O'Barr's Lay Expectations

O'Barr's article Lay Expectations of the Civil Justice System interviewed nineteen plaintiffs in litigation cases processed in Denver during the summer of 1986, about their experience with and satisfaction derived from their dealings with the small claims court. The first plaintiff interviewed is Edward Atkin, whose motorcycle was damaged by a drunk woman and to whom was only paid part of the cost of repair for the bike. During his interview, Atkin had prepared his testimony or that of his witnesses; he seemed confident that the truth would see him through. Another case involved Mr. and Mrs. Winner, a couple who loaned $390 to old friends, who then defaulted on the loan. Though the Winners, uh, won their case and were awarded $400, the couple seemed dissatisfied with the system because they had hoped for some greater punishment to their old friends and were apparently unhappy that the small claims court could not inflict the kind of punishment (public humiliation and perhaps a greater monetary reward) that they expected. In the last case presented, James Parker is a man who owed his landlord $35 and was prompted tossed out, with his possessions seized. After two weeks of living on the street, he set in motion a suit against the landlord. When he was interviewed, Parker was unsure about the procedures of the case but seemed unconcerned about his case, or his landlord’s own case; like Atkin, he maintained certainty that the facts would come to light, and that he would be proved right. A theme in these stories is that people attributed greater power to the court than it actually possesses; also, plaintiffs seemed ignorant of the adversarial nature of the system, and did not anticipate any strong or convincing argument from their defendants. Rather, they believed that the truth would come out and that the plaintiffs would prevail.

What interests me is that both themes speak of a deep trust of the law and equating it to truth. Despite their litigious suits, these plaintiffs are not “with the law,” because they believe in the rightness of it and consider it more seriously than one attributes to a game. They are probably “before the law,” because they seem engaged in the idea of truth and justice – and they believe that the law will bring them that. Whether they got this message from the ever-popular (and cited by interviewees in the article) People’s Court television show, or have learned to trust the legal system, it is clear that the plaintiffs expect justice, and they equate that with the truth. Unfortunately, further dealings with the legal system may not always yield such optimism – or so we’ve read.

Macaulay's Law in Everyday Life

Macaulay's article Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports investigates three arenas in which people learn about law. In school, students read about textbooks ambiguous in their content, spouting legal jargon (the Executive, Judicial, and Legislative branches) while using euphemisms to illustrate some of America’s less than lawful and what some would consider immoral actions since its inception, including (but not limited to) the eviction of Native Americans, several hundred years of slavery, Japanese internment during World War II, and other slights. Macaulay shows the contradictory nature of school in teaching law, because it tells what the law is and how America has negotiated breaking it. Entertainment talks of the media and its effect on people’s ideas of law. This includes cop and lawyer shows. The shows talk about law as a tool for justice, but often, lawyers make deals or even defend guilty clients, indicating that the law is bendable to those who know how. Here is another contradictory media outlet for people on what law is. Lastly, Macaulay cites sports. That is, there are rules in sports that are made to ensure a fair game is played. How many times, though, has a sports fan complained that his/her favorite team lost because the referee made a bad call (which is blamed on the referee’s corruption or apparent “blindness,” according to the distraught fan)? The rules are in place to ensure the game is played properly, but when people make the calls that win or lose games, spectators may not care about the rules, as long as their team gets the win. It’s important to note that, as in the other two subjects, sports are described as an arena in which rules are valued but are also seen as bendable or breakable, if they can elicit a preferred outcome.

This article made me think about what people actually value in American society. In Ewick and Sibley, people in the “with the law” category saw the law as a game to be played, in order to beget a desired outcome. While the respondents who were listed with this label seemed not to have too much power in ensuring a favorable outcome, it seems that the three categories above are making believers of Americans and creating more people who are “with the law.” After all, football is a game that people play, and if your team wins because of what might be deemed a bad call, who cares? Your team still won. It’s interesting to note that people who seem to believe in the law don’t care too much about rules and regulations, as long as it suits their needs. Certainly the Macaulay article made me think as such, and I cannot form a good argument for why this is not so. In fact, it seems pretty eerily accurate.

