1 Donald Black, The Behavior of Law (San Diego: Academic Press, 1976); id., Sociological Justice (New York: Oxford University Press, 1989; rev. ed. 1993). Parenthetical references to Black's three works are cited in text with the following short titles: “Right and Wrong,”“Behavior,” and “Justice.” Google Scholar

2 Emile Durkheim, The Division of Labor in Society (orig. pub. 1893), trans. George Simpson (New York: Free Press, 1964); id., Suicide: A Study in Sociology (orig. pub. 1897), trans. John A. Spaulding & George Simpson (Glencoe: Free Press, 1951). Black (Right and Wrong 74-94) also refers to Durkheim's Elementary Forms of the Religious Life (orig. pub. 1912), trans. Joseph Ward Swain (New York Collier Books, 1961), when he dicusses the “elementary forms” of conflict management or social control.Google Scholar

3 David Greenberg is one such critic: “Black's work must be taken, then, as a set of empirical generalizations of uncertain meaning, whose range of validity is unknown, and that in some instances appears to be wrong.” David F. Greenberg, “Donald Black's Sociology of Law: A Critique,” 17 Law & Soc'y Rev. 337, 363 (1983). There is a major problem, however, with Greenberg's strict standard in evaluating Black's contribution, which is whether it is logically exhaustive, measurable in all relevant parts, with clear validity tests. This same standard would force him to say exactly the same thing about every other social theorist's contributions, including those of the classics as well as those of the three contemporaries I mentioned earlier. In fact, this is precisely what Greenberg does, albeit in passing (id. at 364). After this, he then concedes a few points to “the ambitiousness of Black's effort” (id. at 364-66). See Larry A. Hembroff, “The Seriousness of Acts and Social Contexts: A Test of Black's Theory of the Behavior of Law,” 93 Am. J. Sac. 322, 343 (1987) for a more sympathetic reading of Black: “Overall, the results [of Hembroff's testing of several of Black's major propositions] generally support Black's theory. Nevertheless, a couple of problems areas for the theory also appear.”Google Scholar

4 Greenberg, 17 Law & Soc'y Rev., at 338, by contrast, believes his criticisms “vitiate” Black's position.Google Scholar

5 Compare to Greenberg, 17 Law & Soc'y Reu., at 342.Google Scholar

6 Black also emphasized this in his opening presentation in Arizona. What is curious is that he has never responded to Greenberg, id., who insists that Black violates the same tenets of scientific method that Black himself espouses. The problem for Greenberg is to name social theorists whose works exhibit fidelity to these tenets, and Greenberg is free to cite his own works if he believes they measure up.Google Scholar

7 Also see id. at 344-49.Google Scholar

8 Jürgen Habermas, On the Logic of the Sod Sciences (Cambridge, Mass.: MIT Press, 1967, 1988); Karl-Otto Apel, Towards a Transformation of Philosophy (London: Routledge & Kegan Paul, 1990).Google Scholar

9 Greenberg illustrates the problem that Black's neglect of effects creates for his proposition that “the law varies directly with stratification” (Black, Behavior at 13): “Tax laws, for example, surely have some effect on stratification.” Greenberg, 17 Law & Soc'y Reu., at 340; also see 343. 365.Google Scholar

10 I say this even as I am aware that more publicized or notorious criminal cases differ from run-of-the-mill cases. My point not Black's is that at these exceptional times criminal courts may momentarily assume qualities of deliberative bodies, and everyone involved knows that these are exceptional occasions as do outsiders who are more than casual observers. Yet, see Greenberg, 17 Law & Soc'y Rev. at 356-61, for criticisms of Black's propositions.Google Scholar

11 Charles E. Silberman, Criminal Violence, Criminal Justice 402-17 (New York: Random House, 1978) (“Silberman, Criminal Violence”).Google Scholar

12 Id. at 346; this quotation spans three paragraphs.Google Scholar

13 Roy B. Flemming, Peter F. Nardulli, & James Eisenstein, The Craft of Justice: Politics and Work m Criminal Court Communities 79-104 (Philadelphia: University of Pennsylvania Press, 1992).CrossRefGoogle Scholar

14 Id. at 89-90.Google Scholar

15 See Silberman, Criminal Violence 365 on courts' parochial norms and values.Google Scholar

16 See also Right and WTOng 3, 22 n.6).Google Scholar

17 In saying this, I do not have in mind John Braithwaite's notion of reintegrative shaming; Crime, Shame and Reintegration (New York: Cambridge University Press, 1989). Braithwaite identifies and delimits his use of reintegration by focusing exclusively on getting violent criminals to stop committing crimes of violence. He does not distinguish between whether integration as opposed to control is increasing in scope across a social order.Google Scholar

18 One major source of disputes within corporations and organizations is managers' and administrators' ongoing efforts to increase the power of their positions at the expense of every other corporate and organization constituent. Managers' and administrators' interests in enhancing their positions are analytically distinguishable from their self-interests as individuals, say, their self-interests in shirking or goldbricking at others' expense. Legal scholars use the terms “positional interests,”“positional power,” and “positional conflicts” in ways that are consistent with sociologists' uses of these and related concepts. For instance, network analyst David Knoke emphasizes that individuals may exercise “positional power” and yet not be subjectively aware that they are doing so. David Knoke, Political Networks: The Structural Perspective 9-10 (New York: Cambridge University Press, 1990). Mark Granovetter prefers the term “embeddedness” to the term “position,” but his point is consistent with Knoke's: He studies individuals' “relational embeddedness” within their local settings, and then he studies the latter's “structural embeddedness” within larger organizational and institutional contexts. Mark Granovetter, “The Old and the New Economic Sociology: A History and an Agenda,” in Roger Friedland & A. F. Robertson, eds., Beyond the Marketplace: Rethinking Economy and Society 99 (New York: Aldine de Gruyter, 1990). French sociologist Pierre Bourdieu also uses the term “position” in ways that Knoke, Granovetter, and American legal scholars can support: “Interacting individuals bring all their properris into the most circumstantial interactions, and their relative positions in the social struture (or in a specialized field) govern their positions in the interaction.” Pierre Bourdieu, Distinction: A Sod Critique of the Judgment of Taste 578-79 11.25 (Cambridge: Harvard University Press, 1979). Bourdieu explicitly distinguishes position from the broader terms field and market. Certainly he would accept that position must also be distinguished from the narrower terms self-interest and subjective interest.Google Scholar

