8
Putting Law Back into the Sociology of Lawyers

RICHARD L. ABEL AND PHILIP S. C. LEWIS

Although the Working Group for Comparative Study of Legal Professions did not explicitly adopt a common theoretical framework when it began this project, the national reports in volumes 1 and 2 focus mostly on issues regarding the history and sociology of occupations (of which professions are a subcategory). We knew, of course, that these did not exhaust the range of interesting questions. However, we felt that they formed a necessary foundation for further inquiry. Consequently, we concentrated on such questions as the number of lawyers, their backgrounds and education, barriers to entry and limitations on practice, functional subdivisions and social stratification, career paths, structures of practice, and collective organization and governance. We still need to know more about these subjects, both in the twenty countries we have studied and even more in others, particularly in the socialist and third worlds.

In the present volume, however, some of our authors have shifted their gaze from lawyers as an occupational category to what lawyers do, that is, to the sociology of law. They have considered the consequences for the legal profession of the fact that women have been entering in almost equal numbers with men for more than a decade, the possibility that lawyers may be members of a "new class" that will play a decisive role in the future direction of the economy and polity, the relationship between lawyers and the state (as this varies across nations, through revolutionary ruptures, and in the emerging corporatist configurations), and what it means for lawyers to represent.

In this concluding chapter we want to frame a number of questions about lawyers that remain unanswered—often unasked—in the hope of suggesting fruitful paths for further research, and we want to encourage the reorientation initiated by our contributors. Instead of tracing the ways in which lawyers resemble other professionals (indeed, all other workers), we want to emphasize what makes them distinctive by putting law back

into the sociology of lawyers. We do not offer a fully developed theory or even a comprehensive research agenda. Rather, we will concentrate on three areas we believe should be central: what lawyers know; what they do; and how they relate to the society, polity, and economy. Although we discuss these topics separately, they obviously are closely interrelated: knowledge with activity; social structure, state formation, and economy with each other; and all three with what lawyers know and do.

LAWYERS IN THE ECONOMY, SOCIETY, AND POLITY

COMPARISONS ACROSS SOCIETIES

Although some sociologists of law have explored the relationship between the emergence of legal specialists and social, economic, and political structures, usually from an evolutionary perspective (Hoebel, 1954; Nagel, 1962; Schwartz & Miller, 1964; Black, 1976, 1984; Unger, 1976; Newman, 1983; Abel 1984; Griffiths, 1984), hardly anyone has extended this inquiry to compare the wide variety of ways in which precapitalist, capitalist, and socialist economies use law and lawyers. (Nonet and Selznick [1978] and more recently Teubner [1988] have explored varieties of law under advanced capitalism.) Indeed, the only effort with which we are familiar is Robin Luckham's magisterial but unfortunately neglected overview (1981a ). His analysis is far too rich and global to be summarized here; the most we can do is sketch some of the connections he suggests and indicate how they might be studied. In doing so, we want to stress the reflexive relationship between law and lawyers on one hand and other social, political, and economic institutions on the other hand: the former shape the latter at the same time they are shaped by them. It also is important to avoid conflating law and lawyers: some legal systems dispense with representatives altogether or use those without legal training, and lawyers perform tasks that bear little connection to law.

Economies differ greatly in the use they make of law and lawyers. Those in which the productive units are relatively unspecialized and self-sufficient use little law: isolated bands of hunter-gatherers might be an extreme example (Marshall, 1960). As units specialize and trade increases, law becomes more important. Stable trading relationships among a limited number of partners have much less call for law than do transitory exchanges between numerous anonymous traders (Macaulay, 1963; Wisconsin Law Review, 1985). Law becomes even more important for mediating trade when the parties lack a common culture—as has been happening recently with the expansion of international markets for raw materials, commodities, labor, and capital. The common culture of lawyers may make

a vital contribution here (even if they belong to different national professions). Economies that are more dispersed (containing many small producers and consumers) need more law to mediate interaction than do economies that are highly concentrated. In the latter, the few major actors can reach informal understandings with each other, while their economic power allows them to impose their will on smaller actors. Yet, as economic units grow larger, more internally differentiated, and more hierarchical, they may need more law for purposes of internal governance, especially if there is a separation of ownership and control.

The sectoral composition of the economy also may be relevant, at least in defining which property relations will be governed by law, if not the quantity of law and lawyers. We can trace the shifting emphasis among land, mineral rights, patents for commodities and manufacturing processes, copyrights, rights to pollute or to be free from pollution, rights to control markets or to enter and compete freely, and contractual rights. It seems plausible that law becomes more significant to the extent that property rights are established by private agreements rather than fixed by tradition or dearly demarcated by physical boundaries. Thus, the postindustrial economy characterized by a rapidly expanding service sector may increase the demand for legal services. Similarly, the relationship between labor and capital may affect the role of law: control over labor sometimes is secured by political influence, brute force, or economic necessity; it is difficult to control capital except through legal forms. Finally, the nature and extent of state involvement in the economy is extremely important. Notwithstanding the claims of laissez-faire ideologues, law is essential to construct and operate even the "free" market. And notwithstanding the promises of Marxist theoreticians (Pashukanis, 1980), no socialist regime has been able to replace law entirely by administration. Nevertheless, it may be the mixed economies characteristic of most contemporary societies that have the greatest need for law: to regulate economic interaction among "private" actors, redistribute resources, and legitimate the economic activities of the state (while also exposing them to private challenge).

If economies vary in their need for law and lawyers, how do lawyers shape those economies? First, they consume surplus. Although this evokes bitter complaints (suggesting that clients often view lawyers' efforts as superfluous makework) and undoubtedly hurts individuals, all the evidence suggests that the cost of lawyers and litigation is an insignificant proportion of the total surplus. Even in the United States—generally described as the most overlawyered and litigious country in the world—legal services represent less than one percent of the gross national product—a tenth of the proportion spent on medical care. Second, lawyers claim to create the predictability necessary to permit the exchange of commodities, labor, and capital. Although this is an essential element in the legitimation offered by

most legal professions, it is empirically undemonstrated. There are other ways for economic actors to increase predictability: reciprocity (which scholars from Mead and Malinowski to Macaulay have shown is far more important than state sanctions), political influence (obtained from reciprocal favors or material help), bribery, or physical force. For all their other faults, command economies, which use many fewer lawyers, are at least as predictable as free markets. Moreover, it is unclear whether lawyers enhance certainty and predictability or rather aggravate uncertainty and unpredictability. Even if they foster the former, there are many ways of doing so, as Max Weber found in trying to resolve the "England problem" (how a system lacking the formal rationality of civil law could be the locus of the most advanced capitalist economy of the nineteenth century) (Sugarman, 1986; Ewing, 1987). Finally, lawyers seem to accelerate the concentration of economic resources (whether land, capital, labor, or intangible property) by amplifying existing economic power. At the same time, they allow economic upstarts to challenge entrenched interests, as the industrial, commercial, and financial bourgeoisie displaced the landed aristocrats. Also, they redistribute and disperse wealth horizontally when they engage in intraclass disputes over property (especially inheritance) and in competition for markets or corporate control.

Polities also differ in the extent to which they make use of law and lawyers. One of the most common distinctions is respect for the "rule of law" (the Rechtsstaat). Autocrats who govern by flat, often supported by military power, have much less need for law and lawyers, whom they deliberately suppress. Yet, even they need subordinates to control large populations and often rely on those with legal training, who, in turn, may sympathize when citizens couch their claims in legal form. There are other surrogates for law besides force; ideology, both religious and secular, is one of the most powerful. This is particularly visible at the early stages of postrevolutionary regimes, whether Moslem or Marxist. Yet, the experiences of the Soviet Union, Cuba, and China all demonstrate that revolutionary fervor soon yields to routine governance, in which legality appears to play an increasing role. The size of the state, the heterogeneity of its population (including its class composition), and the pace of change all are relevant: very small, stable, homogeneous societies may be able to govern themselves through consensus and tradition. An intentional community like the Israeli kibbutz represents a limiting case (see the exchange between Schwartz [1954, 1976] and Shapiro [1976, 1985]). Larger, more heterogeneous societies may diminish their reliance on law through decentralization and forms of indirect rule. At the opposite extreme lie the federal state and the colonial regime, which seek to elicit obedience from people who owe no loyalty beyond what can be inspired by legality. Robinson and Scaglion (1987) have sought to demonstrate the connection between the

rise of class opposition and the emergence of specialized police forces. We can generalize the relationship between state and economy, mentioned above: the more the state seeks to regulate civil society—social relations and cultural beliefs as well as economic production and exchange—the more need it will have of law.

Even in large heterogeneous societies experiencing rapid change, law is not the only mechanism of governance. A high degree of consensus on means and ends (or at least acquiescence in the face of overwhelming force) may permit the state to engage directly in administration rather than having to rely on law; examples might include postrevolutionary societies and third world countries intent on rapid development (Ghai, 1976). If there is no consensus on ends but enough agreement on how to reach them to avoid civil war, then politics may be the central arena—elections to and lobbying within national and local legislatures and executives as well as extraparliamentary activities (demonstrations, squats, occupations); much of western Europe illustrates this category. If there is consensus about ends or an inability to discuss them because the culture does not permit it or the political institutions are paralyzed, then legal institutions and processes become central arenas and lawyers essential actors; the United States is the preeminent example.

How do lawyers, in turn, shape polities? We really do not know the answer to this question. Does it make a difference whether civil servants or elected politicians are university graduates in literature, political theory, economics, or law? There is some justification for the cynical view that the qualification serves more to justify privilege than to confer competence. In Gilbert and Sullivan's "H.M.S. Pinafore," The Rt. Hon. Sir Joseph Porter, K.C.B., expatiates at length on how his career as an attorney qualified him to become First Lord of the Admiralty and concludes with the advice: "Stick close to your desk and never go to sea/And you all may be rulers of the Queen's Navee." Yet, legal training may imbue graduates with fidelity to legality. An Israeli Attorney General insisted on investigating murders by the Shin Bet, to the point where he was dismissed by the Prime Minister; a U.S. Attorney General refused to discharge the special prosecutor investigating the Watergate scandal and was fired by the President. How much of this behavior can be attributed to the office—which is supposed to embody legality—and how much to the background or training of its occupant? There is some evidence that professional identity strengthens the "independence" of the judiciary and its willingness to defy or at least obstruct grossly illegal acts by the more political branches. South African judges have blocked the destruction of African rural and urban settlements and temporarily stayed the execution of death sentences; Argentine judges have pursued inquiries into military atrocities in the "dirty war." Finally, individual private practitioners (although rarely more than a tiny minority)

and bar associations sometimes challenge the state in the name of law (Luckham, 1981b ).

