more adversarial in tone than in other nations. The authors draw on both empirical studies of regulation from around the world and modern game theory to illustrate innovative solutions to this problem. Their ideas include an argument for the empowerment of private and public interest groups in the regulatory process and a provocative discussion of how the government can support and encourage industry self-regulation.

This book examines the origins of the controversial practice of plea bargaining, a procedure that appears to reward the guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, this study shows that the practice emerged early in the American Republic. It argues that plea bargaining should be seen as part of a larger repertoire of techniques in the Anglo-American legal tradition through which law might be used as a vehicle of rule.

This book examines the origins of the controversial practice of plea bargaining, a procedure that appears to reward the guilty. Contrary to popular perception of plea bargainingas as an innovation or corruption of the post-World War II years, this study shows the practice to have emerged early in the American Republic. Vogel argues that plea bargaining arose in the 1830's as part of a process of political stabilization and an effort to legitimate the democratic institutions of self-rule that were crucial to Whig efforts to reconsolidate the political power of Boston's social and economic elite. At this time local political institutions were spare and fragmentary, and the courts, she argues, stepped forward as agents of the state to promote social order. Plea bargaining drew conflicts into the courts while maintaining elite discretion over sentencing policy. She argues that plea bargaining should be seen as part of a larger repertoire of techniques in the Anglo-American legal tradition through which law might be used as a vehicle of rule. In this context, plea bargaining provided a unique match between the needs of elites to maximize flexibility in criminal sanction and an emerging liberal ideology.

Why do some lawyers devote themselves to a given social movement or political cause? How are such deeds of individual commitment and personal belief justly executed, given the ideals of disinterested professional service to which lawyers are (in theory, at least) supposed to adhere? What can we learn from such lawyers about the relationship between law and politics? Cause Lawyering is a wise and varied collection of responses to these questions, featuring a number of distinguished legal scholars concerned with anti-poverty lawyers, lawyers who work against capital punishment, immigration lawyers, and other lawyers working to end oppression. Editors Austin Sarat and Stuart Scheingold have assembled here a valuable cross-national portrait of lawyers compelled to sacrifice financial gain so as to use their legal skills in the promotion of a more just society. These telling and important essays fully explore the relationship between cause lawyering and the organized legal professions of many different countries-the US, England, South Africa, Israel, Cuba, and so forth.They describe the utility of law as a resource in political struggles and, conversely, highlight the constraints under which lawyers necessarily operate when they turn to politics. Some provide broad theoretical overviews; others present rich case studies. Advancing a fundamental argument about the very nature of the legal profession, this book explains the strategies that cause lawyers deploy, as well as the challenges they face in trying to be legally astute and effective while remaining politically devoted and aware. Although it is a controversial way of practicing law, cause lawyering, as explicated in the essays in this volume, is indeed indispensable to the legitimization of professional authority.

Sarat and Scheingold's book, Cause Lawyering, the first volume of its kind, coined the term for law as practiced by the politically motivated and those devoted to moral activism. The new collection examines cause lawyering in the global context, exploring the ways in which it is influencing and being influenced by the disaggregation of state power associated with democratization, and how democratization empowers lawyers who want to effect change. New configurations of state power create opportunities for altering the political and social status quo. Cause lawyers are developing transnational networks to exploit these global opportunities, and to help strengthen international norms on issues such as human rights. The fifteen essays will focus on different national settings including South Africa, Israel, the U.K. and Latin America.

Three quarters of the British population gamble (mainly on the National Lottery), and they generate around 46 billion pounds a year. This volume sets recent developments in the regulation and deregulation of its three primary forms - betting, gaming, and lotteries - against an account of their social and legal history. Many of the concerns that excite controversy today are little different from those with which the Home Office grappled for most of the nineteenth and twentieth centuries. Based upon Home Office files and contemporary accounts, this book begins by evaluating how the law was used to control and suppress popular gambling. Miers shows how and why prohibition gave way to the recognition that regulation offered a more effective method of controlling a social pastime that, by the mid-twentieth century, had become a feature of everyday life. Concerns over gambling have recently resurfaced, as a result of Government proposals to replace the existing strict controls with a regulatory regime that will give greater scope for licensees to adopt more competitive practices. Like the introduction of the National Lottery in 1994, these proposals represent a marked departure from the traditional response: to permit but not to stimulate commercial gambling. The potential for expansion in opportunities to gamble raises concerns about the accessibility of gambling to children and the possibility of increased numbers of problem gamblers. Miers examines the implementation and impact of the present law governing gaming and the National Lottery in terms of regulation and the enforcement of regulatory regimes. He focusses on how these regimes regulate the probity of the supplier, the supply of gambling opportunities, the nature of the transaction, and the player's participation. The book concludes with an evaluation of the Gambling Bill, a draft of which was published in 2003 aiming to give effect to the Government's proposals.

