To what extent has the exercise of administrative power been directed during the course of American history toward highly political ends, such as repaying political debts or furthering the particularistic interests of rich or powerful individuals and groups? Even a cursory review of the facts reveals that the administrative process has not always been highly politicized. When the United States became independent some two centuries ago, magistrates generally sought to use their power to further non-political religious and ethical ends in which nearly all their fellow subjects believed. More than a hundred years later, at the close of the nineteenth century, the ideology of administrative decision-making was similarly an apolitical one, in which administrators sought to resolve disputes and decide upon policies by reasoning deductively from abstract, general principles which nearly all of the nation accepted. The administrative process in the late nineteenth century differed from that of the mid-eighteenth not in the degree of politicization, but in the substantive standards from which administrators reasoned: In the mid-eighteenth century, as I have already suggested, the standards were ultimately religious and ethical, whereas by the end of the nineteenth century they had become basically scientistic and utilitarian.

The landmarks of California resource law were laid down within the turbulent context of “the stampede of 1849 and subsequent years.” From all over the world men came to seek fortune in that “glorious country,” fully expecting government “to use its resources positively to enlarge their opportunities.” But federal policy was in a state of flux when gold was discovered on the public domain. Before 1846 mineral lands had been reserved from sale or pre-emption; federal authorities had attempted simultaneously to expedite development and to raise revenue through a complex set of leasing and regulatory arrangements with private firms. Several factors had impeded effective administration of the program, however, and in 1846 lead, copper, and iron lands had become subject to public sale. The discovery of gold in California, then, found the federal government without an applicable policy and “at a loss for knowledge as how to act.” Public sale of gold-bearing tracts was impossible, given the time necessary for survey and classification. A handful of federal officials did submit—and even tried to secretly impose— various plans for reviving some form of federal intervention. But Californians made it clear that they would stubbornly resist any program likely to forestall rapid exploitation of the public domain, and widespread recognition of the difficulties inherent in administering any policy that would conflict with local interests led to congressional unwillingness to take any action until 1866. In the interim, the State of California deemed it advantageous to take the situation “precisely as it finds it…. It looks to the fact that the General Government permits [miners] to trespass on the public domain without complaint … [and] the State is not the steward, nor bailiff, of the General Government, having in charge the protection of the public property.?

The Law & Society Review enters its second decade with a record of considerable accomplishment. From a fledgling journal, aspiring to create both a new inter-disciplinary focus and a community of scholars, it has grown quantitatively and qualitatively: in size, circulation, and number of manuscripts submitted; and in the wealth of empirical data it reports, the sophistication and comprehensiveness of the theories it presents, and the variety of disciplines it encompasses. By any of these criteria, the Review has attained a position of prominence within the ever expanding ranks of social scientific journals. This is the signal achievement of my predecessors; my primary goal will be to maintain that level of performance.

Social life is inevitably conflictual. Conflict occurs as individuals with different interests, goals, problems and perspectives seek to achieve a maximum share of the values which any society provides. Yet, the inevitability of conflict does not mean that its occurrence is welcomed. In fact, generally the opposite is true. Conflict, once it occurs, is difficult to end. Resolution is elusive because conflicts transform themselves almost as quickly as they can be defined and strategies for dealing with them developed. Nevertheless, in every society there is a wide range of techniques and procedures available to deal with disputes.

American scholarship has lavished most of its attention on appellate courts, paying little attention to courts on the bottom rungs of the ladder. This is true of studies of both past and present courts. But the trial court is the court with the most direct contact with the man in the street, for both civil and criminal matters. Here he meets the law face-to-face. And, although federal courts are certainly important, state trial courts handle by far the larger volume of work.

In 1963 the Italian historiographer Arnaldo Momigliano told an assembly of legal historians that they were gathered to celebrate “a historical event of some importance, the end of history of law as an autonomous branch of historical research.” At least in the historiography of ancient law, he said, “the elimination of history of law as independent history now seems to me to be settled.”