Social structural variables (in addition to those that are primarily economic and political) also may affect the role of law and lawyers. Here the principal issue is the size and composition of the social unit and the nature and strength of the nonlegal "glue" holding it together. The process called "modernization" generally is seen as a progressive dissolution of collectivities based on kinship, locality, language, ethnicity, gender, and age, within which most social interaction previously occurred. Authority inside those collectivities was traditional or charismatic rather than legal. As those collectivities lost that authority and their members increasingly interacted with outsiders, state law became essential to mediate conflict and to govern. Yet we know that many of these traditional bonds (particularly within the family) never succumbed to the individualistic assault of capitalism, others have revived in recent years (such as race, ethnicity, religion, and gender), and new ones have emerged (class, especially within the workplace, age cohorts, and ideological groupings). Although state law may not directly rule these dyads or collectivities, it shapes (and is shaped by) informal or unofficial legality within them (Galanter, 1981; Macaulay, 1987a ).

The role of law and lawyers in shaping social structure again is historically and culturally specific. There can be no doubt that individuals mobilized law in their assault on collectivities. Nuclear families challenged the authority of villages, landlords, and lineages over land. Individuals insisted on both choosing spouses and terminating marriages by themselves. Individual producers of goods and services resisted the control of the guild. Religious dissenters attacked the authority of the church. Yet, it is equally true that law helped to create some of the most powerful collectivities in the modem world, notably the joint stock corporation and its subsequent elaborations.

Finally, cultural variables obviously influence the use of law and lawyers (just as they do medicine and physicians; see Payer [1988]). Where appropriate behavior is strongly constrained by tradition (rather than structured by economic forces or directed by the state), lawyers may be irrelevant. In some precapitalist societies, for instance, only certain economic exchanges are conceivable, entitlement to property is clearly defined by group membership, inheritance follows invariant patterns, injuries mandate fixed payments, and kinship rules determine who may marry, rights to children, and property prestations (Gluckman, 1965). Where appropriate behavior is prescribed by religion as interpreted by a priestly hierarchy, its members perform many of the roles we attribute to lawyers (although their authority over economic life is limited, except perhaps within Islam). Culture also structures social inequality: which advantages are valued, which are legiti-

mate. Where honor rather than property ownership is the principal source of status, lawyers play little role (Abel, 1979). Honor is created and enhanced by a person's own deeds: adherence to norms, rhetorical competence, physical strength, and courage. (Yet, there are contemporary instances where lawyers mediate conflicts over honor, such as defamation cases by prominent figures, or perhaps disputes between divorcing couples.) Similarly, where status is affiliational (as it frequently is for women), lawyers are irrelevant. Even in advanced capitalist societies, the strong value placed on preserving social relationships (including dominance and subordination) may discourage resort to law—Japan is the most frequently cited example, (Kawashima, 1963; Haley, 1978; Wagatsuma & Rosett, 1986; Miyazawa, 1987).

Law is related in complex ways to beliefs about inequality and equality. In the past, tradition and religion (sometimes, but not invariably, reinforced by law) have offered powerful justifications for inequalities of class, gender, age, ethnicity, and race. Law (and lawyers) have provided a means of challenging inequality in the modem era. Yet, law and lawyers also constitute a powerful legitimation for those inequalities that persist, which then are attributed to choice, effort, natural endowments, or the costliness of change. Nor do all contemporary lawyers attack ascribed inequalities in the name of universalistic laws: Basque notaries strictly maintain traditional inheritance patterns against French laws that would supersede them (Nicholson, 1987).

It hardly needs argument today that law and lawyers create culture as well as being its creatures (Macaulay, 1987b ; Merry, 1986). Many contemporary Western societies appear to be highly legalistic. Few would dispute the continued force of de Tocqueville's observation, more than a century and a half ago, that sooner or later every important issue in American life is transformed into a legal question—although some would characterize the United States as extreme, if not aberrational. The explanation for this hegemony of legalism is less dear. Is it the number of lawyers or the dissolution of other belief systems? Or is it the inevitable consequence of ethical and cultural relativism? And how enduring is the hegemony of legal culture? There is some evidence that the discourse of economics is displacing that of law, making economists the new philosopher kings.

COMPARISONS WITHIN SOCIETIES

Thus far we have focused on the larger social environment and tried to understand the varying role of law and lawyers. Now we want to invert that analysis, staffing with concrete variations in that role in order to

arrive at testable generalizations about their meaning. Whereas our comparisons previously ranged across the entire gamut of societies, here we will be concerned primarily with differences within advanced capitalism, even within a single society. Our analytic strategy is to construct pairs of events that are otherwise similar and consider why one member of the pair appears to be more thoroughly legalized than the other, that is, more subject to legal rules and thus more likely to involve lawyers. Because we draw on our experience as common lawyers, it will be essential to test our generalizations in other legal systems.

In a number of very different contexts, the termination of a relationship is thoroughly legalized although its formation was not: death and birth, divorce and marriage, termination of parental rights (for child abuse or neglect) and becoming a biological parent, contract breach and contract formation, firing and hiring of an employee, eviction of a tenant and the leasing of real property, dissolution and formation of a collectivity (partnership, corporation), entry into a country and deportation (or even voluntary departure, as in the Soviet Union). We can think of several reasons for this. A complex series of expectations have accreted around the relationship, which require readjustment (this also might explain why more elaborate rituals and religious beliefs surround death than birth). Many of these expectations concern property, and lawyers are quintessentially the priests of property. The formation of a relationship is perceived as a consensual act; we typically explain and justify such action as an expression of economic, psychological, or political choice. The termination of a relationship, by contrast, commonly expresses or creates conflict and represents the exercise of power. If the conflict is sufficiently serious, the state may seek to regulate it. If the power relationships are sufficiently unequal, the state may seek to equalize them or to legitimate the outcome.

Some of the exceptions to these empirical generalizations offer further support for the underlying theory. When one or both parties anticipate future conflict, formation of the relationship may also be legalized, as in complex business contracts. A country concerned about immigration, like the United States, may bureaucratize the process of obtaining a visa but summarily expel those who overstay their term, denying them most due process rights. Also, the formation of a relationship may be subject to legal control where we lack confidence that "choice" will produce a desirable result: adoption is a long-standing example, surrogate motherhood a more recent one. At the other end of the continuum, consensual termination of a relationship is not legalized: voluntarily quitting an apartment or leaving a country, performance or mutual recission of a contract, agreements dissolving partnerships, even divorce by consent (the most common form of marital dissolution in Japan). The presence or absence of property can be equally decisive. Lawyers are not involved following the deaths of most

people (who have no estates), the evictions of most tenants, or the firing of most employees. Where large amounts of property are invested in a relationship at the outset, lawyers are more likely to be involved in its formation: births and marriages among the very wealthy are examples (for they often are accompanied by the creation of trust funds or property settlements); or one can compare leases of commercial and residential property, or the creation of large corporations and small partnerships. Changes in the amount and kind of property can transform routine legal procedures into customized individual transactions. This has happened to divorce in California as a result of the incredible inflation of housing prices (which have made the family home a valuable asset) and increasing attention to the division of intangible property (such as academic degrees, professional qualifications, and pension rights). Property even can create a legal relationship where none previously existed, as in the recognition of a cohabitant's right to share in the couple's property when the relationship is dissolved.

We can see the importance of property in other contexts by contrasting situations where value is aggregated, capitalized, or congealed, with those where it is dispersed, fragmented, or individualized. Most individuals never control a large amount of value at any one time because their only source of value is their own labor power, which must be exerted continuously throughout a lifetime of work, producing daily increments, which are quickly consumed. Yet, sometimes an individual's labor power is tragically extinguished (or seriously diminished) through personal injury. In such cases the victim seeks restitution for the loss. American tort law (and similar bodies of law in most Western legal systems) offers compensation, a significant element of which is the capitalized value of the labor power the victim would have expended during the rest of a working life. (In pre-capitalist societies, compensation obviously is not proportioned to labor value.) Where this value is large, lawyers often represent both victim and alleged tortfeasor in the dispute over the amount of the loss and who should bear it. Again the exception proves the rule: where the victim is entitled to periodic payments rather than a lump sum, lawyer involvement is both less common and less energetic (workers' compensation in the United States and similar income replacement schemes elsewhere). The capitalization of value also explains the greater involvement of lawyers in transferring ownership of land than in forming month-to-month tenancies, or in drafting long-term employment contracts than in hiring hourly workers. It is not just labor power that can be aggregated—so can life itself. The response to personal injuries is so highly legalized in the United States partly because victims can recover "general damages" for the transformation of their lives: pain, loss of certain pleasures, disfigurement, injury to relationships, or even "lost years" for those whose life expect-

ancy is shortened. For similar reasons (and far more universally) criminal prosecutions are thoroughly legalized. Even before the state began to provide poor defendants with defense counsel (after World War II), many indigent accused found ways to buy representation when they were facing long prison sentences. For similar reasons, those confronting deportation (or incarceration in a country where they could not practice their calling or religion) will borrow or call on the resources of relatives in order to secure legal representation. Value can be aggregated not only over time but also across individuals, when one actor possesses the ability to injure multiple victims through a single act, as in pollution, mass disasters, or abuses of concentrated economic power. The state may subject such behavior to legal regulation (through environmental or antitrust laws), and class actions may involve lawyers in representing individuals, each of whose stake in the matter is relatively small (Yeazell, 1987).

Property and the capitalization of value are intimately related to the legalization of behavior and the involvement of lawyers for two principal reasons. First, they increase the importance of the transaction to the participants to the point where it becomes worthwhile for them to invest in professional services. This, in brief, is why "repeat players" are strategically placed to take advantage of law, both prospectively (by drafting favorable "agreements," such as apartment leases or disclaimers of liability in contracts for the sale of goods or services) and retrospectively (making or resisting claims or negotiating settlements) (Galanter, 1974). Second, the capitalization of value often allows the object of controversy itself to become the source of the lawyer's fee, as in the sale of the family home on divorce, damages for personal injury or breach of contract, controversies regarding the ownership of property (real estate, patents and copyright, control of a corporation), or settlement of an estate. This is a prerequisite for lawyer involvement because, as our two earlier volumes have shown, lawyers everywhere have succeeded in inflating the cost of their services by restricting supply. Thus, the correlation between the involvement of lawyers and the capitalization of value (especially into a "res" whose liquidation can pay the lawyers' fees) is grounded in the self-interest of lawyers, whereas the correlation with the relationship between the parties (and more generally with the society, polity, and economy) stresses the functions of lawyers for the larger environment.

