SOCIOLOGY OF CRIMINAL LAW (CR 450)
Discussion Questions

Below are questions regarding the facts and issues in each of the articles addressed in this class. Presenters and discussants are to address each of these questions for the public presentations of the articles. You are not limited to these questions, but you must address them as part of your discussion. The hypertexts below are listed as they are in your syllabus, and will take you immediately to the questions for your article.

Note: Many of these articles involve empirical social science research. For a good discussion of the logic of this research, consult footnote of the Berk and Loseke article (pp. 49-56). This gives a good overview of the logic of research which might be helpful in interpreting these studies.

Schwartz Article (pp. 171-185)
Friedman Article (pp. 271-278)
Jacob Article (pp. 312-336)
Friedman and Ladinsky Article (pp. 211-232)
Macaulay Article (pp. 337-350)
Archer et al. Article (pp. 422-440)
Ross Article (pp. 444-461)
Tittle and Rowe Article (pp. 465-474)
Horney and Spohn Article (pp. 522-550)
Gusfield Article (pp. 509-522)
Seeburger and Wettick Article (pp. 550-564)
Weitzman Article (pp. 602-626)
Berk and Loseke Article (pp. 28-58)
Blumberg Article (pp. 63-85)
Macauley Article (pp. 837-872)
Sarat and Felstiner Article (pp. 872-902)

1. Describe the two Israeli settlements that Schwartz studied.



2. Specifically, describe the "legal systems" of the two settlements.



3. According to Schwartz, what constitutes "legal" control? What elements must be necessary for there to be legal control? What are some of the examples he uses to illustrate legal control vs. other kinds of social control? (Note: Consult footnote 3, bottom page 182 ff. for a helpful discussion on this.)



4. Why does one of these settlements (Moshav) have a more formally developed legal system and the other (Kvutza) not have such a system? What are the factors that contribute to the more formalized system according to Schwartz?



5. Is it possible to sharply distinguish between legal and non-legal systems? For class discussion, consider the examples in footnote #3 (pp. 183-184). These are all examples from a modern, highly developed legal society. But what about the legal character of these situations? Come up with some similar examples on your own which challenge us in our attempt to make a sharp distinction between legal and non-legal systems.

1. What is the central ideological change that has taken place in American over the past 35 years according to Friedman?

1. In Friedman's view, is this a positive change or a negative change? Do you agree?

1. What are some of the negative consequences of this ideological shift? Be specific with examples.

1. What are some of the positive consequences? Be specific.

1. How has this ideological shift affected legal culture? Be specific.

1. Read carefully footnote #3 (pp. 277-278). Elaborate the meaning of each of the thee notions of "legal culture" or "legal consciousness" depicted here. Which of these three is supported by the Friedman article? Which of the three do you tend to agree with? Why?
   
   
2. What role does technology have to play in legal change? Give specific examples both from the article and from your own observations or outside readings. (Speak especially to what Friedman had to say was the real cause of the breakdown of federalism and states rights).

1. This article actually discusses two "revolutions" in divorce law which were linked: California, and in the nation as a whole. Succinctly describe the changes in each of these jurisdictions. How are they similar and different?



2. Describe the "old" system of divorce law.



3. Describe the broad social and political context within which these changes in approach to divorce took place. Stated differently:
1. What were the problems with the "old" system of divorce law?

1. Describe the nature of the shift that was going on in our understanding of the causes of divorce.
2. Were there other arenas in which the idea of "no fault" was being accepted and perhaps preparing the way for no fault divorce?



1. The no-fault divorce arguably represents one of the most profound and radical changes in family law in all of history, certainly in our time. No longer is there the burden of having to demonstrate "cause" to divorce-a couple can simply by consent tell a judge that they want to dissolve their marriage. Divorce rates have skyrocketed since this shift. Whether all of this is for good or bad is debated, but no one argues that the shift was not profound and radical. Yet, there was virtually no political opposition either in California or nationally! Why was there no opposition?



