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40 books match the query 'Sociological jurisprudence'

cover of Archiving Sovereignty: Law, History, Violence

Archiving Sovereignty

Law, History, Violence

Stewart Motha

University of Michigan Press, 2018

Archiving Sovereignty shows how courts use fiction in their treatment of sovereign violence. Law's complicity with imperial and neocolonial practices occurs when courts inscribe and repeat the fabulous tales that provide an alibi for archaic sovereign acts that persist in the present. The United Kingdom's depopulation of islands in the Indian Ocean to serve the United States' neoimperial interests, Australia's exile and abandonment of refugees on remote islands, the failure to acknowledge genocidal acts or colonial dispossession, and the memorial work of the South African Constitution after apartheid are all sustained by historical fictions. This history-work of law constitutes an archive where sovereign violence is mediated, dissimulated, and sustained. Stewart Motha extends the concept of the "archive," as site of origin and source of authority, to signifying what law does in preserving and disavowing the past at the same time.

Sovereignty is often cast as a limit-concept, constituent force, determining the boundary of law. Archiving Sovereignty reverses this to explain how judicial pronouncements inscribe and sustain extravagant claims to exceptionality and sovereign solitude. This wide-ranging, critical work distinguishes between myths that sustain neocolonial orders and fictions that generate new forms of political and ethical life.
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cover of Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment

Beyond Monopoly

Lawyers, State Crises, and Professional Empowerment

Terence C. Halliday

University of Chicago Press, 1987

How do professional associations build their resources and establish authroity? What are the conditions under which professional expertise can be mobilized for political action? If professional organizations are endowed with a wealth of resources, do they use them responsibly or only for economic monopoly? What is the potential scope of professional action today?

In this pathbreaking study of the legal profession, Terence Halliday raises and addresses these questions combining extensive data from the rich archives o the Chicago Bar Association, one of the nation's largest and wealthiest bar organizations, with data from a national survey of bar legislative and judicial action. Beyond Monopoly demonstrates that the primary commitment of lawyers to economic monopoly has long been complemented by "civic professionalism" as the legal profession takes on more responsibility in the American democratic system when state capabilities diminish.

Through his examination of three types of state crises in the 1950s and 1960s—the challenges to legitimacy in the legal system, the crisis of individual rights during McCarthyism and the civil rights eras, and the fiscal crises of various state governments—Halliday shows that large bar associations can have extensive influence on any institution that is regulated by law. He argues that lawyers have the capability of turning social and political issues into technical legal matters in what he calls an "idiom of legalism." Under technical guise, lawyers come to exercise moral authority.

Halliday maintains that the American legal profession over the past century has gone from a formative stage, when controlling its market in the delivery of legal services was paramount, to an established phase in the past two decades, when it has committed extensive resources to the complex needs of the modern state. A de facto bargain has been struck: if the state leaves the profession's monopoly fairly intact, the profession can use its expert resources to help the state adapt to strain and crisis. It can do so not only in the legal system, where it has been championing "autonomous" law, but in other spheres as well—from the economy to the private sphere of individual rights.

Halliday confirms that the legal profession deploys its expertise not merely to attain professional dominance, to control a market, or to purvey an ideology, but to increase the viability of democratic institutions. Beyond Monopoly introduces a pioneering approach to a historical and comparative sociology of the professions that will be of vital interest not only to sociologists, but to political scientists and lawyers as well.
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cover of Conceptual Activism: Radical Sense-Making and the Struggle for Gender

Conceptual Activism

Radical Sense-Making and the Struggle for Gender

Davina Cooper

Duke University Press, 2026

The struggle over defining, naming, and using concepts is central to many political conflicts. In this original account of conceptual activism, Davina Cooper asks how new conceptual meanings are made, used, held, and experienced. Drawing on theoretical and empirical research, she analyzes the high-profile contemporary conflict in Britain over sex and gender. Here policymakers, regulatory bodies, community organizations, and academics fight to draw and redraw categories and their boundaries in a struggle that has spread across the census, speculative law reform, equality governance, and more. To understand the techniques and challenges that the advancement of new and controversial meanings faces, Conceptual Activism offers an innovative account of concepts and how meaning is reorganized in conditions of resistance, attentive to concepts’ materiality, plasticity, force, and unexpected encounters. As sex and gender meet economy, property, play, and activism, Cooper demonstrates how and why academic work should engage in conceptual activism.
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cover of Crossing Boundaries: Traditions and Transformations in Law and Society Research

Crossing Boundaries

Traditions and Transformations in Law and Society Research

Austin Sarat

Northwestern University Press, 1998

Perhaps no idea is more emblematic of the field of law and society than crossing boundaries. From the founding of the Law and Society Association in the early 1960s, participating scholars aspired to create a field that crossed boundaries in at least two senses: by undertaking research that questioned and often bridged traditional methodological and disciplinary divisions, and by using nontraditional approaches to explore the interconnections between law and its social context. These essays reflect both aspirations.
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cover of Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism

Cultural Analysis, Cultural Studies, and the Law

Moving Beyond Legal Realism

Austin Sarat and Jonathan Simon, eds.

