Austin Sarat

The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .

The emergence and transformation of disputes, especially before they enter formal legal institutions, is a neglected topic in the sociology of law. We provide a framework for studying the processes by which unperceived injurious experiences are-or are not-perceived (naming), do or do not become grievances (blaming) and ultimately disputes (claiming), as well as for subsequent transformations. We view each of these stages as subjective, unstable, reactive, complicated, and incomplete. We postulate that transformations between them are caused by, and have consequences for, the parties, their attributions of responsibility, the scope of conflict, the mechanism chosen, the objectives sought, the prevailing ideology, reference groups, representatives and officials, and dispute institutions. We believe the study of transformations is important. Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes. Moreover, what happens at earlier stages determines both the quantity and the contents of the caseload of formal and informal legal institutions. Transformation studies spotlight the issue of conflict levels in American society and permit exploration of the question of whether these levels are too low.

Grievances, Claims, and Disputes: Assessing the Adversary Culture

The existence of a dispute has typically been the starting point for inquiries into dispute processing and resolution. This paper explores the origins of disputes in grievances and claims. It reports on a survey of households estimating the rates of grievances, claims, and disputes which could have been processed by a civil court of general jurisdiction. The paper also explores multivariate models of the probabilities that households experience substantial grievances, that claims for redress are made, and that disputes result. The models assess the contributions of household and problem characteristics to these transitions. By treating disputes as problematic outcomes of injurious experiences, the paper contributes to an assessment of the adversariness of American society.

Cause lawyering and the state in a global era

Sarat and Scheingolds 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.

Courts and Conflict Resolution: Problems in the Mobilization of Adjudication

This article attempts to assess the role of courts and other adjudicative institutions in the definition, interpretation, and management of conflict. Understanding the function of courts requires an understanding of a societys entire range of conflict management mechanisms. Particular emphasis is placed on those variables most likely to determine where and how conflicts will be solved. Adjudicative institutions can be effectively differentiated by a typology which measures the level of formality in procedures and the degree of “publicness.” The structure of a dispute-resolving institution will have an important effect on which disputes are presented to it and how they are decided. The nature of the dispute, goals of the disputants, social context, and political culture are also important variables. Government has an important stake in the manner in which disputes arise and are resolved. It may promote or require the resolution of some disputes in the courts while allowing others to be resolved in less public and formal arenas. Formal litigation may provide a model for private dispute resolution. It may also absorb and deflect grievances before they escalate into more organized and intense demands on the political system. Finally, litigation may have an important effect on system stability by promoting support for regime values.

Cultural analysis, cultural studies, and the law : moving beyond legal realism

Cultural Analysis, Cultural Studies, and the Law is a field-defining collection of work at the intersection of law, cultural analysis and cultural studies. Over the past few decades the marked turn toward claims and policy arguments based on cultural identity—such as ethnicity, race, or religion—has pointed up the urgent need for legal studies to engage cultural critiques. Exploration of legal issues through cultural analyses provides a rich supplement to other approaches—including legal realism, law and economics, and law and society. As Austin Sarat and Jonathan Simon demonstrate, scholars of the law have begun to mine the humanities for new theoretical tools and kinds of knowledge. Crucial to this effort is cultural studies, with its central focus on the relationship between knowledge and power. Drawing on legal scholarship, literary criticism, psychoanalytic theory, and anthropology, the essays collected here exemplify the contributions cultural analysis and cultural studies make to interdisciplinary legal study. Some of these broad-ranging pieces describe particular approaches to the cultural study of the law, while others look at specific moments where the law and culture intersect. Contributors confront the deep connections between law, social science, and post-World War II American liberalism; examine the traffic between legal and late-nineteenth- and early-twentieth-century scientific discourses; and investigate, through a focus on recovered memory, the ways psychotherapy is absorbed into the law. The essayists also explore specific moments where the law is forced to comprehend the world beyond its boundaries, illuminating its dependence on a series of unacknowledged aesthetic, psychological, and cultural assumptions—as in Aldolph Eichmann’s 1957 trial, hiv-related cases, and the U.S. Supreme Court’s recent efforts to define the role of race in the construction of constitutionally adequate voting districts. Contributors. Paul Berman, Peter Brooks, Wai Chee Dimock, Anthony Farley, Shoshanna Felman, Carol Greenhouse, Paul Kahn, Naomi Mezey, Tobey Miller, Austin Sarat, Jonathan Simon, Alison Young

Speaking of death: Narratives of violence in capital trials

How are violence and pain put into legal discourse? How does law distinguish its violence-capital punishment-from other kinds of violence? Do the strategies used to differentiate legal and extralegal violence alleviate anxiety about law and the uses to which laws violence is put? This article addresses these questions through an analysis of a capital trial in which an African-American man is being retried for the murder of a young white woman. It examines the social and cultural resources used to speak about violence and to differentiate legal and extralegal violence, and it suggests that the juxtaposition of narratives about violence in capital trials arouses rather than alleviates anxiety.

Support for the Legal System An Analysis of Knowledge, Attitudes, and Behavior

The legal system-the institutions, processes, and officials responsible for making, administering, and enforcing the law-considered as a whole makes important functional contributions to our society and polity (Friedman, 1969). Those who make, administer, and enforce the law play active and important roles in regulating social relationships, resolving conflicts, and allocating goods, services, power, prestige, and other scarce

Shadow Justice: The Ideology and Institutionalization of Alternatives to Courts.

This first critical examination of informal dispute processing links the institutionalization of alternatives to the court process and the ideology of informalism with the evolution of the American court system. The author connects dispute processing reform to the broader social and political context in which it developed, including the rise of judicial management in the Progressive period and the reconstruction of court unification in the 1970s. Harrington defines legal resources and their distribution in alternative dispute resolution policy before focusing on the institutionalization of this reform in a case study of a federally sponsored Neighborhood Justice Center. In conclusion, Harrington finds that the symbols of informalism and its institutions are a mere shadow of conventional legal practices.

Race, law, and culture : reflections on Brown v. Board of Education

More than forty years after Brown v. Board of Education put an end to segregation of the races by law, current debates about affirmative action, multiculturalism, and racial hate speech reveal persistent uncertainty about the meaning of race in American culture and the role of law in guaranteeing racial equality. This book takes the continuing controversy about race as an invitation to revisit Brown. The essays collected here are diverse in their perspectives and lively in their presentation. Taken togther, they provide a fresh look at Brown as well as the way it is implicated in Americas contemporary uncertainties about race.

Legal Realism in Lawyer-Client Communication

Legal materials have often been used to examine issues of general interest in the analysis of language and language use. Traditionally the study of law and language has concentrated on statutes, formal decisions, legal instruments, or documents used in legal procedures (see Rodell, 1939; Christie, 1964; Mellinkoff, 1963; Brigham, 1978). Particular attention has been given to questions of whether legal language is distinct from other language forms (Stone, 1981) and whether legal language can, and should, be simplified and thus made more accessible to non-lawyers (see Arnold, 1935:66).