WHAT DO LAWYERS DO FOR THEIR CLIENTS?

We are interested in discovering when behavior is legalized and lawyers involved because we believe it makes a difference. There are many ways we could begin thinking about those differences. First, lawyers may aug-

ment or diminish inequalities between adversaries, either because only one side is represented or because it is represented more effectively than the other. To explore this we should examine pairs of potential adversaries. Second, lawyers often operate in settings that are not strictly adversarial; and even within contentious situations they perform a wide variety of functions. Here we want to analyze precisely what lawyers do for their clients. Third, the lawyer-client relationship is fraught with possibilities for tension, divergent objectives, and misunderstandings. We offer some speculations about the inconsistent expectations lawyers and clients may hold about each other. Finally, we must recognize that, despite the legal profession's official monopoly, many other actors do or could perform similar functions. We pose some questions about the difference it might make that a lawyer is doing so. In each of these inquiries we are limiting ourselves to what lawyers do for clients : lawyers also pursue their own goals (what Larson [1977] has called the "professional project" of market control and collective status enhancement) as well as engaging in altruistic, public interest behavior (Halliday, 1987).

LAWYERS AND THE BALANCE OF ADVANTAGE

Not everything lawyers do affects the balance of advantage in society. Much of their work is purely facilitative, neither responding to nor anticipating conflict: transferring residential land (in common law countries), forming corporations, drafting wills, creating trusts, filing adoptions, performing truly uncontested divorces. Indeed, such work may seem so mini-really "legal" that nonlawyers challenge the professional monopoly, often successfully. Even in these situations, however, differential access to lawyers may amplify existing advantages: minimizing tax liability, permitting profitable investments, and avoiding the social stigma and uncertainties of unlegalized relationships.

In many other situations, the presence and quality of legal representation may have more momentous consequences (Marvell, 1978; Partridge & Bermant, 1978; Wheeler et al., 1987). The following is a preliminary list of adversarial pairs, which needs to be amplified and refined (particularly to eliminate ethnocentric common law biases): prosecutor and criminal defendant; spouses contesting custody, visitation, property, or support following a divorce; claimants to the same property (title to land, tenancy, inheritance, patent or copyright infringement, creditors of a bankrupt debtor); tortfeasor and victim; parties to a contract (commercial, consumer, loan); regulator and regulated (including tax collector and taxpayer, jailor and prisoner, state and citizens seeking to limit state power); state and benefits claimant; shareholders seeking corporate control; enterprises struggling

over competitive advantage under antitrust laws; employer and employee (individually over job security or discrimination, collectively over the terms of the employment relationship); polluter and polluted; discriminator and victim of discrimination. It would seem fruitful to identify more such situations and study them cross-culturally to determine whether one side is represented or both are and, if the latter, the quality of representation on the two sides.

THE REPERTOIRE OF LAWYER FUNCTIONS

To reduce the significance of lawyers to amplifying or reducing inequality is to obscure the very wide range of functions they perform for their clients. A second research strategy, therefore, would map those functions and seek to understand why lawyers perform more of them for some clients and in some legal systems than others. This approach clearly owes much to the functionalism of the American legal realists and their successors (Llewellyn, 1960, 1962; Twining, 1973; Hurst, 1950). Within the large and growing literature on the legal profession, however, there are very few studies of what lawyers actually do (clinical teaching materials would be a useful source, although they are prescriptive rather than systematically empirical). Furthermore, the sensitivity of the subject has encouraged researchers to study "down"—concentrating on lawyers serving relatively low status clients: individuals undergoing divorce, legal aid recipients, personal injury victims, criminal accused, and dissatisfied consumers (e.g., O'Gorman [1963], Sarat & Felstiner [1956], Griffiths [1986], Cain [1979], Landon [1982, 1985], Carlin [1962], Rosenthal [1974], Hosticka [1979], Katz [1982], Macaulay [1979]; on the difficulty of studying what lawyers do, see Danet et al. [1980]). Although there are numerous accounts of dramatic trials, particularly personal injuries, almost all are written by or about the victims and their lawyers, not about the corporate tortfeasors and theirs (Ino, 1975; Upham, 1976; Teff & Munro, 1976; Erikson, 1976; Stern, 1977; Insight Team, 1979; Levine, 1982; Brodeur, 1985; Mintz, 1986; Schuck, 1986; Wallace, 1986; Riley, 1987; Ball, 1985; Kurzman, 1988). Very few have studied what lawyers do for the medium-sized and large commercial enterprises that provide most of their business (but see Nelson [1988], Galanter [1983], Spangler [1986], Kagan & Rosen [1985], Rosen [1986, n.d.], Flood [1986], McBarnet [1984], Mann [1985], Zion [1988]; on the behavior of government lawyers, see Eisenstein [1978]). The following enumeration inevitably is biased by the fact that we know more (if still very little) about lawyers representing individuals than about those serving companies and the state.

1. Lawyers provide knowledge about law so that clients can plan future behavior, know what to expect as a result of past conduct, and seek to change the law. Sometimes lawyers educate clients about how much of the law they can break without being caught or seriously punished because the government or a private adversary lacks the knowledge, skills or resources to enforce the law (Mann, 1985). Lawyers also misinform clients and conceal information from them, both out of ignorance and intentionally (because the lawyer has conflicting obligations to another or fears to reveal past misconduct).

2. Lawyers provide clients with knowledge about and contacts with influential people. Some of the people lawyers know are regular adversaries (such as prosecutors for defense counsel), to whom lawyers can talk and with whom they can negotiate in ways that clients themselves cannot (Mann, 1985: 77). As Jerome Carlin summarized the views of Chicago sole practitioners in the late 1950s: "the practice of law... is more 'who you know than what you know,' ... it's all politics and connections" (1962: 194-195). Muckraking books about Washington lawyers urge the same conclusion (Goulden, 1972, Green, 1975). Lawyers tell clients who has the power to do what and open the doors to such people. There is considerable debate, however, as to whether lawyers themselves enjoy influence over governmental decisionmakers or merely are conduits through which clients exercise their own influence (Laumann et al., 1985; Salisbury et al., 1986; Nelson et al., 1987, 1988).

3. Lawyers speak for their clients, using rhetorical skills and technical knowledge to address adversaries, negotiating partners, judges, legislators, and administrators. Of course, they present legal arguments; however, although this is the core of legal education and of the image lawyers present to the public, it is not the only way they represent their clients. Lawyers say things that clients cannot because they lack the eloquence or courage or are too honest or emotionally involved. A white-collar criminal defense attorney who knew that this client had given high-level government employees valuable stock options asserted to the investigating U.S. Attorney: "We have examined books, daily accounts, the cash flow and find no indication whatsoever of expenditures that were not appropriate" (Mann, 1985: 82). Lawyers tell clients what they can and cannot say in view of the evidence that is likely to be available to an adversary or a decision-maker. Some clients cannot speak at all: women and slaves often were legally disabled; prisoners are physically disabled; collectivities may not have an agreed spokesperson; children may be too immature. In speaking for clients, lawyers endow them with the benefits (and detriments) of their own professional reputations and social standing. For the same reason, lawyers may refuse to represent some clients (those who commit heinous crimes or are politically anathema) or say certain things on their behalf. They may even seek to control the client's behavior so as not to be

compromised, in order to preserve a reputation for "reasonableness" (Katz, 1982). In some situations, lawyers may conceal the fact that they are ventriloquists, secretly scripting their client's communications and behavior (Flood, 1986: 26-27; Mann, 1985: 132). Lawyers also restrain clients from talking, when clients wish to be overly revealing (out of an emotional need to confess or in the hope that an adversary will reciprocate) but lawyers believe that "stonewalling" is a more effective strategy. Here (and in many other contexts) the lawyer not only represents the client to adversaries and legal officials but also represents the latter to the client. Lawyers do this, despite the strong professional ideology of fidelity to the client, for several reasons: their need to retain the goodwill of legal officials or adversaries (with whom lawyers may have ongoing relations)—plea-bargaining being the best documented example (Law & Society Review, 1979), the desire for future business from an adversary, or personal or ideological sympathy with the adversary (which may reflect their similar backgrounds). For instance, Stewart Macaulay (1979) reports that Wisconsin lawyers often are impatient with consumer complaints because the lawyers appear to accept the American faith in the market and to blame the consumers for unwise purchases. Indeed, lawyers sometimes explicitly embrace the role of mediator between opposing parties, for instance, in divorce.

4. Lawyers can engage in therapy, offering a sympathetic ear (perhaps even catharsis) to clients who want to express anger, fear, anxiety, or sorrow. (Similarly, lawyers are called on to offer business advice, often because the strong ethic of confidentiality makes them the only trusted outsiders to whom a corporate official can speak.) Lawyers can affirm or challenge those feelings. They can redirect them—away from an adversary and toward the legal system, for instance. This can change the goals and strategies that client and lawyer pursue. Lawyers also may refuse to perform this role, defining legal issues narrowly and suggesting that the client see a trained therapist.

5. Much of the work of lawyers consists merely in performing formulaic acts and utterances in order to produce legal results that are virtually automatic, as we mentioned in the previous section. Examples might include simple tax returns, insurance claims, guilty pleas, incorporation, name changes, adoptions, uncontested divorces, residential land transactions, and probate of small estates. A subset of these noncontentious activities demands greater creativity: eliciting a client's real wishes in order to embody them in a contract; and constructing the legal framework of a collectivity (partnership, corporation, trade union, voluntary association, cooperative).

6. Lawyers construct narratives (Lopez, 1984). They collect stories from clients, adversaries, officials, and other witnesses; examine records; study material evidence; and put together a story (or set of alternative stories)

about "what happened" or what the decisionmaker can be made to believe has happened (Germ, 1987: chap. 4). Sometimes lawyers have to work hard to elicit information from reluctant, suspicious, or confused clients; at other times they have to be just as diligent to remain ignorant of uncomfortable or inculpatory facts (Mann, 1985: 103-111). They tell clients what kinds of evidence are necessary to substantiate their accounts and those of their adversaries, so that clients can collect and preserve the former and conveniently lose, forget, or bury the latter (Flood, 1986:40; Mann, 1955: chaps. 3-4). Lawyers suggest to clients what would be helpful or damaging testimony from witnesses—especially those over whom clients have influence. The process of questioning and recording simultaneously shapes what others believe and remember. Of course, lawyers are not the only ones who perform this role: insurance claims adjusters and shop stewards do so in personal injuries (Ross, 1970); police, in criminal investigations; and social workers, in welfare cases.