Duke University Press, 2003

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

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cover of Cultural Pluralism, Identity Politics, and the Law

Cultural Pluralism, Identity Politics, and the Law

Austin Sarat and Thomas R. Kearns, Editors

University of Michigan Press, 2001

We are witnessing in the last decade of the twentieth century more frequent demands by racial and ethnic groups for recognition of their distinctive histories and traditions as well as opportunities to develop and maintain the institutional infrastructure necessary to preserve them. Where it once seemed that the ideal of American citizenship was found in the promise of integration and in the hope that none of us would be singled out for, let alone judged by, our race or ethnicity, today integration, often taken to mean a denial of identity and history for subordinated racial, gender, sexual or ethnic groups, is often rejected, and new terms of inclusion are sought. The essays in Cultural Pluralism, Identity Politics, and the Law ask us to examine carefully the relation of cultural struggle and material transformation and law's role in both. Written by scholars from a variety of disciplines and theoretical inclinations, the essays challenge orthodox understandings of the nature of identity politics and contemporary debates about separatism and assimilation. They ask us to think seriously about the ways law has been, and is, implicated in these debates. The essays address questions such as the challenges posed for notions of legal justice and procedural fairness by cultural pluralism and identity politics, the role played by law in structuring the terms on which recognition, accommodation, and inclusion are accorded to groups in the United States, and how much of accepted notions of law are defined by an ideal of integration and assimilation.
The contributors are Elizabeth Clark, Lauren Berlant, Dorothy Roberts, Georg Lipsitz, and Kenneth Karst.
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cover of Developing Educators for The Digital Age: A Framework for Capturing Knowledge in Action

Developing Educators for The Digital Age

A Framework for Capturing Knowledge in Action

Paul Breen

University of Westminster Press, 2018

Evaluating skills and knowledge capture lies at the cutting edge of contemporary higher education where there is a drive towards increasing evaluation of classroom performance and use of digital technologies in pedagogy. Developing Educators for the Digital Age is a book that provides a narrative account of teacher development geared towards the further usage of technologies (including iPads, MOOCs and whiteboards) in the classroom presented via the histories and observation of a diverse group of teachers engaged in the multiple dimensions of their profession.

Drawing on the insights of a variety of educational theories and approaches (including TPACK) it presents a practical framework for capturing knowledge in action of these English language teachers – in their own voices – indicating how such methods, processes and experiences shed light more widely on related contexts within HE and may be transferable to other situations.

This book will be of interest to the growing body of scholars interested in TPACK theory, or communities of practice theory and more widely anyone concerned with how new pedagogical skills and knowledge with technology may be incorporated in better practice and concrete instances of teaching.

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cover of Distorting the Law: Politics, Media, and the Litigation Crisis

Distorting the Law

Politics, Media, and the Litigation Crisis

William Haltom and Michael McCann

University of Chicago Press, 2004

In recent years, stories of reckless lawyers and greedy citizens have given the legal system, and victims in general, a bad name. Many Americans have come to believe that we live in the land of the litigious, where frivolous lawsuits and absurdly high settlements reign.

Scholars have argued for years that this common view of the depraved ruin of our civil legal system is a myth, but their research and statistics rarely make the news. William Haltom and Michael McCann here persuasively show how popularized distorted understandings of tort litigation (or tort tales) have been perpetuated by the mass media and reform proponents. Distorting the Law lays bare how media coverage has sensationalized lawsuits and sympathetically portrayed corporate interests, supporting big business and reinforcing negative stereotypes of law practices.

Based on extensive interviews, nearly two decades of newspaper coverage, and in-depth studies of the McDonald's coffee case and tobacco litigation, Distorting the Law offers a compelling analysis of the presumed litigation crisis, the campaign for tort law reform, and the crucial role the media play in this process.
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cover of Foucault and Law: Towards a Sociology of Law As Governance

Foucault and Law

Towards a Sociology of Law As Governance

Alan Hunt and Gary Wickham

Pluto Press, 1994

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cover of Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans

Getting Justice and Getting Even

Legal Consciousness among Working-Class Americans

Sally Engle Merry

University of Chicago Press, 1990

Ordinary Americans often bring family and neighborhood problems to court, seeking justice or revenge. The litigants in these local squabbles encounter law at its boundaries in the corridors of busy city courthouses, in the offices of court clerks, and in the church parlors used by mediation programs.

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.
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cover of Going to Court to Change Japan: Social Movements and the Law in Contemporary Japan

Going to Court to Change Japan

Social Movements and the Law in Contemporary Japan

Patricia G. Steinhoff, Editor

University of Michigan Press, 2014

Going to Court to Change Japan takes us inside movements dealing with causes as disparate as death by overwork, the rights of the deaf, access to prisoners on death row, consumer product safety, workers whose companies go bankrupt, and persons convicted of crimes they did not commit. Each of the six fascinating case studies stands on its own as a detailed account of how a social movement has persisted against heavy odds to pursue a cause through the use of the courts.
The studies pay particular attention to the relationship between the social movement and the lawyers who handle their cases, usually pro bono or for minimal fees. Through these case studies we learn much about how the law operates in Japan as well as how social movements mobilize and innovate to pursue their goals using legal channels. The book also provides a general introduction to the Japanese legal system and a look at how recent legal reforms are working.
Going to Court to Change Japan will interest social scientists, lawyers, and anyone interested in the inner workings of contemporary Japan. It is suitable for use in a wide range of undergraduate and graduate courses on Japan in social sciences and law, and can also provide a comparative perspective to general courses in these fields. Contributors include John H. Davis Jr., Daniel H. Foote, Patricia L. Maclachlan, Karen Nakamura, Scott North, Patricia G. Steinhoff, and Christena Turner.
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cover of Happiness and the Law

Happiness and the Law

John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur

University of Chicago Press, 2014

Happiness and the law. At first glance, these two concepts seem to have little to do with each other. To some, they may even seem diametrically opposed. Yet one of the things the law strives for is to improve people’s quality of life. To do this, it must first predict what will make people happy. Yet happiness research shows that, time and time again, people err in predicting what will make them happy, overestimating the import of money and mistaking the circumstances to which they can and cannot adapt.  