2. Read carefully footnotes # 1 and 2. These footnotes address a couple of issues worth exploring:
1. They question the extent to which the no-fault divorce laws actually changed the way in which divorces were handled (the law as independent, which we will be taking up in a later section), vs. the extent to which the shift to no-fault simply reflected changes that already occurred (law as dependent-our focus here). Which do you think is the most accurate description. Is it possible that both dynamics are at work? If so, how?
   
2. They raise the disparity between "law in action" and "law on the books." How did the "law in action" under the old system differ from "law on the books?" Were the "law in action" and "law on the books" more congruent after the shift to no-fault divorce? If so, how?

1. Provide a chronology and descriptive history of the development of the workman's compensation system. Include in this overview:
1. A description of the nature of employer-employee responsibility for accidents prior to the fellow-servant rule

1. A description of the fellow servant rule, (including an overview of the case of Priestly v. Fowler)
2. The weakening of the fellow-servant rule, and the ultimate emergence of workmen's compensation statutes.

1. What were the sources of pressure for change which eventually resulted in the emergency of workman's compensation statutes?



2. What were some of the social changes going on at the time that the fellow servant rule was eroding and being replaced by workmen compensation statutes?



3. Friedman and Ladinsky present three theories for the shift to workman's compensation statutes. Describe them. Which one do you think best fits the facts of this area of law?



4. Carefully read footnotes #2,3 and 5 (pp. 228-230). This footnote introduces yet another theory for the change as it quotes Currie, Chambliss, and others--namely "conflict" theory.
1. What is Currie's criticism of Friedman and Ladinsky?
2. What is the general explanation for legal change offered by conflict theory?
3. Do you agree with Currie and the conflict approach or a more "consensus" approach in this case? Explain your position.



5. Carefully read footnote #4. This footnote quotes scholars who suggest that legal change comes about when there is a "legitimacy crisis" in the law-when the law no longer adequately or appropriately addresses social problems or issues. Is such a view more consistent with a "consensus" or a "conflict" paradigm for explaining legal change?

1. Briefly describe the dilemma that local gasoline dealers were facing. How "independent" were they? Why was the control by the big oil companies problematic to them?



2. Describe the legal and political process by which the dealers sought to gain more autonomy.



3. Describe the ultimate statute that was hammered out. Does this bill represent a successful effort on the part of the dealers? Of the major oil companies? Neither or both? Substantiate your response.



4. Study carefully footnotes 1-4 (pp. 349-350). All of these footnotes address the broad issue of whether law represents the "will of the people" or at least a fairly broad consensus, vs. the extent to which it represents powerful interest groups. With this in mind:
1. Respond to the questions in the footnotes as they are relevant to this issue.
2. Does the statute in question represent a broader consensus, or does it represent the interests of powerful interest groups?
3. Can we generalize from this law to other issues in American legal and social life?
4. Provide examples which support the process represented here, and examples which do not support it.
5. What are some of the general ways in which these two groups of examples are different?

1. Briefly summarize the rationales given for the death penalty in the United States.

1. The article notes that deterrence is the only plausible rationale for the death penalty. Do you agree? Why or why not?

1. Provide a brief rationale for the deterrence hypothesis as applied to the death penalty; i.e., why should the death penalty deter homicide?



2. The article identifies four "dimensions" that need to be considered when examining the deterrence of the death penalty (Sections A, B, C and E under Section II, pp., 424-425). Discuss each of these dimensions and explain why they are important considerations for the deterrent effect of the death penalty.



3. Particularly note the dimensions of severity, certainty and celerity.
1. Which of these are the most important aspects of punishment in relation to deterrence?
2. Are there inherent contradictions between these, at least in the case of the death penalty?



4. The authors provide empirical evidence, both from American studies and cross-cultural studies, regarding the deterrent effect of the death penalty. What do they conclude? Do you agree with their conclusions? Why or why not?