7. Lawyers transform their clients' objectives and strategies by telling clients what they can obtain from the legal system (Felstiner et al. [1980/81]; cf. Mather & Yngvesson [1980/81]). To use a Freudian metaphor, they are collective superegos, bringing a reality principle to bear on client ids. American criminal lawyers, for instance, may demand a preliminary hearing not to learn the prosecution's case (which they already know) but to persuade an accused that he has no choice but to plead guilty (Flemming, 1986). (A recent Dutch study, however, suggests that lawyers are consistently overconfident; see Malsch [1988].) In divorce cases, for instance, lawyers translate raw client emotion, such as the desire for revenge, into entitlements to a property settlement and support (Sarat & Felstiner, 1986). Sometimes this translation also reflects the lawyers' own beliefs about the appropriate legal response. John Griffiths (1986) reports that Dutch lawyers discourage noncustodial parents from seeking weekly visitation because they believe that it produces too much conflict. Lawyers' strategic decisions also are influenced by the amount in controversy and the client's own resources: they seek only as much "justice" as the client can afford. Stewart Macaulay (1979) describes the ways in which Wisconsin lawyers "cool out" dissatisfied consumers. Lawyers simultaneously explain to clients why they must accept less than they want, attributing this to the rigidity of legal rules, the arbitrariness of judges, or the malevolence of adversaries (both clients and lawyers). In the process, they persuade clients to accept what the law offers. Jack Katz (1982) offers vivid accounts of the ways in which legal aid lawyers allow legal "solutions" (or their absence) to define client problems. If clients refuse to accept "reality," lawyers may place the blame for failure on the clients themselves. Although laypeople perceive the law as incredibly complex—a perception lawyers encourage (Sarat & Felstiner, 1986)—the translation of lived experience into legal

language often is a process of simplification, just as a medical diagnosis invariably simplifies a patient's narrative of aches and pains. In both instances, the available legal or medical remedies come to shape the nature of the client's or patient's complaint—driving some to seek political solutions or nonprofessional healers.

8. There is considerable controversy, although relatively little information, concerning the extent to which lawyers intensify or moderate legal conflict or encourage clients to comply with or evade the law. It is essential to trace variation along these two crucial dimensions in different legal systems, across subject matters, and as it is influenced by the characteristics of lawyers and clients and the relationships between them. For instance, Sarat and Felstiner (1986) offer persuasive evidence that divorce lawyers moderate the adversariness of their clients, which is fueled by powerful emotions. Numerous accounts of the criminal justice system (beginning with Sudnow [1965] and Blumberg [1967]) depict defense lawyers persuading their clients to accept the state's offer and plead guilty (Matheny, 1979). Yet, it seems likely that lawyers may also intensify the conflict out of ideological commitment, the desire to play for long-term objectives (including rule changes), anger at a particular adversary (lawyer or client), eagerness for publicity, or simple greed (when the client can pay the costs). Similarly, lawyers may increase legal compliance: informing clients already inclined to be law-abiding about the content of or changes in the law; or urging compliance on reluctant clients because lawyers have an ideological commitment to the particular law or to obedience in general or an interest in preserving their professional reputations. However, much of what lawyers do is to show clients how to sail as close to the wind as possible, taking every advantage the law offers and offering nothing in return unless compelled. Certainly that is how popular guides to successful lawyering characterize the role. This does describe a good deal of tax planning, administrative law practice, negotiation, and litigation strategy. Such client partisanship may be simply a means of getting business (devising and marketing tax loopholes, for instance, or strategies for pursuing or resisting corporate takeovers; see Powell [1987]), or it, too, may be ideologically motivated (opposition to racial integration, for instance, or abortion, or even government regulation generally).

9. Lawyers may define problems narrowly or broadly. Most discussion of this choice has focused on those whose opposition to established power makes them appear more conspicuously "political": lawyers in legal aid offices or public interest law firms or those involved in political trials (Katz, 1982; Weisbrod et al., 1978; Handler et al., 1978; Barkan, 1985; Abel, 1985a , 1985b ; Scheingold, 1988a , 1988b ). However, it is important to recognize that private practitioners serving business clients actually have more leeway and greater resources in designing legal strategies. They can

coordinate the activities of discrete parties: members of a trade association or defendants in a white-collar criminal prosecution (Mann, 1985: 89-93). They can play for rules, fight cases that are economically unprofitable in order to discourage other claims, delay in order to force a settlement, and so forth. The ongoing litigation regarding the liability of tobacco companies to smokers who contract cancer and other diseases exemplifies this. When a jury returned the first verdict for a plaintiff in June 1988, a lawyer for the defendant Liggett Group responded: "The bottom line is to collect a $400,000 claim they [plaintiff's lawyers] spent more than $2 million. That can't be much incentive" (McGee, 1988). The lawyer for Phillip Morris, which controls 37 percent of the tobacco market, added: "The plaintiff bar is not likely to regard this verdict as encouraging because they got only 10 to 15 percent of their costs in prosecuting their suit" (Janson, 1988).

This list contains both overlaps and omissions and lacks a clear unified theoretical framework. Because it is written by common lawyers and informed by a literature that is predominantly American, it also is culturally biased. Furthermore, the interesting questions are when lawyers do which things for which clients. Given the paucity of research on what lawyers actually do for their clients, however, it may stimulate others to pursue these issues and offer a starting point for doing so.

HOW DOES THE LAWYER-CLIENT RELATIONSHIP SHAPE LAWYER BEHAVIOR?

What lawyers do for clients is influenced by the expectations that each group has about the other. Lawyers agonize endlessly about how they ought to behave: in their rules of professional conduct, in self-congratulatory and self-flagellating ceremonial speeches, and when deploring their poor public "image" and proposing ways to improve it. American legal scholars never tire of discussing how to balance the loyalties lawyers owe their clients against their countervailing obligations to the legal system and the larger society (for speculations about why this is a peculiarly American preoccupation, see Luban [1984]). We also have some survey research (and a few observational studies) on how clients think lawyers ought to behave (Curran, 1977; Steele & Nimmer, 1976; Rosenthal, 1974; Royal Commission, 1979, vol. 2:223-237; Royal Commission, 1980, vol. 2:64-70, 75-77). Clients appear to be most concerned that lawyers keep them informed, explain the situation thoroughly, and listen attentively to their questions. They also want loyalty but not necessarily the adversarial loyalty of the tactician who seizes every advantage and never makes a concession; rather, they want the therapeutic loyalty of the ally

who unquestioningly accepts the client's sense of injury and injustice. Moreover, we know how frequently clients make formal complaints—to professional disciplinary bodies and by suing for lawyer malpractice—and the content of those grievances.

Lawyers' self-exhortations—in ethical codes, bar association journals, and annual conventions—presumably are intended primarily for public consumption, or at least as a means of collective self-deception or reassurance. For social scientists to confuse those prescriptions with actual behavior would display unpardonable naivete (Abel, 1981). Client expectations and desires are likely to be influential where clients exercise significant control over their lawyers. This is a function of: the relative wealth, status, and education of lawyers and clients; the duration of the relationship, especially when compared to the lawyer's relationships with adversaries, opposing counsel, and legal officials; the amount of business the client brings the lawyer, especially when compared to other clients of the lawyer and the firm; how easily the client could engage in self-representation or find another lawyer; whether the lawyer is an employee or independent practitioner; whether the client has proactively initiated contact with the legal system or is responding to the actions of another; and perhaps whether the use of law is facilitative or contentious.

Where these variables give lawyers power over clients, however, it makes more sense to consider lawyers' expectations about clients than either clients' expectations about lawyers or lawyers' public pronouncements. On the basis of the very little we know, it seems likely that the former are virtually the mirror image of the latter two. Although lawyers' expectations are not expressed in "rules of client behavior" or explicit lawyer grievances about clients, there are other sources of information: lawyer shoptalk (which is filled with "horror stories" about bad clients) and the ways in which lawyers consciously use their power to structure the relationship. Lawyers want clients to be passive. The best client is the absent client: physically distant (as when Washington lawyers lobby on behalf of clients referred by local counsel, or London solicitors litigate matters forwarded by provincial solicitors), socially distant (solicitors protect barristers from direct dealings with clients; house counsel may perform this role on the Continent and, increasingly, in the United States), or largely fictitious (some forms of public interest lawyering, especially class actions). Clients should accept the lawyer's judgments on what is feasible and how to achieve that goal. Lawyers want to control the construction of "what happened" for consumption by other audiences (adversaries, decision-makers), insisting that clients provide them with full accounts and complete records but retaining the skeptic's privilege of disbelief. (Sometimes lawyers prefer to preserve a strategic ignorance of what happened so that they are not implicated in client concealment and duplicity; see Mann [1985].) Although

many lawyers send clients copies of ongoing correspondence and legal documents, their goal is less to keep clients informed than to protect themselves against recriminations and possible malpractice liability. It is the lawyer who constructs the narrative of "what's happening." Lawyers want respect—for themselves, if not for the legal system. Sarat and Felstiner (1986) describe lawyers seeking to enhance their own skills in the eyes of their clients by insisting on the arbitrariness and irrationality of most legal decisions, the unscrupulousness of opposing counsel, and the incompetence of judges. This contributes to the client's satisfaction with the lawyer (if it erodes public confidence in the legal system) and simultaneously constructs an excuse if the outcome is unsatisfactory. Both strategies seek to encourage clients to return and to refer others. Most of all, lawyers want clients to pay their bills. It is not being unduly cynical to interpret significant elements of lawyer behavior in this light: private criminal defense lawyers rely on the cooperation of judges and prosecutors to make a routine plea bargain appear to be a hard-won victory deserving a high fee; plaintiffs' personal injury lawyers may falsely report a low offer in order to return to the client with the "good news" that aggresive negotiation has persuaded the tortfeasor to raise it to an acceptable level—the real amount originally offered (Rosenthal, 1974: 110-112). In the course of a commercial lawsuit, one partner said to another: "Always give the client a bill when you've done something well for them" (Flood, 1986:39).