Drawing on new research in psychology, neuroscience, and economics, the authors of Happiness and the Law assess how the law affects people’s quality of life—and how it can do so in a better way. Taking readers through some of the common questions about and objections to the use of happiness research in law and policy, they consider two areas in depth: criminal punishment and civil lawsuits. More broadly, the book proposes a comprehensive approach to assessing human welfare—well-being analysis—that is a valuable alternative to the strictly economically based cost-benefit analyses currently dominating how we evaluate public policy. The study of happiness is the next step in the evolution from traditional economic analysis of the law to a behavioral approach. Happiness and the Law will serve as the definitive, yet accessible, guide to understanding this new paradigm.
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cover of How Does Law Matter?: Fundamental Issues in Law And Society

How Does Law Matter?

Fundamental Issues in Law And Society

Bryant G. Garth and Austin Sarat

Northwestern University Press, 1998

The question of how law matters has long been fundamental to the law and society field. Social science scholarship has repeatedly demonstrated that law matters less, or differently, than those who study only legal doctrine would have us believe. Yet research in this field depends on a belief in the relevance of law, no matter how often gaps are identified.

These essays show how law is relevant in both an "instrumental" and a "constitutive" sense, as a tool to accomplish particular purposes and as an important force in shaping the everyday worlds in which we live. Essays examine these issues by focusing on legal consciousness, the body, discrimination, and colonialism as well as on more traditional legal concerns such as juries and criminal justice.
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cover of Invitation to Law and Society, Second Edition: An Introduction to the Study of Real Law

Invitation to Law and Society, Second Edition

An Introduction to the Study of Real Law

Kitty Calavita

University of Chicago Press, 2016

Law and society is a rapidly growing field that turns the conventional view of law as mythical abstraction on its head. Kitty Calavita brilliantly brings to life the ways in which law is found not only in statutes and courtrooms but in our institutions and interactions, while inviting readers into conversations that introduce the field’s dominant themes and most lively disagreements. Deftly interweaving scholarship with familiar examples, Calavita shows how scholars in the discipline are collectively engaged in a subversive exposé of law’s public mythology. While surveying prominent issues and distinctive approaches to both law as it is written and actual legal practices, as well as the law’s potential as a tool for social change, this volume provides a view of law that is more real but just as compelling as its mythic counterpart.

With this second edition of Invitation to Law and Society, Calavita brings up to date what is arguably the leading introduction to this exciting, evolving field of inquiry and adds a new chapter on the growing law and cultural studies movement.
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cover of Invitation to Law and Society: An Introduction to the Study of Real Law

Invitation to Law and Society

An Introduction to the Study of Real Law

Kitty Calavita

University of Chicago Press, 2010

Law and Society is a rapidly-growing interdisciplinary field that turns on its head the conventional, idealized view of the “Law” as a magisterial abstraction. Kitty Calavita’s Invitation to Law and Society brilliantly brings to life the ways in which law shapes and manifests itself in the institutions and interactions of human society, while inviting the reader into conversations that introduce the field’s dominant themes and most lively disagreements. 

Deftly interweaving scholarship with familiar personal examples, Calavita shows how scholars in the discipline are collectively engaged in a subversive exposé of law’s public mythology. While surveying prominent issues and distinctive approaches to the use of the law in everyday life, as well as its potential as a tool for social change, this volume provides a view of law that is more real but just as compelling as its mythic counterpart. In a field of inquiry that has long lacked a sophisticated yet accessible introduction to its ways of thinking, Invitation to Law and Society will serve as an engaging and indispensible guide.

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cover of Just Words: Law, Language, and Power, Third Edition

Just Words

Law, Language, and Power, Third Edition

John M. Conley, William M. O'Barr, and Robin Conley Riner

University of Chicago Press, 2019

Is it “just words” when a lawyer cross-examines a rape victim in the hopes of getting her to admit an interest in her attacker? Is it “just words” when the Supreme Court hands down a decision or when business people draw up a contract? In tackling the question of how an abstract entity exerts concrete power, Just Words focuses on what has become the central issue in law and language research: what language reveals about the nature of legal power. 

John M. Conley, William M. O'Barr, and Robin Conley Riner show how the microdynamics of the legal process and the largest questions of justice can be fruitfully explored through the field of linguistics. Each chapter covers a language-based approach to a different area of the law, from the cross-examinations of victims and witnesses to the inequities of divorce mediation. Combining analysis of common legal events with a broad range of scholarship on language and law, Just Words seeks the reality of power in the everyday practice and application of the law. As the only study of its type, the book is the definitive treatment of the topic and will be welcomed by students and specialists alike. This third edition brings this essential text up to date with new chapters on nonverbal, or “multimodal,” communication in legal settings and law, language, and race.
 