5. See footnote 1. It asks why so many people favor the death penalty when it is consistently shown not to deter. Respond to this query. What is the philosophical basis for retaining the death penalty given that the evidence is so strong that it does not deter, possibly even exacerbates the homicide rate?

1. Describe the "Scandinavian-type" laws to which Ross refers. How are they different from the "classical" laws?



2. Theoretically, why should the "Scandinavian-type" laws be more effective?



3. Describe the methodology used in the studies described.



4. Generally, how would you describe the effectiveness of the "Scandinavian-type" laws?
1. Were they more effective in some contexts than others?
2. How permanent was their effectiveness? What accounts for the brevity of their impact?



5. What do these studies suggest about the certainty vs. severity of punishment?



6. How would you account for the difference between the findings in this article, and the findings of the Archer et al. article on capital punishment?



7. Read carefully footnote #2. What policy implications might emerge from these studies? Given that most of these studies took place outside of the United States, do you see any obstacles to establishing such policies in the United States? If so, why?

1. Describe in detail the experimental design of this study? What was it set up to try to test?

1. What is the difference between "moral appeal" and "sanction threat?" When we talk about the law deterring crime, to which of these are we usually referring?

1. What do the authors find with regard to the deterrent effect of "moral appeal" vs. "sanction threat?"

1. The authors note that some students were influenced more than others by the sanction threat. What were the categories of students most dramatically affected? Why is this so?



2. Read carefully footnote #2 (p. 474). With these ideas in mind, explain why the sanction threat seems to have such a dramatic influence in this study on cheating, and the sanction threat of capital punishment (much more severe) does not seem to have an influence on homicide.

1. Describe the major changes in rape laws that have taken place as summarized by Horney and Spohn. What practical impact were these reforms expected to have according to the authors?



2. What are the two specific hypotheses set forth by Horney and Spohn?



3. Describe the methodology used to test these hypotheses. (Be fairly thorough in your description.)



4. Present the results of this study. Do they support the authors' original hypotheses? If so, in what ways?



5. Read carefully footnote #1 and 3 (p. 548). Why is instrumental change so difficult to achieve, according to the authors in their conclusion?



6. Read carefully footnote #4. Logic might dictate (as Horney and Spohn hypothesized) that "incremental changes" in the law should be more effective in producing instrumental change because such legal innovations can be more readily integrated into legal practice than the big changes. Horney and Spohn, however, found that it was the big, comprehensive change jurisdictions that witnessed the most instrumental change. How might you account for this unexpected finding? Can you think of any other areas where such sweeping changes had major instrumental effects? Any examples of where they had little effect?



7. Identify 2 or 3 "lessons" that can be learned about the relationship between legal change and social ("instrumental") change. E.g., can we depend on changes in the law to have an impact on behavior, or on the shape of our social institutions? What are the conditions under which legal change is to have such impact? Etc.

1. Explain what Gusfield means by "instrumental" and "symbolic" functions of law. Distinguish between these two functions with examples.



2. Gusfield focuses on the "symbolic" impact of law. What are the ways in which the law, or changes in the law, may be "symbolic?" Which of these ways does Gusfield say is the primary focus of this study.

1. Briefly describe the four types of "deviant" that Gusfield identifies. How are these types manifest among those who drink? Gusfield omits one of the deviant types in his application to drinking-the "cynical deviant." Can you think of an example of a "cynical drinker?"



2. Gusfield describes a shift that has taken place in how we regard "problem drinkers." How is this shift related to legal change?

1. Read carefully footnote #1 (p. 521). Gusfield is quoted as saying, "Legal affirmation or rejection is thus important in what it symbolizes as well or instead of what it controls. Even if the law was broken, it was clear whose law it was." What does Gusfield mean by this? What symbolic function is being performed here?



