A SCHOLARLY BOOK REPOSITORY
Conflict is inevitable, in both deals and disputes. Yet when clients call in the lawyers to haggle over who gets how much of the pie, traditional hard-bargaining tactics can lead to ruin. Too often, deals blow up, cases don’t settle, relationships fall apart, justice is delayed. Beyond Winning charts a way out of our current crisis of confidence in the legal system. It offers a fresh look at negotiation, aimed at helping lawyers turn disputes into deals, and deals into better deals, through practical, tough-minded problem-solving techniques.
In this step-by-step guide to conflict resolution, the authors describe the many obstacles that can derail a legal negotiation, both behind the bargaining table with one’s own client and across the table with the other side. They offer clear, candid advice about ways lawyers can search for beneficial trades, enlarge the scope of interests, improve communication, minimize transaction costs, and leave both sides better off than before. But lawyers cannot do the job alone. People who hire lawyers must help change the game from conflict to collaboration. The entrepreneur structuring a joint venture, the plaintiff embroiled in a civil suit, the CEO negotiating an employment contract, the real estate developer concerned with environmental hazards, the parent considering a custody battle—clients who understand the pressures and incentives a lawyer faces can work more effectively within the legal system to promote their own best interests. Attorneys exhausted by the trench warfare of cases that drag on for years will find here a positive, proven approach to revitalizing their profession.
Community Courts are designed to handle a city’s low-level offenses and quality-of-life crimes, such as littering, loitering, or public drunkenness. Court advocates maintain that these largely victimless crimes jeopardize the well-being of residents, businesses, and visitors. Whereas traditional courts might dismiss such cases or administer a small fine, community courts aim to meaningfully punish offenders to avoid disorder escalating to apocalyptic decline.
Courting the Community is a fascinating ethnography that goes behind the scenes to explore how quality-of-life discourses are translated into court practices that marry therapeutic and rehabilitative ideas. Christine Zozula shows how residents and businesses participate in meting out justice—such as through community service, treatment, or other sanctions—making it more emotional, less detached, and more legitimate in the eyes of stakeholders. She also examines both “impact panels,” in which offenders, residents, and business owners meet to discuss how quality-of-life crimes negatively impact the neighborhood, as well as strategic neighborhood outreach efforts to update residents on cases and gauge their concerns.
Zozula’s nuanced investigation of community courts can lead us to a deeper understanding of punishment and rehabilitation and, by extension, the current state of the American court system.
Building on Pierre Bourdieu's structural approach, the authors show how an informal, settlement-oriented system became formalized and litigious. Integral to this new legal field is the intense personal competition among arbitrators to gain a reputation for virtue, hoping to be selected for arbitration panels. Since arbitration fees have skyrocketed, this is a high-stakes game.
Using multiple examples, Dezalay and Garth explore how international developments can transform domestic methods for handling disputes and analyze the changing prospects for international business dispute resolution given the growing presence of such international market and regulatory institutions as the EEC, the WTO, and NAFTA.
"A fascinating book, which I strongly recommend to all those active in international commercial arbitration, as they will see the arbitral world from new and unthought of perspectives."—Jacques Werner, Journal of International Arbitration
Exposing the powerful contradictions between empowering rights and legal rites
By investigating the harms routinely experienced by the victims and survivors of domestic violence, both inside and outside of law, Everyday Harm studies the limits of what domestic violence law can--and cannot--accomplish. Combining detailed ethnographic research and theoretical analysis, Mindie Lazarus-Black illustrates the ways persistent cultural norms and ingrained bureaucratic procedures work to unravel laws designed to protect the safety of society’s most vulnerable people.
Lazarus-Black’s fieldwork in Trinidad traces a story with global implications about why and when people gain the right to ask the court for protection from violence, and what happens when they pursue those rights in court. Why is itthat, in spite of laws designed to empower subordinated people, so little results from that legislation? What happens in and around courts that makes it so difficult for people to obtain their legally available rights and protections? In the case of domestic violence law, what can such legislation mean for women’s empowerment, gender equity, and protection? How do cultural norms and practices intercept the law?
Getting Justice and Getting Even concerns the legal consciousness of working class Americans and their experiences with court and mediation. Following cases into and through the courts, Sally Engle Merry provides an ethnographic study of local law and of the people who use it in a New England city. The litigants, primarily white, native-born, and working class, go to court because as part of mainstream America they feel entitled to use its legal system. Although neither powerful nor highly educated, they expect the law's support when they face intolerable infringements of their rights, privacy, and safety. Yet as personal problems enter the legal system and move through mediation sessions, clerk's hearings, and prosecutor's conferences, the citizen plaintiff rapidly loses control of the process. Court officials and mediators interpret and characterize the meaning of these experiences, reframing and categorizing them in different discourses. Some plaintiffs yield to these interpretations, but others resist, struggling to assert their own version of the problem.
Ultimately, Merry exposes the paradox of legal entitlement. While going to court allows an individual to dominate domestic relationships, the litigant must increasingly yield control of the situation to the court that supplies that power.
influence of law on Italian society during the Renaissance,
especially in the spheres of family and women. Kuehn's use
of legal sources along with letters, diaries, and
contemporary accounts allows him to present a compelling
image of the social processes that affected the shape and
function of the law.