Nielsen's article on "Ordinary" Citizens, Street Harassment

Nielsen's article Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment is a study conducted on 100 people in the California area about their experience with street harassment – sexually-suggestive comments, race-related comments, begging – and their beliefs regarding the law, including if it should involve itself in the practice. The author explains four reasons that respondents give for not believing that the law should limit street harassment: the First Amendment, autonomy, impracticality, and distrust of authority. The First Amendment means that people believe that freedom of speech includes harassment and that they are not willing to give up this freedom in order to avoid the harassment. Autonomy means that people – especially women – want equality and believe that involving the law with this issue means admitting that they are not equipped to deal with it. Rather, this is considered a personal issue to some respondents, and they feel that individuals should handle it, rather than involving the law. Impracticality means that the interviewees do not think it would be possible or rational to punish every single person who commits street harassment for their misdeed; in fact, many in our class who blogged last week talked about how the legal processes took enough time already, so adding this issue might further slow down the system. Lastly, some respondents admitted to distrusting the authority, or cynicism about the law in general. This means that it is believed that invoking the law will either cannot really help, or it will end up causing more damage to the person it intended to help.

This article interested me because the numbers were fascinating. From a racial standpoint, 4 percent of whites named distrust of authority as their reason for opposing legal regulation of offensive speech, compared to 28 percent of people of color. 80 percent of white men listed the First Amendment for their primary reason for opposing legal regulation, while 56 percent of African-American men named distrust of authority. While Nielsen indicates that there are racial, gender, and class lines that affect people’s experiences and opinions of street harassment, the numbers only further whet my appetite. Is this distrust of authority simply based on race, one’s experience with street harassment, or the combination? 28 percent of women listed autonomy as their primary reason for opposing regulation, compared to 3 percent of men. Again, it becomes obvious that gender plays a role in people’s experiences with and opinions on street harassment. I think it would be interesting to test, if possible, if race or gender is more an indicator of people’s experiences with and opinions on street harassment. The study overall opened a lot of spaces in my mind about gender and race, as well as what people will accept, due to the inequalities they likely experience within society, and how they deal with it.

Ewick and Sibley.

One purpose of the book was to explain the difference in perspectives that people have about the law. The first – “before the law” – is that the law is a grand system that is more or less distant from the lives of regular people. The second – “with the law” – is that the law is actually a game to be played and maneuvered for one’s benefit, or to one’s detriment. The third point of view – “against the law” – is that the law is a source of power that people are either use to further their interests, or find themselves helpless in the face of. The authors compare these perspectives in order to analyze the relationships that “ordinary” people experience with the law.

One point of interest for this writer was the helplessness and impotence felt by many in the face of the legal system, expressed in this book. Is it learned, then, that people have no power and thus must accept the judgments and slights dealt out by the law? Or, through their own inequality within society (many were described as poor or of minority status), do people come to feel incapable of successfully navigating the system? Does having money, power, or racial/class status procure one’s legal victory, or is everyone being subjected to the same rules? In Millie Simpson’s case, she was not given a public defender until after her judgment had been dealt; this was the only instance that I recall of this sort in the book. Would this have happened to an educated person? A white person? A person of greater economic class? Or would the court have recognized the inadvisability of trying to withhold rights from someone who either knows better or has the power to object to such treatment?

Another point of interest was the fact that this study took place in New Jersey. How much would the results differ in, say, Texas? Would people feel a greater affinity to or disdain for the legal system? Would those interviewed have had greater success steering through legal waters? Furthermore, what is the greatest determinant of legal injustice or mistreatment – class, race, age, sex? Many of those interviewed were above the age of thirty; would the younger generation have reacted differently, recounted stories with varying ideas than those presented in this book?

Gender, Race, Social Class, and the Law.

The Grana, et al., article discusses the social variables of gender, race, and social class, in regard to the law. Specifically, examples of laws enacted due to these variables are described. Women’s rights in regard to paid labor, property, sexual harassment, and rape have changed over time, due to historical and social context; the authors point out that the implications of old laws (coverture, defined as a husband owning his wife) resonate even today. There are many examples of racial inequality within the law. For hundreds of years, African-Americans and Native Americans were denied the rights of white citizens (slavery, the Trail of Tears). Unfortunately, the article ends abruptly before delving too deeply into social class, though the Gideon v. Wainwright Supreme Court Case (1963) has some element of social inequality, given that the man on trial was African-American and also poor; he was unable to afford a lawyer and was told that the court would not provide one. Though undoubtedly his race had something to do with being denied counsel by the court, the fact that the man was notably poor and had four prior felonies likely contributed to his denial of rights.