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cover of Justifying Law: The Debate over Foundations, Goals, and Methods

Justifying Law

The Debate over Foundations, Goals, and Methods

Raymond Belliotti

Temple University Press, 1994

"A comprehensive assessment of traditional and contemporary legal thought, Mr. Belliotti's defense of 'critical pragmatism' is a significant contribution to the literature. This book takes on all the leading theories and takes them on seriously. It is one of the most ambitious and satisfying efforts in print at mediating the seemingly irreconcilable tensions between law's mainstream liberal analysts and its leftist critics." --Anita L. Allen, Professor of Law, Georgetown University Law Center Entering the perennial debate about the role and definition of law, Raymond Belliotti presents a critical survey of a number of philosophical approaches to law and judicial decision-making. Confronting the conflicting orientations represented by legal formalism and legal realism, he discusses the relationship between law and society. For a decision such as Roe v. Wade, the differing justifications by formalists and realists can affect policy interpretations as well as legal challenges. The application of an implicit right to privacy versus the attempt to enact policy that deals with a social problem and the acceptance of judicial innovation demonstrates how sometimes opposing arguments can reach the same legal decision. While providing his own account of law, Belliotti takes seriously the legal critiques inspired by Marxism and feminism and illustrates how traditional philosophical problems and methods plague legal theory. He also shows the impasses to which our argumentation strategies lead and suggests ways we might transcend those dead ends. "The author brings a critical intelligence and a very impressive scholarship to traditional issues in law. The strength that jumps from the page is a very well informed contemporary reading that avoids clichés and the limits of much contemporary analysis." --John Brigham, University of Massachusetts, Amherst, and author of The Cult of the Court (Temple) "[A]n excellent survey and analysis of major theories in the philosophy of law. The book features intelligent discussions of such diverse approaches as natural law theory, legal positivism, law and economics, feminist jurisprudence, and Critical Legal Studies. Justifying Law is full of insight, clear reasoning, and common sense.... The wide-ranging examination reveals Belliotti's substantial scholarship and keen intelligence.... Through his presentation and commentary on several philosophies of law and individual legal theorists, Belliotti has enriched and advanced jurisprudential dialogue and inquiry." --Journal of Value Inquiry
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cover of Law and Performance

Law and Performance

Austin Sarat

University of Massachusetts Press, 2018

Drawing on the rich field of performance studies, this volume, the most recent contribution to the distinguished Amherst Series in Law, Jurisprudence, and Social Thought, offers fresh insights and a provocative mix of multidisciplinary topics and methodologies to explore the theatricality and performativity of law as more than a metaphor.

In considering law through the lens of performance studies, the contributors in this volume emphasize the embodied, affective, and reiterative qualities that move law off the printed page and into the thick world of lived experience. They consider the blurring of lines between performance and the enactment of law, the transformative exchanges between the law and its many and varied stagings, and the impact or resonance of performativity in situations where innocence and guilt may be determined. In addition to the editors, the contributors include Joshua Chambers-Letson, Catherine M. Cole, Ryan Hartigan, Lara D. Nielsen, Julie Stone Peters, Ann Pellegrini, and Karen Shimakawa.
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cover of Law and the Social Sciences

Law and the Social Sciences

Leon Lipson

Russell Sage Foundation, 1987

The notion of law as a social phenomenon would have surprised educators and scholars a century ago. For them, law was a science and the library was the ultimate source of all legal knowledge. Our contemporary willingness to see law in a social context—reflecting social relations, for example, or precipitating social changes—is a relatively recent development, spurred during the last quarter century by the work of a generation of scholars (mostly social scientists and law professors) who believe the perspectives of the social sciences are essential to a better understanding of the law.

Law and the Social Sciences provides a unique and authoritative assessment of modern sociolegal research. Its impressive range and depth, the centrality of its concerns, and the stature of its contributors all attest to the vitality of the law-and-society movement and the importance of interdisciplinary work in this field.

Each chapter is both an exposition of its author’s point of view and a survey of the pertinent literature. In treating such topics as law and the economic order, legal systems of the world, the deterrence doctrine, and access to justice, the authors explore overlapping themes—the tension between public and private domains, between diffused and concentrated power, between the goals of uniformity and flexibility, between costs and benefits—that are significant to observers not only of our legal institutions but of other social systems as well.

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cover of Law by Night

Law by Night

Jonathan Goldberg-Hiller

Duke University Press, 2023

In Law by Night Jonathan Goldberg-Hiller asks what we can learn about modern law and its authority by understanding how it operates in the dark of night. He outlines how the social experience and cultural meanings of night promote racialized and gender violence, but also make possible freedom of movement for marginalized groups that might be otherwise unavailable during the day. Examining nighttime racial violence, curfews, gun ownership, the right to sleep, and “take back the night” rallies, Goldberg-Hiller demonstrates that liberal legal doctrine lacks a theory of the night that accounts for a nocturnal politics that has historically allowed violence to persist. By locating the law’s nocturnal limits, Goldberg-Hiller enriches understandings of how the law reinforces hierarchies of race and gender and foregrounds the night’s potential to enliven a more egalitarian social life.
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cover of Law in Everyday Japan: Sex, Sumo, Suicide, and Statutes

Law in Everyday Japan

Sex, Sumo, Suicide, and Statutes

Mark D. West

University of Chicago Press, 2005

Lawsuits are rare events in most people's lives. High-stakes cases are even less commonplace. Why is it, then, that scholarship about the Japanese legal system has focused almost exclusively on epic court battles, large-scale social issues, and corporate governance? Mark D. West's Law in Everyday Japan fills a void in our understanding of the relationship between law and social life in Japan by shifting the focus to cases more representative of everyday Japanese life.