2. Read carefully footnote #2. It mentions other (mostly sexual) laws which are scarcely enforced, thereby have little instrumental value. Are they still valuable and important to maintain on the books? Why? What function do they perform? Can you think of any other laws such as this which have symbolic function only?



3. On the basis of what you have read here, do you agree or disagree that the enactment (or maintaining) of laws is valuable even if their function is only symbolic?

1. Describe the Miranda ruling and its demands. (Note: This may require some outside research). What were the intended consequences of this ruling?



2. Given these demands on police officers and departments, what would you expect the unintended consequences of Miranda to be? I.e., how might you expect this Supreme Court ruling to affect the criminal justice system and especially the police in their efforts to enforce the law?



3. Describe the setting and methodology of this study. Give special attention to the variables that are used to measure the impact of Miranda.



4. On the basis of this study, did Miranda have the unintended consequences that you identified as likely in Q. 2? Discuss this with regard to each of the variables measured.



5. Read carefully footnote #2 (pp. 563-564). Clearly, Miranda was harshly attacked and fears were raised about the untoward consequences of this act. Do the results of the Pittsburgh study lend substance to these fears, or fail to confirm them?



6. Read carefully footnote #3. On balance, would you say that Miranda has been, on balance, a positive or negative decision for the cause of justice in the United States?

1. What is meant by "no fault" divorce laws? How are these different from traditional divorce laws?

1. What were the intended consequences of California's no fault divorce laws?

1. Describe the unintended consequences of the shift to no-fault divorce in California, according to Weitzman.

1. What are the various forms of property that are subject to distribution in a divorce. Which of these is the most problematic, according to Weitzman?

1. Weitzman distinguishes between "equal" division of property and "equitable" distribution.
1. What is the difference between these two concepts?
2. What are the three problems that Weitzman identifies with California's "equal" division rule?



2. As part of her solution to the problems with equal distribution, Weitzman proposes a concept she calls "equality of results." How and why is this more equitable than the current laws?



3. Another part of her solution is expanding the concept of property. What does Weitzman propose as a new form of "property." What is her rationale? Do you agree or disagree?



4. Read carefully footnotes #6 and 7. Based on Weitzman's findings what legal or policy changes might you suggest in America's divorce laws?

1. In order to acquaint you with the logic of social research, read footnote #1 (pp. 49-56). This is a rather long footnote, but clarifies the logic of this sort of investigation.



2. What are the goals of this study? That is, what "question" is the study trying to answer?



3. Describe the "variables" used in this study.
1. Be sure to distinguish between "dependent", "independent" and "control" variables.
2. Provide a rationale for why each of these variables are used.



4. Describe other pertinent features of the methodology used, such as the sample size, statistical procedures, etc.



5. What are the "findings" of this study? Describe the findings for each of the variables used.



6. On the basis of this study, would you say that the decision to arrest is based mostly on "legal" (legally relevant) factors, or "extra-legal" (legally irrelevant) factors? (An example of a "legal" factor, for example, might be the use of a deadly weapon-the law prescribes more seriousness to such a crime; an "extra-legal" factor might be the race of the offender-the law does not allow for special treatment of certain races).
1. What variables are "legal?"
2. Which ones are "extra-legal?"



7. Do you agree with the authors when they say that "when police arrive at the scene of a domestic disturbance, theyhave to construct a 'story' of what has happened....The officer's interpretation of salient 'signs' in the context of the immediate situation leads to the construction of a 'theory of events, and prediction of the likely results of potential choices. The evidence suggests that police management of domestic disturbances and components critical to decision making do not necessarily center on the collection of evidence for "proof" that laws have been violated." (P. 47).
1. What do the authors mean by this statement?
2. If this statement is true, what does it suggest about the "legal" vs. "extra-legal" considerations in whether or not to make an arrest?



8. Read carefully footnote #8 (p. 58). Do you think this model of police decision-making applies to other types of crimes where the police must make a decision to arrest? Explain your answer.