The most illuminating aspect of the article is that these facts are known and not surprising. Despite the changes enacted in law over the last few hundred years, there is still a discernibly disproportionate number of African-Americans in prison, and laws on rape are still very narrow and can be extremely difficult to prove in a court of law, even if a confession and material evidence are present. Despite the assertion that all are created equal in the eyes of our forefathers, it is apparent that inequalities based on race, class, and gender prevail – even in the legal system – which indicates that oppression is alive and well in America. And, despite the changing of laws and outcries for justice, the inaction in regards to the inequality shows that Americans either do not know or do not care about the existence of such in the legal system.

Critical Traditions in Law and Society Research

In Silbey and Sarat’s article, the authors argue that it is possible to be both empirical and critical when conducting and analyzing social research. They discuss the roots of the law and society movement as “an effort not to be deceived;” it served to seek the truth and prevent clinging to any universal belief merely out of tradition. They found that a critical analysis does not exclude the movement from adopting traditions rather than continuing to dig further, and what began as an investigative expedition became what it set out to avoid – the authors write, “[T]he critical bite that comes from challenging a dominant paradigm often gets lost when the new vision becomes accepted and taken for granted, and is no longer at the margins but now functions as its own center” (p. 166). The authors wish for the movement must jettison its complacency, and reclaim its critical edge. To that end, they explain that law and society is constantly changing; in fact, to many people, it can have varied meanings. The law is viewed as the system that sends someone to prison or sentences another to execution; to others, it may be a way to right injustices, and to recompense victims. In order to fully understand law and society, it must be understood that life circumstances create different perspectives among individuals and that it is impossible to know how social life shapes the law, and vice versa. In knowing this, it becomes clear that universal truths cannot be made on law and society, as they are entities constantly changing, in their definitions and interactions.

One particular passage in the conclusion caught my attention. The authors write, “We need to stop trying quite so hard to come to terms with that ineffectiveness and to start studying what legal life is like in the vast interstices of law” (p. 173). This tells the reader that instead of complaining about the failures of the system and attempting to determine what went wrong, it will be more productive and realistic to study the law itself and how it pertains to the people, as interpreted by them, and their use of it in the practical world. This belief smacks of optimism, something seldom seen (and even more seldom published!) in the sociological realm. If these authors believe the solution lies in adopting more practical methods and focus, it seems reminiscent of the original purpose of the law and society movement, which – by the sound of it – could use the interest and rejuvenation.

Inventing Law in Local Settings: Rethinking Popular Legal Culture

In Yngvesson's article, she discusses the interaction of legal culture and popular culture - that is, how local law can reflect the ideologies of a community. Yngvesson's point of view is that "'the spirit of law’... is transformed, challenged, and reinvented local practices that produce a plural legal culture in contemporary America" (p. 1693). Though the larger body of government enacts national laws, they can be interpreted and utilized as citizens within smaller cities and states see fit. As people of higher authority – magistrates, judges, and other figures – head up local courts, these individuals use the law to reflect the values of the people and are responsible for keeping communities’ interests at heart. Courts are seen as enforcers of moral issues, as well as a forum for people to put forth their agendas.

What interested me was the discussion of the definitions of “neighborhood” and “community” (p. 1707). The black complainants insisted that the defendant could not understand their feelings, having not endured their struggles and history. Is it expected that people will be able to understand the contexts of their neighbors, and thus, their feelings? Was the defendant irresponsible in not having lived the same experiences as his neighbors and thus not sharing the same focus on what they wanted from their community? Because of the difference in circumstance and lives, it is hard to imagine all people being understanding and solicitous of the feelings of their neighbors. Was the defendant’s behavior objectionable, simply because he ran a business, or was it his difference in circumstance and life experience – race – that offended the black complainants? Do all communities with mixed race and/or class have tensions regarding values of the neighborhood? In my experience, neighborhoods adhere to the same standards and are close-knit, or they have little to no interaction as a whole. Does the difference in circumstance among neighborhoods lead to the latter?