Compiling case studies based on seven fascinating themes—karaoke-based noise complaints, sumo wrestling, love hotels, post-Kobe earthquake condominium reconstruction, lost-and-found outcomes, working hours, and debt-induced suicide—Law in Everyday Japan offers a vibrant portrait of the way law intermingles with social norms, historically ingrained ideas, and cultural mores in Japan. Each example is informed by extensive fieldwork. West interviews all of the participants-from judges and lawyers to defendants, plaintiffs, and their families-to uncover an everyday Japan where law matters, albeit in very surprising ways.
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cover of Legal Secrets: Equality and Efficiency in the Common Law

Legal Secrets

Equality and Efficiency in the Common Law

Kim Lane Scheppele

University of Chicago Press, 1988

Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether the psychiatrist should disclose to his patient's girlfriend that the patient wants to kill her?

Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning—how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent.

This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality.
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cover of Lives in the Law

Lives in the Law

Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, Editors

University of Michigan Press, 2002

The essays look at the consequences that legal practice has on the lives of its practitioners as well as on the individual legal subject and on the shape of shared identities. These essays challenge liberal and communitarian notions of what it means to live the law.

 
In the first of the essays, Pnina Lahav presents a study of the Chicago Seven Trial to paint a picture of the law's power to serve as a site for the definition of a collective group identity. In contrast, Sarah Gordon focuses on the experience of an individual legal subject, namely, the defendant in the Hester Vaughn trial, a notorious nineteenth-century case of infanticide. Frank Munger looks at how law constructs the identity of women and explores the strategies by which poor women resist the law's construction of their dependency. In the fourth essay, Vicki Schultz offers a moral vision of equality that straddles the liberal and communitarian positions with her articulation of the concept of a "life's work." Lastly, Annette Wieviorka examines the recent trial of Maurice Papon for complicity in crimes against humanity to reveal how the very identity of a nation--in this case, France--can be defined through juridical and legal acts.
Austin Sarat is William Nelson Cromell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence and Social Thought, Amherst College. Lawrence Douglas is Associate Professor of Law, Jurisprudence and Social Thought, Amherst College. Martha Umphrey is Assistant Professor of Law, Jurisprudence and Social Thought, Amherst College.
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cover of Managing Legal Uncertainty: Elite Lawyers in the New Deal

Managing Legal Uncertainty

Elite Lawyers in the New Deal

Ronen Shamir

Duke University Press, 1995

With the New Deal came a dramatic expansion of the American regulatory state. Threatening to undermine many of the traditional roles of the legal system and its actors by establishing a system of administrative law, the new emphasis on federal legislation as a form of social and economic planning ushered in an era of "legal uncertainty." In this study Ronen Shamir explores how elite corporate lawyers and the American Bar Association clashed with academic legal realists over the constitutionality of the New Deal’s legislative program.
Applying the insights of Weber and Bourdieu to the sociology of the legal profession, Shamir shows that elite members of the bar had a keen self-interest in blocking the expansion of administrative law. He dismisses as oversimplified the view that elite lawyers were "hired guns" who argued that New Deal legislation was unconstitutional solely because of their duty to represent their capitalist clients. Instead, Shamir suggests, their alignment with the capitalist class was an incidental result of their attempt to articulate their vision of the law as scientific, apolitical, and judicially oriented—and thereby to defend their own position within the law profession. The academic legal realists on the other side of the constitutional debates criticized the rigidity of the traditional judicial process and insisted that flexibility of interpretation and the uncertainty of legal outcomes was at the heart of the legal system. The author argues that many legal realists, encouraged by the experimental nature of the New Deal, seized an opportunity to improve on their marginal status within the legal profession by moving their discussions from academic circles to the national policy agenda.
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cover of SEE

SEE

Andrea Pavoni, Danilo Mandic, Caterina Nirta and Andreas Philippopoulos-Mihalopoulos

University of Westminster Press, 2018

Vision traditionally occupies the height of the sensorial hierarchy. The sense of clarity and purity conveyed by vision, allows it to be explicitly associated with truth and knowledge. The law has always relied on vision and representation, from eye-witnesses to photography, to imagery and emblems. The law and its normative gaze can be understood as that which decrees what is permitted to be and become visible and what is not. Indeed, even if law’s perspectival view is bound to be betrayed by the realities of perception, it is nonetheless productive of real effects on the world.

This first title in the interdisciplinary series ‘Law and the Senses’ asks how we can develop new theoretical approaches to law and seeing that go beyond a simple critique of the legal pretension to truth. This volume aims to understand how law might see and unsee, and how in its turn is seen and unseen. It explores devices and practices of visibility, the evolution of iconology and iconography, and the relation between the gaze of the law and the blindness of justice. The contributions, all radically interdisciplinary, are drawn from photography, legal theory, philosophy, and poetry.