This book examines the phenomenon of reservation of title clauses in commercial contracts and looks at the impact of these clauses upon the transactions of which they form a part. With the aid of data gathered from a field survey it also examines the impact of these clauses in situations of insolvency and the strategies employed by insolvency practitioners to counteract their effect.This subject is of increasing interest and importance for legal teaching and research and the book meets the demand for an integrated, readable study of insolvency practice.

This book considers whether or not the General Medical Council's professional conduct jurisdiction acts fairly and justly when dealing both with doctors whose conduct it controls, and members of the public whose interests it was established to protect. By looking at the legal history of the Council since its inception in 1858 until the present, it is possible to see how the system of medical discipline in Britain developed, to reveal its present anomalies and problems, and to see how best to improve the system, if, indeed, such a system is worthy of preservation. Questions such as the role of lay members on the Council, the use of lawyers and Legal Assessors in hearings, how medical issues are resolved and standards of conduct set for the profession, are all considered. Over 2000 disciplinary cases are then surveyed in terms of the type of allegations made, what sort of doctors are involved, and how they are dealt with. Detailed suggestions are finally made for improving the system.

The family has become a political battleground in both East and West. In the West, interventionist policies designed to encourage equality of opportunity and to eliminate the problems encountered by disadvantaged members of the traditional family (usually women, children and the elderly) have been replaced by a fresh quest for individual freedom from interference by the State. Once again inequality of economic power is determining decisions such as whether or if at all to seek divorce or abortion in situations where previously the State regulated by means of offering economic support. The process of 'rolling-back' the influence of the State has been dubbed 'privatisation' of the family, and the consequences of this shift by the State are here examined in considerable detail by a group of experts. The same examination of family in the East throws up similar terminology ('privatisation' for instance appears frequently) but the motivating forces and processes are intriguingly different. In the East concern to retain welfare provision, to reject the past, and to reflect national values without reducing individual liberty now requires a balancing act of extreme delicacy. State withdrawal from the family, leaving the family as a private sphere seems to be accompanied by a new emphasis on fundamental religious roles, which tend to stress differences between gender roles and to limit access to divorce or abortion in order to strengthen the 'traditional' family. The authors of this book examine this evolutionary process and ask what can be found of value in the exaggerated collectivism of the former communist regimes.

"David Downes' fascinating comparative analysis takes us a great deal nearer to an understanding of the roots and strength of reductionism in the Netherlands...... powerful and scholarly enquiry" New Statesman and Society"Contrasts in Tolerance is expertly crafted and beautifully written. Professor Downes pinpoints the crucial theoretical issues regarding sentencing, imprisonment, and decarceration and uses original and rich data that addresses these issues in the Netherlands and in England. In persuasively demonstrating real effects of specific penal policies. Professor Downes is able to address real possibilites for specific penal change. Contrasts in Tolerance is ambitious, creative, and a model in comparative empirical scholarship. As such it will prove to be a significant and lasting contribution to several fields, including Criminology, Social Policy, Political Science, and Sociology" Richard V Ericson, University of Toronto.

The Issue of how assets are distributed after death is of increasing significance for larger numbers of people. In this original and path-breaking study, the authors examine the principle means through which people plan to dispose of their assets after death: by the use of wills. By offering an empirical study of 800 English wills, the book identifies significant patterns of bequeathing among a cross-section of the population, and not just among those sections of society who enjoy substantial wealth. This leads us to focus upon what wills tell us about the family and kin relationships, and upon how people transmit their assets across generations: to their families and to institutions and organizations.

The Social World of an English Crown Court is the first ethnographic study of a Crown Court Centre. It also describes the origins and early history of a pioneering project to support victims and prosecution witnesses appearing before the court–the Witness Support Project. Paul Rock analyses the major divide which exists in the life of the court between professional insiders and public outsiders. He describes how this divide created problems for witnesses and how the project set out to alleviate this. He provides details of how this division is built into court architecture, administration, and social relations, and examines how it stems from the preoccupation of court officials with the control of knowledge, public order, and emotion.