The numerous law courts of Italian city-states
constantly devised and revised statutes. Kuehn traces the
permutations of these laws, then examines their use by
Florentines to arbitrate conflict and regulate social
behavior regarding such issues as kinship, marriage,
business, inheritance, illlegitimacy, and gender. Ranging
from one man's embittered denunciation of his father to
another's reaction to his kinsmen's rejection of him as
illegitimate, Law, Family, and Women provides
fascinating evidence of the tensions riddling family life in
Renaissance Florence. Kuehn shows how these same tensions,
often articulated in and through the law, affected women. He
examines the role of the mundualdus—a male legal guardian
for women—in Florence, the control of fathers over their
married daughters, and issues of inheritance by and through
women. An ambitious attempt to reformulate the agenda of
Renaissance social history, Kuehn's work will be of value to
both legal anthropologists and social historians.
Thomas Kuehn is professor of history at Clemson
University.
The countries of Central America, afflicted for many years by civil strife and economic stagnation, are entering a new era of peace, democracy, and economic development. Now, more than ever, it is necessary for reforms in the legal system to successfully support these changes.
This volume examines two fields of law in which reforms are especially crucial: the improvement of the judicial systems and other mechanisms for resolving noncriminal disputes, and modernization of the laws governing both tangible and "intellectual" property. Among the specific topics addressed in the volume are the debate over "oralidad;" the problem of interlocutory appeals; nonjudicial procedures for resolving disputes (negotiation, mediation, conciliation, and arbitration); land and trademark registration systems; land reform in Nicaragua; the management of genetic resources; online legal databases; and legal education.
In Order without Law, Robert Ellickson shows that law is far less important than is generally thought. He demonstrates that people largely govern themselves by means of informal rules—social norms—that develop without the aid of a state or other central coordinator. Integrating the latest scholarship in law, economics, sociology, game theory, and anthropology, Ellickson investigates the uncharted world within which order is successfully achieved without law.
The springboard for Ellickson’s theory of norms is his close investigation of a variety of disputes arising from the damage created by escaped cattle in Shasta County, California. In “The Problem of Social Cost”—the most frequently cited article on law—economist Ronald H. Coase depicts farmers and ranchers as bargaining in the shadow of the law while resolving cattle-trespass disputes. Ellickson’s field study of this problem refutes many of the behavioral assumptions that underlie Coase’s vision, and will add realism to future efforts to apply economic analysis to law.
Drawing examples from a wide variety of social contexts, including whaling grounds, photocopying centers, and landlord–tenant relations, Ellickson explores the interaction between informal and legal rules and the usual domains in which these competing systems are employed. Order without Law firmly grounds its analysis in real-world events, while building a broad theory of how people cooperate to mutual advantage.
Pursuing Justice in Africa focuses on the many actors pursuing many visions of justice across the African continent—their aspirations, divergent practices, and articulations of international and vernacular idioms of justice. The essays selected by editors Jessica Johnson and George Hamandishe Karekwaivanane engage with topics at the cutting edge of contemporary scholarship across a wide range of disciplines. These include activism, land tenure, international legal institutions, and postconflict reconciliation.
Building on recent work in sociolegal studies that foregrounds justice over and above concepts such as human rights and legal pluralism, the contributors grapple with alternative approaches to the concept of justice and its relationships with law, morality, and rights. While the chapters are grounded in local experiences, they also attend to the ways in which national and international actors and processes influence, for better or worse, local experiences and understandings of justice. The result is a timely and original addition to scholarship on a topic of major scholarly and pragmatic interest.
Contributors:
Felicitas Becker, Jonathon L. Earle, Patrick Hoenig, Stacey Hynd, Fred Nyongesa Ikanda, Ngeyi Ruth Kanyongolo, Anna Macdonald, Bernadette Malunga, Alan Msosa, Benson A. Mulemi, Holly Porter, Duncan Scott, Olaf Zenker.
Franklin Strier brings this critical look at trial reform up to date with a new preface in which he discusses how the inordinate amount of public attention of the O. J. Simpson trial, and the power the attorneys had over the court in that case, shed new light on the trial system's weaknesses and inequities.
"Anyone with an interest in courtroom trials will be fascinated by Strier's analysis of the game of law and suggestions for reforming the trail system to provide justice in a greater number of cases. . . . Highly recommended."—Choice
"A work of impressive scholarship in which theoretical sophistication and ethnographic richness are convincingly matched."—Ian Hamnett, Times Higher Education Supplement.
Examining detailed case studies of the International Court of Justice and the transition from the General Agreement on Tariffs and Trade to the World Trade Organization, Leslie Johns finds that a court’s design has nuanced and mixed effects on international cooperation. A strong court is ideal when laws are precise and the court is nested within a political structure like the European Union. Strong courts encourage litigation but make states more likely to comply with agreements when compliance is easy and withdraw from agreements when it is difficult. A weak court is optimal when law is imprecise and states can easily exit agreements with minimal political or economic repercussions. Johns concludes the book with recommendations for promoting cooperation by creating more precise international laws and increasing both delegation and obligation to international courts.
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