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cover of Social Research in the Judicial Process: Cases, Readings, and Text

Social Research in the Judicial Process

Cases, Readings, and Text

Wallace D. Loh

Russell Sage Foundation, 1984

"How to inform the judicial mind," Justice Frankfurter remarked during the school desegregation cases, "is one of the most complicated problems." Social research is a potential source of such information. Indeed, in the 1960s and 1970s, with activist courts at the forefront of social reform, the field of law and social science came of age. But for all the recent activity and scholarship in this area, few books have attempted to create an intellectual framework, a systematic introduction to applied social-legal research. Social Research in the Judicial Process addresses this need for a broader picture. Designed for use by both law students and social science students, it constructs a conceptual bridge between social research (the realm of social facts) and judicial decision making (the realm of social values). Its unique casebook format weaves together judicial opinions, empirical studies, and original text. It is a process-oriented book that teaches skills and perspectives, cultivating an informed sensitivity to the use and misuse of psychology, social psychology, and sociology in apellate and trial adjudication. Among the social-legal topics explored are school desegregation, capital punishment, jury impartiality, and eyewitness identification. This casebook is remarkable for its scope, its accessibility, and the intelligence of its conceptual integration. It provides the kind of interdisciplinary teaching framework that should eventually help lawyers to make knowledgeable use of social research, and social scientists to conduct useful research within a legally sophisticated context.
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Social Science, Social Policy, and the Law

Patricia Ewick

Russell Sage Foundation, 1999

Social science has been an important influence on legal thought since the legal realists of the1930s began to argue that laws should be socially workable as well as legally valid. With the expansion of legal rights in the 1960s, the law and social science were bound together by an optimistic belief that legal interventions, if fully informed by social science, could become an effective instrument of social improvement. Legal justice, it was hoped, could translate directly into social justice. Though this optimism has receded in both disciplines, social science and the law have remained intimately connected. Social Science, Social Policy, and the Law maps out this new relationship, applying social science to particular legal issues and reflecting upon the role of social science in legal thought. Several case studies illustrate the way that the law is embedded within the tangled interests and incentives that drive the social world. One study examines the entrepreneurialism that has shaped our systems of punishment from the colonial practice of deportation to today's privatized jails. Another case shows how many of those who do not qualify for legal aid cannot afford an effective legal defense with the consequence that economic inequality leads to inequality before the law. Two other studies look at the mixed results of legal regulation: the failure of legal safeguards to stop NASA's fatal 1986 Challenger launch decision, and the complicated effects of regulations to curb conflicts of interest in law firms. These two cases demonstrate that the law's effectiveness can depend, not only on how it is drafted, but also on how well it harmonizes with pre-existing social norms and patterns of self-regulation. The contributors to this volume share the belief that social science can and should influence legal policymaking. Empirical research is necessary to offset anecdotal evidence and untested assertions. But research that is acceptable to the academy may not stand up in court, and, as a result, social science does not always get a sympathetic hearing from legal decision makers. The relationship between social science and the law will always be complex; this volume takes a lead in showing how it can nonetheless be productive.
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Society And Legal Change 2Nd Ed

Alan Watson, foreword by Paul Finkelman

Temple University Press, 2001

In this first U.S. edition of a classic work of comparative legal scholarship, Alan Watson argues that law fails to keep step with social change, even when that change is massive. To illustrate the ways in which law is dysfunctional, he draws on the two most innovative western systems, of Rome and England, to show that harmful rules continue for centuries. To make his case, he uses examples where, in the main, "the law benefits no recognizable group or class within the society (except possibly lawyers who benefit from confusion) and is generally inconvenient or positively harmful to society as a whole or to large or powerful groups within the society."

Widely respected for his "fearless challenge of the accepted or dominant view and his own encyclopedic knowledge of Roman law" (The Encyclopedia of Historians and Historical Writing), Watson considers the development of law in global terms and across the centuries. His arguments centering on how societies borrow from other legal systems and the continuity of legal systems are particularly instructive for those interested in legal development and the development of a common law for the European Union.

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Still a Hollow Hope

State Power and the Second Amendment

Anthony D. Cooling

University of Michigan Press, 2022

The U.S. Supreme Court increasingly matters in American political life when those across the political spectrum look at the Court for relief from policies they oppose and as another venue for advancing their own policy agendas. However, the evidence is mounting, to include this book in a big way, that courts are more of a sideshow to the culture war. While court decisions, especially Supreme Court decisions, do have importance, the decisions emanating from the Court reflect social, cultural, and political change that occurred long prior to their decision ever being made.

This book tests how much political and social change has been made primarily through Gerald Rosenberg’s framework from his seminal work, The Hollow Hope: Can Courts Bring About Social Change, but it also utilizes Daniel Elazar’s Political Culture Theory to explain state level variations in political and social change. The findings indicate that while courts are not powerless institutions, reformers will not have success unless supported by the public and the elected branches, and most specifically, that preexisting state culture is a determining factor in the amount of change courts make. In short, federalism still matters.