LAWYERS AND FUNCTIONAL ALTERNATIVES

In considering whether lawyers tip the balance in adversarial relationships, what they actually do for clients, and how they and their clients perceive and structure the relationship, we have tacitly assumed that lawyers are acting for clients. However, others may be doing so: People with legal training who have not qualified to appear in court (German Syndici, French conseils juridiques and juristes d'entreprise, Japanese law graduates who do not pass the entrance examination for the Institute of Legal Training and Research, employed English barristers), people with other forms of expertise (accountants, architects in construction disputes, real estate brokers, bankers), and people with no special competence (employers, fellow workers, friends). Moreover, parties frequently take legal action on their own, without any advice or representation.

We can imagine various reasons why the identity of the representative might make a difference: technical knowledge, participation in networks, socialization in values, membership in a professional association, subordination to ethical rules and disciplinary procedures, the "independence" allegedly protected by fee-for-service arrangements, the structure of law

firms, social or cultural background, and so on. One way to test it: would be to reverse a strategy proposed earlier. Rather than taking a structural category (private law practice) as a constant and examining all the functions its members perform, we could hold the function constant and compare the way it is performed by various actors. In doing so, it is important not to give conceptual priority to lawyers: they are as much "functional alternatives" to other roles (whom they seek to supplant) as lay competitors are "functional alternatives" invading the lawyers' market. Some of the pairs could be found within a single legal system, but cross-national comparison would greatly increase the power of the analysis. The following are only a few examples of this line of inquiry.

1. Corporate middle managers often are legally trained. This is particularly true in Europe and Latin America, where law traditionally has been one of the most popular undergraduate degrees but few law graduates complete the additional professional studies, apprenticeship, and examination necessary to practice privately or enter the magistracy. It also is true in Japan, where many undergraduates study law but few take or pass the rigorous examination for the Institute of Legal Training and Research, which alone qualifies for private practice and the magistracy. In the United States, by contrast, most law graduates take and pass the bar examination and enter practice; only a few of the less than 10 percent who join offices of house counsel are likely to rise to upper management. We could compare the management styles of those with and without legal training and practice experience. This would be particularly challenging in light of the common allegation that American business, whose managers are less likely to be legally trained, is more legalistic. The comparison is very timely because those with legal training increasingly are being challenged—in Europe and Latin America as well as the United States—by technocrats trained in economics and business who, unlike many lawyers, are both numerate and computer literate.

2. A similar comparison could be made within the higher civil service. Once again, law graduates are prominently represented in Europe, Latin America, and Japan but considerably less common in the United States, whose civil service offers much lower material rewards and prestige (particularly compared to private practice). In the very highest policy-making positions, however, these proportions may be reversed. Private practitioners on leave of absence from large firms often hold cabinet posts in the United States; this seems quite uncommon elsewhere.

3. Many have commented on the fact that lawyers dominate political life at certain times and places. The United States is the preeminent example; elsewhere the proportion of lawyers in the executive and legislative branches appears to have shrunk in recent years. Yet researchers have been

unable to find significant differences between the behavior of those with and without legal training or practice experience. Thus, legal qualifications may be more relevant to questions of social mobility and recruitment to political careers than to those of political style.

4. In most countries, the judiciary is confined to those with formal legal qualifications. Yet it might be possible to make two kinds of comparisons within this role as well.

First, the judiciary is a lifetime career in civil law countries, but in common law countries it generally follows a successful career in private practice (less often as a prosecutor or legal academic). We could compare judges in terms of their previous legal experience, although it would be hard to hold other variables constant. Second, laypersons often perform roles similar to those of the lower levels of the judiciary, either as formally recognized lay magistrates (justices of the peace in England, for instance) or as functional equivalents (police chiefs in Brazil, labor arbitrators in the United States, and the host of alternatives fostered by the "alternative dispute resolution" movement). Here, both formal education and previous experience diverge and might influence styles of adjudication.

5. Thus far we have been suggesting comparisons of actors performing similar institutional roles. Another approach is to begin with particular legal problems, consider who handles them, and explore how their behavioral styles differ. In most instances, the lawyer performing the role is in private practice.

a. The transfer of title to land is an obvious example. In England one could compare solicitors (who long have enjoyed a monopoly), estate agents, chartered surveyors, building societies (i.e., mortgage lenders), and the new category of licensed conveyancer. In the United States, lawyers retain a monopoly in some states but have lost it to real estate and escrow agents in others. Similar comparisons could be made across Australian states. And, of course, notaries dominate the role in civil law countries. Finally, it might be useful to study the behavior of government employees in systems where land registration is well developed. The comparison might even be extended to anthropological accounts of preliterate societies in which elders preserve an oral history of land transactions, frequently celebrated by elaborate communal ritual. The transmission of property at death is another area where a multiplicity of private individuals and public employees play varied roles in different societies. Lawyers often compete with laypersons and scientists in filing patents and defending them against infringement (Van Zyl Stair, 1985).

b. Lawyers retain a monopoly over divorce in most countries. Comparisons between salaried legal aid lawyers and private practitioners—and, among the latter, between those paid by state funds and those paid by

their clients—are feasible, however. In some American states and in Japan, couples often conduct their own divorces with little or no assistance from lawyers. Mediators, both lawyers and those without legal training, play an expanding role in divorce proceedings. Also, in countries where religion (both Catholicism and Islam) dominates family relations, clerics may play the central role.

c. A broad range of advisers and representatives may be involved in the legal response to personal injury. Lawyers dominate this field in the United States (although even there they are less prominent in workplace accidents). Insurance claims adjusters also play an important role. So do union officials, shop stewards, physicians, and police officers. In countries with highly developed compensation systems, such as New Zealand, civil servants and insurance company employees are the central actors. Even where private law continues to apply, large insurance companies may be able to mobilize data processing techniques to substitute clerks for fully qualified lawyers (Hartmann, 1988).

d. A last example—a frequent battlefield between professions—is tax advice, where lawyers compete not only with accountants but also with the relatively unskilled employees of national tax advice services. Furthermore, the taxing authority itself necessarily participates in giving advice. These comparisons could be generalized to advice on other subjects, such as immigration, consumer complaints, and landlord-tenant disputes.

6. A third strategy would limit comparison to those with the same formal legal credentials, focusing on contrasts within the group, according to four basic sets of variables:

a. Personal ascribed characteristics: gender, race, ethnicity, religion, class, and age. It has been suggested that women lawyers behave differently from men lawyers for a variety of reasons, including childhood socialization, continued disadvantage within the profession, divergent ambitions, and disproportionate housekeeping and childrearing obligations. Lawyers from minority ethnic, religious, or racial groups or working-class families may pursue different legal careers and display greater sensitivity to clients from similar backgrounds. Lawyer behavior may vary with age, either because of maturation or differences between entering cohorts.

b. Professional socialization. We could explore the effects of formal education by comparing the (dwindling number) of English or Australian lawyers without a law degree to those with one, solicitors without any university degree to those with one, and graduates of law schools at different levels of the status hierarchy (traditional Oxbridge versus more experimental faculties, or university versus polytechnic in England; elite, regional, local, and unaccredited in California). We could consider the consequences of different pedagogic techniques—lectures versus discus-

sions, oral presentation versus writing, classroom versus clinic, doctrinal exegesis versus contextualization and social science—and of different kinds and lengths of apprenticeship. We could study the effects of experience: between English barristers and solicitors (who perform overlapping functions), or among American lawyers, who often move laterally across the roles of private practice (and between firms of different sizes), corporate counsel, civil servant, prosecutor, legal aid lawyer, academic, and judge during a single career.

c. The environment within which lawyers work. Much of the ideological preoccupation with lawyer "independence" presupposes that the structure of practice influences behavior. Such an assumption underlies the divided profession in England, limitations on rights of audience in civil law countries, and concern about the size and bureaucratization of productive units in the United States. These beliefs should be tested empirically by comparing the behavior of English barristers and solicitors, employed lawyers and those in private practice, lawyers employed by government and by private enterprise, lawyers paid by clients and by third parties (government, insurance), private practitioners in firms of various sizes and structures, lawyers in law firms and in multiservice firms (that advise on accounting, finance, and management as well as law), salaried lawyers in firms and profit-sharing partners, and similar pairs. It also would be interesting to know whether lawyers who represent only one category of adversary behave differently from those who represent both, comparing barristers who shift between criminal prosecution and defense briefs, for instance, with those who specialize in one side.

d. That amorphous concept "legal culture." Many observers have argued that lawyer behavior is influenced by notions of legality, rights, conflict, authority, and justice that are widely shared within a given culture but significantly different between cultures. We might be able to study this by looking at the ways in which lawyers in different cultures (regional, national, or subnational) defined and responded to similar problems, such as injuries (thalidomide, asbestos, Chernobyl), government regulation, multinational business transactions, and so on.

We do not mean to minimize the difficulty of making these comparisons: legal systems differ in many ways other than their personnel, and within a single legal system long-standing battles over turf have curtailed the number of markets in which lawyers and others perform similar functions. Nevertheless, the questions have great significance, both theoretical (are there distinctively legal behavioral styles) and practical (are the professional monopolies justified, what kinds of entry policies and training produce what results).

WHAT DO LAWYERS KNOW?

Having discussed what lawyers do for (or in relation to) their clients and whether it makes any difference that lawyers (rather than other specialists) perform these tasks, we can turn to lawyers' knowledge. Knowledge, or expertise, is treated by sociologists as a principal warrant of professional authority; however, its importance is not limited to academic observers. In social life a central reason for seeking help from members of one discipline rather than another is what they know. We distinguish occupations on that basis and in terms of the training and qualifications that are supposed to guarantee expertise. Qualifications and training, as Freidson (1986) shows, are also what allow occupations to claim monopolies over certain activities or titles, even though we may be skeptical as to whether such credentials deliver the expertise they promise. Furthermore, expertise is part of the self-image of many professions; this is particularly true of lawyers, who have seen themselves as a "learned" profession (although this self-conception varies across time and place). The previous section shows that any plausible description of what lawyers do must refer to their knowledge—of law, of influential people, and of technical procedures. The knowledge they use appears to influence the organization of practice. Indeed, increasing specialization confirms this. Finally, Bourdieu (1987:828) suggests that the social space of the legal system—what he calls "judicial space"—is established by the division between those who do and do not have certain competences: "the technical mastery of a sophisticated body of knowledge that often runs contrary to the simple counsels of common sense."

These varying arguments show that we should be cautious about how we describe lawyers' knowledge. It is tempting to speak of lawyers using knowledge to deal with their clients' problems. However, this approach may make unwarranted assumptions, which we can best illustrate by contrasting two polar views of the world in which lawyers act.