19 Actually, Black concedes (without using this terminology) that a “social structure of the case” cannot address the institutional externalities of existing criminal courts, nor the institutional externalities of his ow1 props for reforming aid courts (e.g., Justice at 4, 118 n.49). Also, Black's proposition that “compensation is a direct function” of subordinate groups running afoul of elite groups (“upward cases”) directly contradicts the fiduciary law tradition. The courts cite the latter when they sanction elite groups who take advantage of subordinates' positions of dependence within structured situations. For instance, the corporate judiciary does not permit the majority owners of a close corporation, a privately traded corporation, to buy out the stock of one of its own members unless it offers the same opportunity to all other owner-stockholders.Google Scholar

20 E.g., Tyler Cowen, “Public Goods and Externalities: Old and New Perspectives,” in Cowen, ed., The Theory of Market Failure: A Critical Examination 1-26 (Fairfax, Va.: George Mason University Press, 1988).Google Scholar

21 Milton Friedman, Capitalism and Freedom 30 (Chicago: University of Chicago Press, 1962, 1982) (“Friedman, Capitalism and Freedom”).CrossRefGoogle Scholar

22 Id. at 30-32; Harold Demsetz, Ownership, Control, and the Firm, vol. 1: The Organization of Economic Activity 31 (Oxford: Basil Blackwell, 1988).Google Scholar

23 Friedman, Capitalism and Freedom 31, 30.Google Scholar

24 Id. at 31-32. Friedman (at 32) goes on to say:Google Scholar

[B]ut this difficulty is present in governmental activity as well. It is hard to know when neighborhood effects are sufficiently large to justify particular costs in overcoming them and even harder to distribute the costs in an appropriate fashion. Consequently, when government engages in activities to overcome neighborhood effects, it will in part introduce an additional set of neighborhood effects by failing to charge or to compensate individuals properly. Whether the original or the new neighborhoods effects are the more serious can only be judged by the facts of the individual case, and even then, only very approximately.Google Scholar

25 This term calls to mind the term institutional economics. Yet, with notable exceptions such as Joseph Schumpeter and Karl Polanyi, contributors to institutional economics typically fail to address the relationship between (a) the governance and behavior of corporations and other intermediary associations and (b) the direction of change of the larger social order.Google Scholar

26 For how common such behavior is, see John Braithwaite, Corporate Crime in Pharmaceutical Industry (London: Routledge & Kegan Paul, 1984); id., “White Collar Crime,” 11 Ann. Rev. SOC. 1 (1985).CrossRefGoogle Scholar

27 Friedman, Capitalism and Freedom 31.Google Scholar

28 Id. at 32.Google Scholar

29 And, for that matter, of family courts. It would take me too far afield to bring these courts into the discussion, but this would complicate matters for Black as much as my discussion of corporate courts.Google Scholar

30 “Corporate governance” refers to how decisions are made within corporations and, more importantly, to how disputes are settled between directors, managers, shareholders, bondholders, suppliers, employees, retirees, and other corporate constituents.Google Scholar

31 Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1964, 1969).Google Scholar

32 David Sciulli, “The End of Corporate Governance: A Study in Societal Constitutionalism” (Texas A&M University), a book manuscript currently under review.Google Scholar

33 This matter of intersubjectivity is independent of the matter of acceptance. People may well accept, in their own interests, the outcomes of laws and mechanisms of social control that they themselves fail to recognize and understand in common. That the social orders of contemporary Italy, Japan, Germany, and Spain or, for that matter, those of France, England, and the United States are somehow intrinsically or inherently benign is something that Black and others should be willing to state explicitly. If they are unwilling to state this explicitly, then they should at least be willing to state explicitly that the issue of institutional externalities, of whether a given modem social order is or remains relatively benign, is strictly normative, that it cannot be studied empirically in value-neutral ways. With this, Black will move from what I call complacent liberalism to what can be called indeifferent nihilism. I show this below.Google Scholar

34 This can be Seen also when Black discusses self-help (i.e., people killing those who insult them or otherwise sanctioning others' behavior). Here Black concedes that deterrence is unlikely “to the degree that people feel morally obligated to commit crimes” (Right and Wrong at 37). Note how Black brings actors' subjective beliefs into the picture here, and also how this can be extended to the problem of distinguishing civil disobedience from criminal behavior.Google Scholar

35 The same sense that something has gone awry in Black's conceptual apparatus surfaces in the second chapter of Sociological Justice. In the opening chapter Black repeats his argument in The Behavior of Law that the scientific study of law is tied to observation, not to concerns about whether law is effective or how it effects the larger social order. Yet, in introducing his second chapter, Black says it demonstrates how his legal sociology “can increase the effectiveness of lawyers, prosecutors, or anyone else who ventures into the world of law”Justice at 22).Google Scholar