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TASTE

Andrea Pavoni, Danilo Mandic, Caterina Nirta and Andreas Philippopoulos-Mihalopoulos

University of Westminster Press, 2018

Taste usually occupies the bottom of the sensorial hierarchy, as the quintessentially hedonistic sense, too close to the animal, the elemental and the corporeal, and for this reason disciplined and moralised. At the same time, taste is indissolubly tied to knowledge. To taste is to discriminate, emit judgement, enter an unstable domain of synaesthetic normativity where the certainty of metaphysical categories begins to crumble. This second title in the ‘Law and the Senses’ series explores law using taste as a conceptual and ontological category able to unsettle legal certainties, and a promising tool whereby to investigate the materiality of law’s relation to the world. For what else is law’s reduction of the world into legal categories, if not law’s ingesting the world by tasting it, and emitting moral and legal judgements accordingly? Through various topics including coffee, wine, craft cider and Japanese knotweed, this volume explores the normativities that shape the way taste is felt and categorised, within and beyond subjective, phenomenological and human dimensions. The result is an original interdisciplinary volume – complete with seven speculative ‘recipes’ – dedicated to a rarely explored intersection, with contributions from artists, legal academics, philosophers, anthropologists and sociologists.
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TOUCH

Caterina Nirta, Danilo Mandic, Andrea Pavoni and Andreas Philippopoulos-Mihalopoulos

University of Westminster Press, 2020

Described by Aristotle as the most vital of senses, touch contains both the physical and the metaphysical in its ability to express the determination of being. To manifest itself, touch makes a movement outwards, beyond the body, and relies on a specific physical involvement other senses do not require: to touch is already to be active and to activate. This fundamental ontology makes touch the most essential of all senses.

This volume of ‘Law and the Senses’ attempts to illuminate and reconsider the complex and interflowing relations and contradictions between the tactful intrusion of the law and the untactful movement of touch. Compelling contributors from arts, literature and social science disciplines alongside artist presentations explore touch’s boundaries and formal and informal ‘laws’ of the senses. Each contribution unveils a multi-faceted new dimension to the force of touch, its ability to form, deform and reform what it touches. In unique ways, each of the several contributions to this volume recognises the trans-corporeality of touch to traverse the boundaries on the body and entangle other bodies and spaces, thus challenging the very notion of corporeal integrity and human being.

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The Common Place of Law

Stories from Everyday Life

Patricia Ewick and Susan S. Silbey

University of Chicago Press, 1998

Why do some people not hesitate to call the police to quiet a barking dog in the middle of the night, while others accept the pain and losses associated with defective products, unsuccesful surgery, and discrimination? Patricia Ewick and Susan Silbey collected accounts of the law from more than four hundred people of diverse backgrounds in order to explore the different ways that people use and experience it. Their fascinating and original study identifies three common narratives of law that are captured in the stories people tell.

One narrative is based on an idea of the law as magisterial and remote. Another views the law as a game with rules that can be manipulated to one's advantage. A third narrative describes the law as an arbitrary power that is actively resisted. Drawing on these extensive case studies, Ewick and Silbey present individual experiences interwoven with an analysis that charts a coherent and compelling theory of legality. A groundbreaking study of law and narrative, The Common Place of Law depicts the institution as it is lived: strange and familiar, imperfect and ordinary, and at the center of daily life.
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The Hollow Hope

Can Courts Bring About Social Change?

Gerald N. Rosenberg

University of Chicago Press, 1991

Liberals have acclaimed, and conservatives decried, reliance on courts as tools for changes. But while debate rages over whether the courts should be playing such a legislative role, Gerald N. Rosenberg poses a far more fundamental question—can courts produce political and social reform?

Rosenberg presents, with remarkable skill, an overwhelming case that efforts to use the courts to generate significant reforms in civil rights, abortion, and women's rights were largely failures.

"The real strength of The Hollow Hope . . . is its resuscitation of American Politics—the old-fashioned representative kind—as a valid instrument of social change. Indeed, the flip side of Mr. Rosenberg's argument that courts don't do all that much is the refreshing view that politics in the best sense of the word—as deliberation and choice over economic and social changes, as well as over moral issues—is still the core of what makes America the great nation it is. . . . A book worth reading."—Gary L. McDowell, The Washington Times

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The Hollow Hope

Can Courts Bring About Social Change?

Gerald N. Rosenberg

University of Chicago Press, 2023

Presents a powerful argument for the limitations of judicial action to support significant social reform—now updated with new data and analysis.
 
Since its first publication in 1991, The Hollow Hope has spurred debate and challenged assumptions on both the left and the right about the ability of courts to bring about durable political and social change. What Gerald N. Rosenberg argued then, and what he confirms today through new evidence in this edition, is that it is nearly impossible to generate significant reforms through litigation: American courts are ineffective and relatively weak, far from the uniquely powerful sources for change they are often portrayed to be.
 
This third edition includes new data and a substantially updated analysis of civil rights, abortion rights and access, women’s rights, and marriage equality. Addressing changes in the political and social environment, Rosenberg draws lessons from the re-segregation of public schools, victories in marriage equality, and new obstacles to abortion access. Through these and other cases, the third edition confirms the power of the book’s original explanatory framework and deepens our understanding of the limits of judicial action in support of social reform, as well as the conditions under which courts do produce change. Up-to-date, thorough, and thought-provoking, The Hollow Hope remains vital reading.
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The Hollow Hope

Can Courts Bring About Social Change? Second Edition

Gerald N. Rosenberg

University of Chicago Press, 2008

In follow-up studies, dozens of reviews, and even a book of essays evaluating his conclusions, Gerald Rosenberg’s critics—not to mention his supporters—have spent nearly two decades debating the arguments he first put forward in The Hollow Hope. With this substantially expanded second edition of his landmark work, Rosenberg himself steps back into the fray, responding to criticism and adding chapters on the same-sex marriage battle that ask anew whether courts can spur political and social reform.
            Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it’s nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they’re often portrayed as. Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile.
            Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation the national debate it sparked seventeen years ago.
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The Legal Analyst

A Toolkit for Thinking about the Law

Ward Farnsworth

University of Chicago Press, 2007

There are two kinds of knowledge law school teaches: legal rules on the one hand, and tools for thinking about legal problems on the other. Although the tools are far more interesting and useful than the rules, they tend to be neglected in favor of other aspects of the curriculum. In The Legal Analyst, Ward Farnsworth brings together in one place all of the most powerful of those tools for thinking about law.