According to one view, knowledge is about objects (statutes, decisions, rules, and practices), and professionals simply possess that knowledge (or are ignorant—as when they commit malpractice). Professionals make their knowledge available, and clients choose the appropriate professional for the specific problem. What is known is defined by membership in the profession.

From the opposite perspective, everything is process.^[1] There are statutes and decisions (although not rules, which are more inflexible). But what lawyers know is a set of skills in using statutes and decisions to produce desired results, or how to devise mechanisms (for example, corporate forms) appropriate for given ends. These skills are not merely attributes of

the profession, which predate any client contact; rather, particular professionals develop them in the service of, and in order to attract, particular clients (Dezalay, 1986, 1987). Skills are constructed in response to competition among members of a single profession and also between professions, as they assert that they can and should deal with certain kinds of situations. When lawyers advocate the values of legality, they simultaneously are insisting on their own involvement in certain kinds of problems—and this, indeed, may be one of their purposes, if often unconscious (on the ideology of legalism, see Arthurs [1985]). From this second perspective, the first may be no more than an ideology. Even if we cannot uncritically accept professionals' own definitions of "knowledge" and "problems," however, it does not follow that they know nothing or that no one benefits from their help (Illich et al., 1977).

It is not easy to disentangle expertise from the moral claims of professionalism: concern for the public interest or the client, altruism or disinterest. These warrants are dearly distinct as ideal types, although professions often present moral issues as though they permitted purely technical solutions (to which professionals alone are privy).^[2] However, professional "knowledge" ranges from uncontrovertible expertise through matters about which professionals have more practical experience than laypersons to problems that are connected with professional work only indirectly, if at all. Whether the knowledge that professionals are mobilizing is relevant or reviewable is itself a moral rather than an empirical question.

Both the actions of individual professionals and the pronouncements of professional associations raise questions about the nature and source of their authority.^[3] Halliday (1987) has described some of the problems confronting associations. When individual practitioners make decisions guided by experience (rather than dictated by rules), it often is difficult to distinguish knowledge and judgment from a willingness to assert or accept moral responsibility for the decision. These are the situations in which professionals, uncertain about both diagnosis and prescription, must exercise discretion: the decision as to whether to have an accused client testify, or the "informed, firsthand guess that the case is a possible, even if a statistically improbable, exception," or "individual situational judgment" (Freidson, 1986:215-216).

Rueschemeyer's analysis (1964, 1973:22 ff.) offers a valuable starting point. Because lawyers' knowledge concerns human actions and intentions, it is subject to deliberate change and reinterpretation. Because it concerns areas of social life about which there is moral disagreement, often severe, it is seen as representing particular interests rather than the public good.^[4] Medical knowledge commands greater authority in part because medical practice rests on a body of scientific knowledge and in part because health is a universally accepted value about whose content there is substantial

agreement.^[5] To the extent that legal knowledge consists of skills such as negotiation or factual analysis, the gap in expertise between lawyers and clients may be quite small, and clients may come to see lawyers as unnecessary and even counterproductive (Macaulay, 1963). Such distinctions may also have the opposite effect. Spangler (1986:184-185) points out that legal knowledge cannot be standardized because it is "cultural"; this indeterminacy may increase the professional's freedom from external control whether exercised by an employer or a client.

Halliday (1985, 1987: chap. 2) has analyzed the authority of professions in terms of the epistemological bases of their knowledge and the institutional loci of their collective activity. Although he distinguishes between scientific and normative bases, he notes that they represent the ends of a continuum and tend to merge in ordinary practice.^[6] They appear in pure form only when professions seek to justify their claim to authority (often in response to external challenges). Lawyers "point to the law finding of judges and the law making of legislatures," which Halliday characterizes as a normative activity. The more normative the epistemological core of professional knowledge, the more readily the profession will be able to exercise moral authority in the name of expertise (1987:40). Its claim to authority will be greatest in its primary institutional locus—courts, in the case of the legal profession.

We do not deny that some lawyers and legal professions enjoy moral authority, even though it is difficult to exercise in modem, pluralistic, nondeferential societies. However, we are skeptical as to whether that authority rests on the grounds Halliday advances. Consider a counter-hypothesis: because the legal profession operates in such an obviously normative domain, it will have to restrain its claims to moral authority to avoid appearing absurdly overweening. Just as the legal profession may limit its activities in order to preserve its autonomy, so it may acknowledge a more modest role for legal knowledge and judgment in order to protect itself from attack within those boundaries.^[7] This may help to explain the plausible hypothesis (which merits further investigation) that practicing lawyers are positivists about the law (if often un-self-consciously) and generally deny that they are involved in a normative activity. They may wish to claim technical expertise but will be reluctant to make broader normative claims, although they may have difficulty distinguishing between positions they advocate on behalf of clients and their personal views about what the law is or ought to be.

Academic jurisprudence long has emphasized the leeway within adjudication for moral or political judgments, and some observers even have maintained that moral judgment is an integral part of adjudication. Similarly, sociologists studying legal activity (whether adjudication or daily law practice) may perceive the continued negotiation of reality that Dezalay

posits. However, the nature of lawyers' authority is more likely to be structured by the interaction between their own understanding (or justification) of its basis and that of those who must acknowledge the authority. Although these understandings will vary between and within societies, we would expect lawyers and clients to treat law in most fields as relatively certain, adaptable only within narrow limits, and not subject to lawyer manipulation.^[8] In some countries judges may believe they have some leeway in applying the law, but practitioners can do no more than seek change within boundaries that vary according to prevailing social attitudes and pressures and are influenced by the client's resources and time-horizon.^[9]

Given all this, it is difficult to distinguish between the bases of authority that undergird science and law, as far as the experience of participants is concerned. If participants believe that there are limits on their authority, then those limits exist, and others who disregard them will be treated as deviant unless they produce arguments for change that fall within the accepted canons. Those who reject this account or criticize the arbitrariness of the system as a whole actually are denying that the profession possesses any authority, technical or moral.

Even so, two important differences still divide science and law. Lawyers produce new knowledge by changing the law, whereas scientists seek to discover new ways of understanding the natural world; and in each, authoritative interpretations are constituted by different social processes.

Let us begin by contrasting legal change and scientific discovery. These processes appear to be analogous, if very different, because each alters what is known. The law can change, especially through the partial diffusion of an innovation, without that change becoming widely known.^[10] In science, by contrast, discovery implies that something has become known (or knowable) to all, and the rewards for priority strongly encourage diffusion. This difference is not accidental: the purpose of science is discovery; reputation is established not just by priority but also by validation through peer review. Most practicing lawyers, by contrast, rarely seek to change the law, although the interest of a particular client may be served by advancing new arguments or devising a novel legal instrument.^[11]

Academic lawyers fall between these two extremes: their goal is to expand the discourse about law and, in doing so, to change it (on the tacit assumption that law is constructed through practice). However, they are sharply distinguished from scientists by the second difference between the two domains. In pure science, it is peers who evaluate whether an investigator deserves the success that confers "symbolic capital" (Bourdieu, 1976), which can be translated into position, command over resources, and possibly recognition of future achievements. Peers also validate the change in knowledge, according to generally accepted criteria. In law, change is both wrought and proclaimed by legislators, administrators, and judges. Credit for the innovation goes to official lawmakers, not the private

lawyers who may have initiated the process, much less academic lawyers who provided the requisite intellectual framework.^[12] Academic lawyers very occasionally validate the discovery of relevant facts by their peers; in the common law world the significant change is more likely to be a new conceptualization of the subject matter. If this is a new analysis of disputed legal provisions (as it usually is in the common law world), then judges have ultimate authority to validate or reject it. If it falls outside that area or if professors have more authority than judges (as they are said to have in civil law systems), there still may be no widely accepted criteria of validation.

Neither judges, practicing lawyers, nor legal academics have the same relationship to legal knowledge that successful scientists have to scientific knowledge. Does medicine offer a closer analogy? In light of Rueschemeyer's remarks, summarized earlier, this seems unlikely.^[13] Some advances in medicine also are advances in science and are judged by the same criteria. Sometimes a novel treatment can be partially validated in a single case (as in some surgical procedures); and there are accepted protocols for testing the success of others.^[14] The reputations of some physicians are based on their abilities to diagnose and treat individuals, which may correspond to the abilities of the trial lawyer. These do not increase formal or validated knowledge, but they are extremely important in practice. In some countries, the general public seems less aware of the reputations of individual lawyers than it used to be, although other lawyers still have strong opinions about their peers. Certainly law firms have reputations among business clients. High awards in personal injury cases or victories in well-publicized divorces attract new clients and may be associated with particular styles of advocacy. However, these legal strategies cannot be "tested" in the same way that scientific knowledge can be evaluated. Even when lawyers develop an institutional innovation, such as the "poison-pill" defense to hostile corporate takeovers (Powell, 1987), there is no peer system for assessing its efficacy. Although other lawyers may adopt it, courts will have the last word about its efficacy.^[15]

In the long run, the structures and modes of validation have more influence on the social significance of different forms of professional knowledge than do their epistemological bases. The social context of legal knowledge might resemble that of science if those who created it also validated it; the German legal professoriate sometimes approaches this, as do academic international lawyers even in common law countries.^[16] However, the legal profession generally is an exception to Freidson's (1986:211) assertion that "unlike the crafts, professionals have been able to control technological innovation by having their own teacher-researchers to produce and legitimize new knowledge.... Their teacher-researchers control... formal knowledge itself."^[17]

Freidson (1986:2) recently has elaborated a recurrent theme in the

sociology of the professions, which associates their work and success with the relationship between their distinctive knowledge and both their daily practice and their exercise of influence: "it is necessary to understand how knowledge gets translated into action, which means understanding the human institutions that mediate between knowledge and power." Freidson is describing the institutionalization of formal knowledge in American society. Formalization is a process of theory formation or systematic reasoned explanation, the pervasive use of reason sustained, where possible, by measurement.^[18]

Recent sociological writing on the professions strongly associates formal knowledge with the universities, where it is produced, taught, and validated; the prestige of higher learning is said to benefit professions. We question this association. In doing so, we continue to follow the lead of Freidson, who summarizes the basic thesis of his recent book in this fashion:

the actual substance of the knowledge that is ultimately involved in influencing human activities is different from the formal knowledge that is asserted by academics and other authorities.... Down at the level of everyday human experience... formal knowledge is transformed and modified by the activities of those participating in its use. (1986:xi)

Although we agree with much that Freidson says about firsthand experience and situational judgment and about the influence of the power, interest, and knowledge of clients on the selection of professional knowledge, we want to make problematic whether formal and practical knowledge are linked by the processes of transformation and modification. The practice of law mobilizes much knowledge that is neither situational judgment nor formal knowledge.