From the beginning of nationhood under the Constitution to the present day, the federal system of American government— what Madison termed “a novelty and a compound,” and what Hamilton declared was “necessarily a compromise of dissimilar interests and inclinations”—has been of profound importance in shaping the nation's economic order. Power has shifted over time between the national government and the constituent state governments; and these structural shifts have had an impact upon policy process and outcomes, as well as upon the economy's institutional framework. The study of federalism has long been, of course, a concern of scholarship in constitutional law, political science, and history. Moreover, historians of American politics have lavished much attention upon the great conflicts of interest groups, parties, and ideologies, from 1787 to the New Deal and after, over the basic question of the extent to which power ought to be centralized in our federal system. And yet no scholarly studies have been specifically devoted to the analysis of federalism as an institutional variable both influencing the development of enterprise in the private sector and influencing economicpolicy processes and the substance of public economic policy. This paper attempts such an analysis. Part I reviews the recent literature on law and economic history, and Part II considers some theoretical issues. Parts III and IV examine historic American federalism in relation to governmental institutions and power, public economic policies, and the dynamics of the economy's private sector.

In order to understand patterns of police behavior in American cities at the turn of the century, it is important to grasp a crucial fact: the police, although they were formally engaged in law enforcement, were little oriented toward legal norms. As late as 1900, when Chicago's police department numbered 3,225 men, there was no organized training. New policemen heard a brief speech from a high-ranking officer, received a hickory club, a whistle, and a key to the call box, and were sent out on the street to work with an experienced officer. Not only were policemen untrained in law, but they operated within a criminal justice system that generally placed little emphasis upon legal procedure. Most of those arrested by the police were tried before local police justices, who rarely had legal training. Those arrested seldom had attorneys, so that no legal defense was made. Thus, there were few mechanisms for introducing legal norms into the street experiences and crime control activities of policemen.

During the past decade there has been a resurgence of interest in the problem of law and social control. Indicative of this interest, a rekindling of an earlier tradition, is the founding of the Law and Society Association and its journal the Law & Society Review, the growth of course offerings both in law schools and social science departments, and the emergence of a rapidly growing body of literature. Research interests in this area, often captured by such terms as impact, compliance, legal effectiveness, and law and social change, have diverged from the traditional preoccupation with the development and meaning of formal legal doctrine and from the more recent behavioral concerns with judicial decisionmaking, to address the broader questions of the effects of law on society at large. While varying in breadth, depth, and precise focus, most of this research treats law as an independent variable and its consequences as the dependent variables, the events caused by the law. In the language of systems theory, the formal legal rules are the “policy outputs” while changes—of whatever scope—are the “policy outcomes.” Although these studies vary from one-shot case histories to projects involving multiple controls and multiple time series analyses, they all tend to conform to this general design.

National debate over the predominance of plea bargaining in the administration of criminal justice in America has become increasingly strident over the past several years. Positions range from the almost unqualified endorsement of plea bargaining practices by no less an authority than the Chief Justice of the United States, through the American Bar Association's (1963) typically moderate proposal for improving procedural safeguards, to the recommendation of total abolition of the practice by the National Advisory Commission on Criminal Justice Standards and Goals (1973). Because of a dearth of hard data concerning the effects of plea bargaining on the criminal justice system, debate over the proposals has tended to produce more heat than light. In the trenchant understatement of one surveyer of the subject, “[s]uch recommendations suffer from insufficient empirical grounding and could benefit from further research on plea bargaining” (Mulkey, 1974: 54).

Ten years ago, in the first issue of this review, Carl A. Auerbach criticized some early statements of an emerging “Berkeley perspective” in the sociology of law (Auerbach, 1966). Selznick, Skolnick, Carlin, and I were chided for proposing in various terms that a central concern of the sociology of law should be to study the social foundations of the ideal of legality (Selznick, 1961; 1968; Skolnick, 1965; Carlin and Nonet, 1968).

In 1821 the Mississippi Supreme Court held that a white person could be indicted for the common law crime of murder when the victim was a slave:

Between the formal law of statute books and appellate courts and the informal law of routine dispositions intervene a variety of actors, exemplified by policemen and insurance adjusters, some of whom have not traditionally been regarded as “legal” actors. However, one of the most important contributions of sociology to the understanding of law has been the demonstration that the attitudes and values of these actors and the pressures embodied in their roles produce a comprehensible divergence between the prescriptions of the formal law and the regularities exhibited in the informal law (Skolnick, 1966; Ross, 1970). This paper discusses some instances of discrepancy between the formal and informal law when formal penalties are suddenly and greatly increased. Its principal hypothesis is that sharp increases in formal penalties tend to be subverted by contrary adjustments in the behavior of those who apply the law. The data to be presented come from four of my studies on the effectiveness of changing traffic laws. As these studies were not designed to test the present hypothesis, their evidence is indirect, and the presentation is exploratory rather than demonstrative.