The size of Britain's homeless population has risen considerably since the introduction of the Housing (Homeless) Persons Act 1977. Recently, the Government announced plans radically to reform the existing legislation, a recognition of the political sensitivity of homelessness and the need for a coherent policy to tackle the problem.Housing the homeless is an issue which embraces housing, family and social security policy; it has also generated considerable interest for public lawyers, as the scope of discretionary powers provided by the Act has provoked a great deal of litigation in the High Court.In the original study the author presents a detailed empirical study of three local authorities implementation of the homelessness legislation. He focuses in particular on the processes of administrative decision-making at the lowest level, and reveals that `law' plays a very limited role in shaping administrative policy decisions. Placing law within a context of administrative action, the author illustrates how administrative law must be understood by reference to the complex institutional structures with which it is daily involved.

Discretion is a pervasive phenomenon in legal systems. It is of concern to lawyers because it can be a force for justice or injustice: at once a means of advancing the broad purposes of law and of subventing them. For social scientists the discretion exercised by legal actors is an important form of decision-making behaviour, in which legal rules are merely one force in a field of pressures and constraints that push towards certain courses of action or inaction. This book presents a variety of analyses of legal discretion by lawyers and social scientists (drawn from both sides of the Atlantic), who have made discretion and its uses a central part of their scholarly concerns.

Toward the end of the twentieth century, English lawyers enjoyed widespread respect and prosperity. They had survived criticism by practitioners and academics and a Royal Commission enquiry, but the final decade witnessed profound changes. First the Conservatives sought to apply laissez-faire principles to the profession. Then Labour transformed the legal aid scheme it had created half a century earlier. At the same time, the profession confronted cumulative changes in higher education and women's aspirations, internal and external competition, and dramatic fluctuations in demand. This book analyses the politics of professionalism during that tumultuous decade, the struggles among individual producers (barristers, solicitors, foreign lawyers, accountants) their associations, consumers (individual and corporate, public and private) and the state to shape the market for legal services by deploying economic, political and rhetorical resources (including changing conceptions of professionalism).The profession had to respond to a greatly increased production of law graduates and the desire of lawyer mothers (and also fathers) to raise their families. It had to replace exclusivity with efforts to reflect the larger society (class, race, gender). The Bar needed to address challenges to its exclusive rights of audience from both solicitors and employed barristers and decide whether to retaliate by permitting direct access, thereby compromising its claim to be a consulting profession. Solicitors had to reconcile their invocation of market principles against the Bar with their resistance to corporate conveyancing and multidisciplinary practices. Government had to restrain a demand-led legal aid scheme; practitioners and their associations sought to pressure the government to expand eligibility and raise remuneration rates.Divisions within both branches so compromised self-regulation and governance that the government even threatened to deprive lawyers of those essential elements of professionalism. These challenges have begun a transformation of the legal profession that will shape its evolution throughout the twenty-first century.

Toward the end of the twentieth century, English lawyers enjoyed widespread respect and prosperity. They had survived criticism by practitioners and academics and a Royal Commission enquiry, but the final decade witnessed profound changes. First the Conservatives sought to apply laissez-faire principles to the profession. Then Labour transformed the legal aid scheme it had created half a century earlier. At the same time, the profession confronted cumulative changes in higher education and women's aspirations, internal and external competition, and dramatic fluctuations in demand. This book analyses the politics of professionalism during that tumultuous decade, the struggles among individual producers (barristers, solicitors, foreign lawyers, accountants) their associations, consumers (individual and corporate, public and private) and the state to shape the market for legal services by deploying economic, political and rhetorical resources (including changing conceptions of professionalism).The profession had to respond to a greatly increased production of law graduates and the desire of lawyer mothers (and also fathers) to raise their families. It had to replace exclusivity with efforts to reflect the larger society (class, race, gender). The Bar needed to address challenges to its exclusive rights of audience from both solicitors and employed barristers and decide whether to retaliate by permitting direct access, thereby compromising its claim to be a consulting profession. Solicitors had to reconcile their invocation of market principles against the Bar with their resistance to corporate conveyancing and multidisciplinary practices. Government had to restrain a demand-led legal aid scheme; practitioners and their associations sought to pressure the government to expand eligibility and raise remuneration rates.Divisions within both branches so compromised self-regulation and governance that the government even threatened to deprive lawyers of those essential elements of professionalism. These challenges have begun a transformation of the legal profession that will shape its evolution throughout the twenty-first century.