We consider the use of knowledge in legal practice at two levels. Some knowledge separates lawyers from laypersons, regardless of whether the lawyers know particular procedures, cases, or laws. Lawyers have a distinct way of thinking, which nonlawyers do not share. This point is made most strongly by Bourdieu (1987:828 ff.), who interprets the restriction of the "judicial space" to those who know how to function within it as a means of separating it from the rest of social life in order to imbue its decisions with an aura of neutrality. Lawyers gain entry by their ability to distance themselves from ordinary common sense and ideas of fairness; they learn special techniques of reasoning and a "universalizing attitude" (ibid., 820). These and related skills are transmitted implicitly (ibid., 819 n. 25). Dezalay suggests that the emphasis on these skills, which can be learned at home or through apprenticeship, favors those raised in legal families, whereas anyone can learn rationalized or codified legal knowledge.^[19]

Writers as different as Cain (1976) and Simpson (1973) also have em-

phasized that the coherence of legal practitioners owes more to convention than to knowledge of rules. In describing the shared understandings of common law judges before the emergence of formal rules of precedent, Simpson (1973) prefigures Bourdieu's remark (1987:833) that the "predictability and calculability that Weber imputed to 'rational law' doubtless arise more than anything else from the consistency and homogeneity of the legal habitus."

At this more general level, what lawyers know is how to distance themselves from their clients and the world within which clients live, translating the latters' wishes into legal, language while purging their claims of emotion and particularity (Cain, 1979). These skills should not be confused with the formal knowledge they acquire in universities, even if in some countries the very formality of that knowledge enlarges the necessary social distance between the courts and the disputes they adjudicate.

In the remainder of this section we seek to specify the uses of knowledge in legal practice in order to determine whether it is a modified form of what is taught in universities, as Freidson suggests. We believe it is not—that practice has its own demands,^[20] We draw exclusively on American, English, and French studies; in the spirit of the Working Group we seek to develop lines of inquiry that researchers can explore in other countries. Although there is some information about university teaching, we know little about the knowledge used in practice and even less about the relationship between the two. Finally, statements about the prestige or authority of a profession and its members and about the bases of that authority are inherently speculative.

Any comments on "formal" legal knowledge run the risk of undue attention to the American experience; but since our purpose is to trace the application of knowledge in legal practice, much of the literature is irrelevant. An obvious starting point would seem to be Weber's analysis of German legal thought, but he says little or nothing about the extent to which practitioners used the rationalized system he describes.^[21] It would be fruitful to investigate the impact of academic scholarship on judicial decision-making, as in the English law of international trade or the widespread citation of law review articles by American judges. American lawyers who taught or wrote about poverty law starting in the 1960s presumably hoped to influence practice.^[22] In these latter examples, however, academic lawyers were more likely to be analyzing particular issues than to be formalizing or rationalizing entire bodies of law, which is what interests Freidson.

We prefer to approach the topic more generally. The process of rationalization affects the totality of outcomes of the legal system, whereas practitioners are concerned with the interests of their clients.^[23] These two perspectives may coincide by accident, but usually they will diverge and

sometimes even conflict. If formalization begins with the immediate concerns of practitioners, academics who participate in the process may dash with colleagues more removed from practice,^[24] especially in environments such as England, where academics only recently differentiated themselves from practitioners.^[25] Dezalay (1986) describes the dilemma of labor lawyers who fear open identification with union interests.

Dezalay offers one view of the relations among practitioners, academics, and judges, which reveals how the process of formalization can shape the law without producing knowledge that is applied in practice. He sees academics and the higher judiciary engaged in a joint enterprise of purifying the law of social conflicts and ordinary language. By preserving their monopoly over legitimate interpretations, they can dismiss the unapproved innovations of practitioners as "so many marks of incompetence and error" (Dezalay, 1986: 101). By subordinating themselves to the legality thus produced, they can claim social neutrality and technical expertise (ibid., 102-103). Even this account does not fully support the sociological model described above, however, for rationalization is a joint activity of judges and academics rather than the sole domain of the latter. It also contrasts markedly with those (common law) countries where the judiciary alone validates the law and "purity" is not a legal virtue.

Dezalay believes that the creation of pure law as an autonomous sphere of knowledge enables the legal profession to distinguish its technical skills from those possessed by other functional specialists also engaged in symbolic mediation (just as Harry Arthurs [1985] saw lawyers in Victorian England promoting the ideology of legalism). From our Anglo-American viewpoint we argue, instead, that what legal professionals offer is "know-how" rather than formal knowledge. In support of this position we invoke not just the historical reliance of lawyers on apprenticeship as a mode of training but also their contemporary concern with competence and skills—what lawyers can do rather than what they know —and with pedagogical practices that can instill those skills.^[26] A standard contemporary definition of competence renders legal knowledge only one of several elements (ALI-ABA, 1981: 56). Nor is "know-how" reducible to "knowledge-in-action," the skills of a tightrope walker, which do not consist "in rules or plans which we entertain in the mind prior to action" (Schon, 1983:50-51).^[27] Karpik (1985:574) describes the way in which the domains of law form a solid and precise language for French avocats. Each delimits an ensemble of knowledge and know-how ("de savoirs et de savoir-faire") and is associated with particular courts and tribunals as well as clients: "habiletés, instances et dientëles [skills, jurisdictions, and clienteles]." These are not generalized skills but techniques developed and deployed in particular, recurrent contexts.

Recent research on lawyers' work in England and the United States

coincides with the elaboration by Galanter and others of a framework for analyzing the civil litigation process.^[28] They describe a world in which participants have clearly defined goals for whose attainment they use, or threaten to use, legal provisions and procedures. Participants seek and obtain endowments not only from legal rules but also from ail the direct and indirect consequences of the legal system, including its institutional and processual characteristics. The effects are particularly diffuse in negotiations, where participants can compensate for weakness in one area by invoking strengths in another that may be legally unrelated. In the United States, for instance, defense counsel may seek to frustrate a criminal prosecution or obtain a reduced sentence by demanding or threatening the disclosure of information the government fears may be harmful to national security.^[29] The emergence of such strategies requires lawyers to mobilize a range of expertise that transcends the knowledge of legal rules and advocacy skills; a prosecutor may have to develop a new response to such threats.^[30]

This research combines the methods of participant observation, interviews, and questionnaires (Flood, 1986; Ingleby, 1988; Sarat & Felstiner, 1986; Griffiths, 1986; Germ, 1987; Mann, 1985; Erlanger et al., 1987). Mann characterizes the essence of the defense function in white-collar crime as information control and explores the numerous factors affecting the degree of control an attorney can exercise (1985: 231-240). He discusses the extent to which evidence is exposed for government use, ambiguities in the definition of crime, uncertainty in sentencing practices, the relevance of client resources, agency precharge review, investigatory procedures, and the prosecutorial standard for indictment. Each of these creates endowments available to defense attorneys.

This enlarged picture of legal practice reveals numerous diverse opportunities for creating innovative forms of legal expertise, and lawyers have taken full advantage.^[31] First, there is the emergence of white-collar criminal defense as a specialty (Mann, 1985:21 ff.). Such clients previously had been an insignificant component of a general trial practice; now lawyers are leaving the U.S. Attorney's office and joining or setting up small specialty firms or white-collar defense departments within larger firms. If older lawyers continue to believe that general trial experience is more useful than prosecutorial experience, younger lawyers who present themselves as specialists are expressing "a real professional identity, although such statements are also something of an advertising strategy" (Mann, 1985: 24). Mann's invocation of the market reinforces Dezalay's reference to "la promotion d'un produit juridique, plus performant, mieux adapté aux besoins d'une clientë1e potentielle [the promotion of a juridical product, more efficacious and better adapted to the needs of a potential clientele]" (1987:5). It is no accident, according to Dezalay, that such innovations

have been developed in tax and business law, where both the monetary amounts at stake and the client resources stimulate the imagination of jurists more effectively than they do in the fields of divorce or juvenile delinquency.^[32]

The divergent views about the appropriate background for white-collar criminal defense lawyers conceal a number of debates about the value of different experiences and the benefits they confer. Those with experience as prosecutors emphasize the importance of knowing and being known by their former colleagues, although they are deliberately vague about the advantages that such knowledge confers.^[33] More generally, Mann praises the high standard of practice in the U.S. Attorney's Office in the Southern District of New York (1985:20). Those who assert the importance of general trial experience seek to project a very different image of both the work and the kind of person best qualified to perform it, which may correspond to an ideology of legal practice as well as to the material interests of those advancing this viewpoint.

Because Mann starts from the assumption that those charged with white-collar crimes are guilty of something, he sees the goal of the defense attorney as using both rights and ambiguities to control the information available to the prosecution. The problem of expertise, therefore, is not simply whether it is being used effectively on behalf of the client (the critique of many who accuse professionals of failing to meet their side of the "bargain") but also whether its use is consistent with the broader social interests underlying the criminal law. Mann deplores the "mistakes" and "incompetence" of defense counsel who unintentionally or negligently disclose inculpatory evidence about their clients (1985:83). All the skills that Mann describes concern information control. Thus, when he speaks of the "refined" analytic skills an accountant brings to the review and presentation of financial records, this is simply another form of expertise needed by defense counsel (although lawyers may prefer to buy it from another profession rather than acquire it themselves). The purpose is to determine whether the client's records contain material that might arouse suspicion or demand explanation, thereby affecting the relationship between client, defense counsel, and prosecutor.

Sometimes the lawyer's knowledge is unsurprising and uncontroversial—for instance, that IRS review procedures exclude an agent who already has formed an opinion about the case (Mann, 1985: 190-191). Similarly, lawyers develop skill in portraying their clients as innocent—or at least in convincing prosecutors that they cannot prove the client is guilty (ibid., 192). Knowledge of government record-keeping practices and skill at using the Freedom of Information Act prompt more ambiguous strategies. Most lawyers would see nothing wrong with a colleague's attempt to obtain an IRS report acknowledging that it was customary for members

of a particular industry not to report certain transactions and acquiescing in this practice; and they would approve the lawyer's use of the report to argue against prosecution for such nonreporting. Knowledge that the IRS was unable to verify tax returns against bank records of interest paid also is clearly helpful to clients; but few Americans may believe that that law schools ought to teach such things. Lawyers employ even more questionable skills in seeking to neutralize, overlook, or suppress information from the client about past—or, even worse, continuing—criminality (ibid., 113).