From classic ideas in game theory such as the “Prisoner’s Dilemma” and the “Stag Hunt” to psychological principles such as hindsight bias and framing effects, from ideas in jurisprudence such as the slippery slope to more than two dozen other such principles, Farnsworth’s guide leads readers through the fascinating world of legal thought. Each chapter introduces a single tool and shows how it can be used to solve different types of problems. The explanations are written in clear, lively language and illustrated with a wide range of examples.

The Legal Analyst is an indispensable user’s manual for law students, experienced practitioners seeking a one-stop guide to legal principles, or anyone else with an interest in the law.

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The Legal System

A Social Science Perspective

Lawrence M. Friedman

Russell Sage Foundation, 1975

Examines the impact of social forces on the legal system and how the rules and orders promulgated by that legal system affect social behavior. Dr. Friedman explores the relationship between class structure and the work of legal systems in the light of the existing literature and analyzes the influence of the cultural elements contained in a legal system. In a comprehensive analysis of the concept of legal culture, the author sheds new light on the development of our legal norms and the types of legal systems which prevail in a democracy.
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Total Justice

Lawrence M. Friedman

Russell Sage Foundation, 1985

It is a widely held belief today that there are too many lawsuits, too many lawyers, too much law. As readers of this engaging and provocative essay will discover, the evidence for a "litigation explosion" is actually quite ambiguous. But the American legal profession has become extremely large, and it seems clear that the scope and reach of legal process have indeed increased greatly. How can we best understand these changes? Lawrence Friedman focuses on transformations in American legal culture—that is, people's beliefs and expectations with regard to law. In the early nineteenth century, people were accustomed to facing sudden disasters (disease, accidents, joblessness) without the protection of social and private insurance. The uncertainty of life and the unavailability of compensation for loss were mirrored in a culture of low legal expectations. Medical, technical, and social developments during our own century have created a very different set of expectations about life, again reflected in our legal culture. Friedman argues that we are moving toward a general expectation of total justice, of recompense for all injuries and losses that are not the victim's fault. And the expansion of legal rights and protections in turn creates fresh expectations, a cycle of demand and response. This timely and important book articulates clearly, and in nontechnical language, the recent changes that many have sensed in the American legal system but that few have discussed in so powerful and sensible a way. Total Justice is the third of five special volumes commissioned by the Russell Sage Foundation to mark its seventy-fifth anniversary.
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When Formality Works

Authority and Abstraction in Law and Organizations

Arthur L. Stinchcombe

University of Chicago Press, 2001

In this innovative exploration of the concept of formality, or governing by abstraction, Arthur Stinchcombe breathes new life into an idea that scholars have all but ignored in recent years.

We have come to assume that governing our social activities by advance planning—by creating abstract descriptions of what ought to happen and adjusting these descriptions as situations change—is not as efficient and responsive as dealing directly with the real substance of the situation at hand. Stinchcombe argues the opposite. When a plan is designed to correct itself and keep up with the reality it is meant to govern, it can be remarkably successful. He points out a wide range of examples where this is the case, including architectural blueprints, immigration law, the construction of common law by appeals courts, Fannie Mae's secondary mortgage market, and scientific paradigms and programs.

Arguing that formality has been misconceived as consisting mainly of its defects, Stinchcombe shows how formality, at its best, can serve us much better than ritual obedience to poorly laid plans or a romantic appeal to "real life."
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Working Law

Courts, Corporations, and Symbolic Civil Rights

Lauren B. Edelman

University of Chicago Press, 2016

Since the passage of the Civil Rights Act, virtually all companies have antidiscrimination policies in place. Although these policies represent some progress, women and minorities remain underrepresented within the workplace as a whole and even more so when you look at high-level positions. They also tend to be less well paid. How is it that discrimination remains so prevalent in the American workplace despite the widespread adoption of policies designed to prevent it?

One reason for the limited success of antidiscrimination policies, argues Lauren B. Edelman, is that the law regulating companies is broad and ambiguous, and managers therefore play a critical role in shaping what it means in daily practice. Often, what results are policies and procedures that are largely symbolic and fail to dispel long-standing patterns of discrimination. Even more troubling, these meanings of the law that evolve within companies tend to eventually make their way back into the legal domain, inconspicuously influencing lawyers for both plaintiffs and defendants and even judges. When courts look to the presence of antidiscrimination policies and personnel manuals to infer fair practices and to the presence of diversity training programs without examining whether these policies are effective in combating discrimination and achieving racial and gender diversity, they wind up condoning practices that deviate considerably from the legal ideals.
 
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