Modern systems theory provides a new paradigm for the analysis of society. In this volume, Niklas Luhmann, its leading exponent, explores its implications for our understanding of law. Luhmann argues that current thinking about how law operates within a modern society is seriously deficient. In this volume he lays out the theoretical and methodological tools that, he argues, can advance our understanding of contemporary society and, in particular, of the identity, performance, and function of the legal system within that society. In systems theory, society is its communications: they are its empirical reality; the items that can be observed and studied. Systems theory identifies how communications operate within a physical world and how different sub-systems of communication operate alongside each other.In this volume, Luhmann uses systems theory to address a question central to legal theory: what differentiates law from other parts of society? However, unlike conventional legal theory, this volume seeks to provide an answer in terms of a general social theory: a methodology that answers this question in a manner applicable not only to law, but also to all the other complex and highly differentiated systems within modern society, such as politics, the economy, religion, the media, and education. This truly sociological approach offers profound insights into the relationships between law and all of these other social systems.

In contrast to other theories of legal professions, which neglect politics, this volume advances a political theory of lawyers' collective action by demonstrating lawyers' influence on the emergence and development of western political liberalism. Four sociologists and four historians show how layers, over several centuries, have been variously committed to the building of liberal political society in France, Germany, Great Britain, and the United States.The introductory chapters, written by the editors, present a theoretical argument that integrates the historical and comparative studies of lawyers' engagement in three areas of liberal politics: the constitution of the moderate state, the institutions of civil society, and the constitution of individual rights. The editors conclude the book with an essay on lawyers' historical involvements in political globalization.This fresh interpretation not only demonstrates the variety of relationships between lawyers and politics, but it delineates issues, concepts, and a theory that helps understand the current action of lawyers in new democracies.

Julia Black's book is the first authoritative study of rulemaking in one of the most important areas of economic life: financial services. The books has three main aims: first, to build a jurisprudential and linguistic analysis of rules and interpretation, drawing out the implication of these analyses and developing quality proposals for how rules could be used as instruments of regulation. Second, it interprets that analysis and set of proposals with an empirical study of the formation and use of rules in a particular regulatory system: financial services, and third, it evaluates the nature of the rulemaking process. The author's main case study, examining the use of self-regulation in the financial services sector, complements the detailed analysis of rule formation and uses. The book will be an invaluable addition to the libararies of all administrative lawyers and anyone with an interest in the provision and regulation of financial services.

This book is the first major study of an increasingly evident legal and social problem: spouses and partners (particularly wives) who provide third party loan security for the business liabilities of their other spouse or partner. Unlike other texts in this field, Fehlberg specifically considers the legal rules which apply to surety wives in England, with reference to other Commonwealth jurisdictions, particularly Canada and Australia. The law is then considered in the context of sociological literature relevant to surety experience. The particular uniqueness of this book is that legal and sociological literature are then tested against empirical research involving interviews with sureties, and other main parties involved in surety transactions. Significantly the latter underlines the discrepancy between the 'public' legal perspective on providing security and 'private' complex experiences and motivations which pertain within intimate relationships. Given this situation, the author considers various legal reforms which could improve the position of sureties, but emphasises that the ultimate solution for sureties involves more fundamental social change.

Regulation touches upon areas of vital importance to our lives and the economy, but it is still very much a 'grey area' of criminal law and social control, subject to very little academic scrutiny. This book combines an analysis of the broader structural factors which influence regulation and its definition at the everyday level with a discussion of empirical data, to reach a thorough understanding of the subject. The empirical data focuses on the regulation of economic activities in the areas of occupational health and safety and the environment in England and Wales in the 1980s.

The way that small claims are dealt with has prompted enormous interest in many jurisdictions, yet the subject has been neglected by researchers in this country. We should not doubt the importance of these procedures, however. It is increasingly seen as a convenient expedient in tackling the crisis in civil justice, and with a massive increase in the small claims limit from £1,000 to £3,000 in January 1996, small claims have suddenly become big judicial business. This book (based on research conducted over a two-year period and funded by the Lord Chancellor's Department, the Office of Fair Trading and the Economic and Social Research Council) presents the most extensive empirical research analysis of small claims procedures ever undertaken in this country. The theoretical and practical implications of moves to expand the scope of 'Do-it-yourself' justice are explored. The author had privileged access to the district court judges who conduct claim hearings, and the book is the first to include lengthy extracts from tape recorded interviews with them. It also includes discussion of interviews with litigants, including many who struggled to gain payment of court judgments.