1. Describe what Blumberg means when he says that the practice of law is like a "confidence game."



2. How/why does the organization of the court itself contribute to this confidence game?



3. How does the criminal defense lawyer go about playing the role of a "con man?"



4. What is plea bargaining?



5. Do you agree that encouraging one's client to plead guilty is necessarily a confidence game?



6. Friedman uses this article to raise the issue of the ethics of plea bargaining (see especially footnote #4, pp. 81-82). Consider the objections raised in footnote #4 in the context of the Blumberg article.
1. Can you defend plea bargaining as a practice against these objections?
2. Can you identify still other objections to plea bargaining?



7. While this article is certainly about plea bargaining, there is a broader focus here as well, namely the question, "How does our justice system really work as opposed to how it says it works. (This is the focus of legal realism.) How does Blumberg's article contribute to this discussion?
1. How is our justice system supposed to work when it comes to lawyers servicing their clients?
2. How do Blumberg's observations correspond with this ideal image?



8. On the basis of Blumberg's observations, what "extra-legal" factors do you think might be operative when it comes to getting the best possible representation from one's criminal defense attorney? Be creative here.

1. This article attempts to empirically compare and contrast the "ideal" image of the legal profession with the empirical reality of what lawyers actually do in one specific area of law-consumer protection law. With this as its goal, what "school" of jurisprudence that we discussed at the beginning of class does this article reflect?



2. What is the "classical model" of legal practice? Describe the various components or aspects of the classical model.



3. Identify the ways in which the reality of legal practice as described by Macaulay correspond or depart from this model:
1. When working with individuals
2. When working with businesses



4. Read carefully footnote #1 (p. 870). Macaulay has described in this chapter something of the process that consumer protection lawyers engage in, much of which goes beyond technical legal work (see question 6 below). Are there analogies to this process in the practice of criminal law? Be specific.



5. Read carefully footnote #2 (pp. 870-871). Do you agree with the statement that lawyers are not simply agents of their clients? Are their ethical dilemmas posed when lawyers do not act strictly as agents for their clients?



6. Read carefully footnote #3 (p. 871). Macaulay notes in this chapter that lawyers are frequently asked to engage in activity for which they are not trained (mediation, conciliation, etc.) If this is so, what recommendations might you make to law schools to more adequately train lawyers? E.g., what courses might you propose? What pedagogies might you suggest?

1. What is (are) the role(s) of the lawyer in divorce situations according to this article? While different in the specifics, are there common themes that the roles of a divorce lawyer share with those of a criminal attorney?



2. At the outset of this article, the authors suggest that they are interested in the picture of the legal process that the lawyer presents to a client-"Does he subscribe to the formalist image or does he present the kind of picture that would be drawn by a legal realist...?"
1. What would be the picture that a "legal formalist" would present regarding the legal aspects of divorce and the role of a divorce lawyer?
2. What would be the picture that a "legal realist" might present?
3. Which image is presented here? How so?



3. What are some of the "extra-legal" problems that a divorce lawyer encounters? How might these compare with the "extralegal" problems of a criminal defense attorney?



4. The image that Sarat and Felstiner present of the divorce lawyer's office is, in many ways, that of an arena within which negotiation takes place. The client has preconceptions and an agenda which she brings to her lawyer. Her lawyer also has an agenda which may be different, even contradictory to that of his client's. It is within the confines of the lawyer's office that these differences of preconceptions and agendas are negotiated.
1. What are the preconceptions and agendas of the client presented in this article? Do you agree with this representation of a client's interests?
2. What is the agenda of the divorce lawyer?
3. Describe the process of negotiation that takes place.



5. Imagine the criminal lawyer's office as an arena for negotiation. Based on what you know and what we have discussed so far:
1. What might be the preconceptions and agendas that a client might bring?

1. What is the lawyer's agenda?

1. Describe the process of negotiation that might take place here.

1. How might this arena of negotiation differ from that of the divorce lawyer? How is it similar?