This book examines how governmental and regulatory activities are carried out by `soft laws' in the form of codes, regulations, directives and other non-statutory rules. Key questions considered are: When should government or regulation be structured according to soft law rules? What are the alternatives to rules? What is a `good' governmental or regulatory process?The design of rules as well as their enforcement is investigated and a case study throws light on the techniques regulators may use to secure compliance. The connection between securing compliance and achieving the right results is then focused on and issues of inclusiveness, standard-setting and `creative compliance' are discussed.The potential of cost benefit analysis as a means of testing rules is evaluated and the European context, within which regulatory and governmental rules operate is considered in an extended discussion of `Euro-rules'.Rules and Government concludes by reviewing the alternatives to rules, considering the potential of `light touch' regulatory styles that do not stress commands and suggests how the legitimacy of governmental and regulatory process can be maximised.Rules and Government is essential reading for lawyers, political scientists, economists and those of all disciplines who are concerned with:* Regulation: its design, operation and enforcement* Choices of regulatory strategy* Issues of compliance* Governmental policy-making processes* Legislation and its techniques* Public law or the law of regulated sectors* Economic appraisals and regulation* Standard - setting and rule selection* The Europeanisation of regulation and government* The drift to `government by circular'* Due process in government* The control of discretionThe book is of relevance not merely to academics but also to:* Practitioners and advisers in regulated sectors* Civil Servants and those in firms who respond daily to rules and regulationsPolicy-makers in government departments and agencies* Legislators and rule-makers.

Law's Community offers a distinctive analysis of law, identifying political and moral problems that are fundamental to contemporary legal theory. It portrays contemporary law as institutionalized doctrine, emphasizing ways in which legal modes of thought influence wider currents of understanding and belief in contemporary Western societies. Exploring relationships between law and sociology as contrasting and competing fields of knowledge, Law's Community develops ideas from social theory to identify key problems for legal development; in particular, those of restoring moral authority to law and of elaborating a concept of community that can guide legal regulation. The analysis leads to radical conclusions: among them, that law's functions need reconsideration at the most general level, that a unitary state legal system as portrayed in traditional kinds of legal theory may no longer be adequate in complex contemporary societies, and that law should be reconceptualized as a diverse but co-ordinated plurality of systems, sites, and forms of regulation.

This book looks critically at some of the underlying assumptions which shape our current understanding of the role and purpose of law and society. It focuses on adjudication as a social practice and as a set of governmental techniques. From this vantage point, it explores how the relationship between law, government and society has changed in the course of history in significant ways. At the centre of the argument is the elaboration of the notion of `adjudicative government'. From this perspective it is argued that the relationship between law and society must be conceived in a different way in the era of economics, sociology and statistics. The impact of these disciplines both constitutes `modernity' and unfolds a different role for law. The author argues that the traditional vision of the role of law, rooted in a complex set of hierarchical assumptions, is no longer adequate.

Combining philosophical pargmatism with a methodological foundation, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in a clear and concise fashion while articulating a social theory of law which draws equally from legal theory and socio-legal theory.

Drawing from experience internationally, on recent and important developments in regulatory theory, and upon models and approaches constructed during the author's empirical research, this book addresses the question: how can law influence the internal self-regulation of organisations in order to make them more responsive to occupational health and safety concerns? In this context, it is argued that Occupational Health and Safety management systems have the potential to stimulate models of self-organisation within firms in such a way as to make them self-reflective and to encourage informal self-critical reflection about their occupational health and safety performance. This book argues for a two track system of regulation under which enterprises are offered a choice between a continuation of traditional forms of regulation and the adoption of a safety management system-based approach on the other. The book concludes with a discussion of the use of criminal and administrative sanctions to provide organisations with incentives to adopt effective Occupational Health and Safety management systems. The book proposes a wider range of criminal sanctions and sentencing guidelines to ensure employers receive sentencing discounts where they have introduced effective management systems.

Just Lawyers proposes a model for the regulation and organization of lawyers, guided by an ideal of access to justice. It is grounded in empirical analysis of why people complain about lawyers, the nature of existing legal institutions, and the ethical ideals of the profession.Parker weaves the normative theory of deliberative democracy with the empirical law and society tradition of research on the limits and possibilities of law. She shows that access to justice can only occur in the interaction between courtroom justice, informal everyday justice, and social movement politics. Lawyers' justice should educate people's justice to improve the justice quality of everyday relationships and transactions, while community concerns (including community access to justice concerns) should reshape lawyers' regulation, organization, and practices to improve substantive justice. Just Lawyers shows how legal proffesionalism can only be revitalized through the reform of access to justice beyond lawyers.