It is difficult to construct an account of these various kinds of knowledge, mistake, or incompetence that omits all reference to the values underlying the legal system and lawyers. Clearly knowledge and expertise cannot be understood without regard to purposes.^[34] This is true not only about "knowing how" but also about "knowing that." Knowing the content of particular statutes and decisions, for instance, is socially irrelevant- without knowing how to use them to formulate rules; and knowing those rules can only mean knowing how to apply them to particular facts and to plan actions on that basis.

Germ's (1987) work on the settlement process in personal injury cases in England describes the imbalance between the parties to litigation. She shows how the inevitable and desirable flexibility within tort law can create ambiguities or uncertainties that will be exploited by the party with greater resources and smaller stakes. Some of the plaintiff's disadvantage can be offset if the plaintiff's lawyer prepares with sufficient thoroughness to make credible the threat to go to trial, in order to maximize the defendant's settlement offer. The principal division among plaintiff's personal injury lawyers in England, therefore, is between those with extensive trial experience, some of whom adopt uncooperative and aggressive attitudes, and inexperienced litigators, who associate settlement with maintaining a "reasonable" and cooperative relationship with insurance company representatives.^[35]

Here, again, the knowledge and skills are specific to the divergent goals of plaintiffs and defendants. Although both need to know changes in court procedure and recent decisions and settlements (particularly the amount of general damages), even this latter information is subject to construction. Insurance representatives try to get low awards reported and use their continuing relations with local solicitors (whom they retain in individual cases) to obtain access to such information; this behavior, in turn, becomes a useful piece of knowledge for those representing plaintiffs. Road accidents rarely involve complicated legal issues, and even the law of factory accidents can be learned quickly. Nevertheless, experience enhances the competence of litigators, encouraging them to reject inadequate settlement offers from insurance representatives, who readily identify ignorance and

inexperience in an adversary (Germ, 1987: 131-133). The relevant skills involve preparation for trial, full investigation, and contacts with the right physicians (a variation on the theme that the important thing in law practice is "who you know, not what you know"). They also include the capacity to evaluate an adversary in face-to-face interaction in order to find out what the other side knows and to evaluate its bargaining position.

Germ quotes one solicitor who prefers to take a "reasonable" attitude as saying that, above some threshhold, "as long as the client is happy and is satisfied, then I think that probably is the correct measure of damages" (1987: 136). If one assumes that the lawyer's aim should be to maximize damages, then such a lawyer is incompetent. However, if the situation has been explained to the client, then such an approach may simply reflect the client's aversion to risk or stress. Some may feel that the lawyer is obligated to take responsibility away from the client and encourage continued litigation, but such a decision may be inconsistent with the lawyer's own personality and may also constitute unwarranted paternalism toward the client. This brief discussion again suggests that skill and competence can be evaluated only in terms of the purpose of a lawyer's services.^[36]

While Genn and Mann are describing negotiations in the shadow of indictment or adjudication (Mnookin & Kornhauser, 1979; Erlanger et al., 1987), Flood (1986) observed commercial practice, where litigation is regarded as "on another plane" from negotiation. In one instance, legal advisers kept a low profile in order to preserve the informal relationship between their client and his employer; nevertheless, they drafted a letter for him, which was construed as a resignation, with fatal consequences for their client's continuing employment. Such mistakes indicate the complexity of the possibilities a lawyer must anticipate and may represent a mirror image of lawyerly skills. In another example the lawyer sought to obtain the best terms for a loan to his client by making a demand on the lender that could be relinquished in exchange for another, more important provision. Since this is a standard negotiating technique, we can see that some relevant skills are not peculiar to lawyers, even if lawyers employ them in situations where other forms of legal knowledge also are essential. Flood describes other skills in the realm of intraoffice behavior, which lead him to characterize lawyers' work as "not just the accomplishing of a set purpose for the client, but a political endeavor" (1986: 106).

Bosk (1987) emphasized the difference between public and private knowledge and urged us to consider what gets hidden. We might classify special techniques as private knowledge; the strategies for neutralizing inconvenient knowledge (described by Mann) and for maintaining one's intraoffice position (described by Flood) well illustrate the category of "hidden" knowledge. The latter are important because they reveal the lack of congruence between lawyers' public self-presentation and the realities of practice.^[37]

A next step in studies of formal and applied knowledge would be to develop analytic tools analogous to the notions of diagnosis and prescription in medicine. These are folk as well as analytic concepts, and the absence of obvious equivalents in law is itself a matter of interest. At the same time, we should be cautious about using a catalog of lawyers' skills as a source of insight into the bases of their authority (individual or collective), since that authority depends on the degree to which others (including clients) perceive and value these skills and the ways in which they are transmuted into reputation among colleagues or within the wider community.^[38] Just as the diffusion of knowledge among lawyers is a fruitful approach, so we urge research on the construction of lawyer reputations (Heinz & Laumann, 1982).^[39]

CONCLUSION

The research agenda proposed above is extremely ambitious. The questions are broad; they call for comparisons across occupations, national boundaries, and historical periods; the theoretical and conceptual frameworks require further elaboration; and there are serious methodological obstacles to studying lawyers at work. Furthermore, many investigators undoubtedly will wish to continue pursuing the more traditional questions posed by the sociology of occupations. These are particularly timely because lawyers in many countries are encountering profound challenges to their professional hegemony—from other occupations, the revolution in information technology, large multidisciplinary service firms, and foreign competitors.

However, we believe that it is equally important to return to the questions that originally made the sociology of lawyers a central element of the sociology of law. If law is deeply implicated in politics (modes of governance and challenges to authority), economics (collective activity and exchange), society (interpersonal relationships), and culture (concepts of justice and attitudes toward conflict), then lawyers may play a central role in mediating this interaction. It is important to understand the different legal professions different societies produce and the ways those professions both sustain and change their societies. What, for instance, is the connection between the things a society values and where value is concentrated, on one hand, and the role of lawyers in acquiring and defending that value on the other hand? The balance of advantage—political, economic, social, and cultural—is a constant preoccupation of sociology of law, as of all social science. What do lawyers contribute to preserving or redressing inequality and hierarchy? Professional ideology, often formalized in ethical codes, prescribes how lawyers ought to behave. The roots of sociology of law lie in the recognition that formal law

never is an adequate account of behavior, even that of legal officials. A vital inquiry thus becomes what lawyers actually do for their clients and employers (public and private), how this is shaped by lawyer-client and employment relationships, and what difference it makes that lawyers are doing these things. Another strand of sociology of law derives from jurisprudential concerns with the nature of legal reasoning. However, whereas philosophers typically address only a single element of professional thought processes—the polished final product embodied in appellate judicial decisions or legislative codes—sociologists must encompass the entire range of legal thought, the ways in which it is produced and validated, and relationships among the different forms as exhibited by law students, legal scholars and educators, private practitioners, laypersons, clients, and government officials (administrators, police, welfare officers), as well as judges and lawmakers. Sociologists also must examine the extent to which technical legal expertise confers moral and political authority, by contrasting it with other forms of knowledge—scientific, medical, economic, and religious.

By considering what distinguishes lawyers from other professionals rather than the traits that lawyers share with other workers, we will advance the broader ambitions of the sociology of law.

NOTES

An earlier version of this chapter was presented to the Working Group for Comparative Study of Legal Professions at the annual conference of the Law and Society Association in Vail, Colorado in June 1988. We are grateful for the comments of Terence Halliday, Yves Dezalay, Elizabeth Mertz, and Michael Powell and others who attended that panel. Richard Abel wrote the first two sections; Philip Lewis wrote the third. Richard Abel wishes to thank the UCLA Law School Dean's Fund, which supported his work on this chapter.

[1] What follows is a schematic account of important recent discussions by Dezalay (1986, 1987) and Arthurs (1985); we also have been stimulated by some quotations in Mann (1985: 142).

[2] Physicians are notorious for expressing views on health-related matters that exceed their technical expertise. They may do so partly because they must live with the consequences of, say, rationing health care or failing to distribute clean needles to drug addicts. Even though they may not seek to exercise moral authority, the influence they wield remains a moral question.

[3] A lawyer's authority may vary greatly with the context. Clients may consult particular lawyers because they view them as experts on litigation strategy; however, they may not regard them as experts when the issue is law reform, even in the same substantive area, perhaps because they believe that the lawyers are too closely associated with special interests.

[4] The authority of knowledge may be more open to challenge the broader the social domain it affects. Preventive public health always has been more hotly contested than the treatment of particular patients. Law generally claims to influence a wider slice of social life than does medicine.

[5] Hartmann (1988) points out that because law lacks scientifically founded systematics its partial sectors can often be mastered separately, which facilitates outside competition. This observation is important, but we cannot pursue it here.

[6] In trying to respond to Halliday's arguments about the contrast between the scientific and normative bases of professional authority we have focused on scientists, physicians, and lawyers, excluding the clergy and the military. Perhaps we should have compared lawyers with accountants, tax advisors, and business consultants—occupations whose fields of expertise overlap with that of lawyers and who compete with lawyers. A satisfactory account would have to be grounded in the histories of each particular occupation, however, a task we cannot undertake at this stage.

[7] Thus, the English Law Commission generally confined itself to the reform of "lawyers' law," whereas its Canadian counterpart undertook a far wider range of tasks.

Dezalay offers a fuller expression of this view:

ces nouveaux grands prêtres n'échappent pas plus que leurs prédécesseurs aux régles du jeu de tout champ symbolique qui imposent aux producteurs quels qu'ils soient—prêtres, juristes, experts, savants—de limiter leurs propres ambitions pour produire la croyance sans laquelle leur pouvoir s'effondre, d'autodiscipliner l'exercice de la pouvoir pour le faire accepter comme 1égitime par ceux aux dépens de qui il s'exerce [these new high priests who, no more than their predecessors, can escape from the rules of the game in all symbolic fields, which require the producers, whoever they are—priests, jurists, experts, scholars—to limit their own ambitions in order to inspire the belief without which their power collapses, to discipline the exercise of their power in order to ensure its legitimacy among those on whom its exercise depends]. (1987: 9; see also 1986: 91)

Both Church of England and American Catholic bishops recently have been criticized for expressing views on economic policy.

[8] According to Sarat and Felstiner (1986), however, American divorce lawyers present the law to their clients as radically uncertain and arbitrary.

[9] Even lawyers who emphasize the manipulability of law (e.g., an informant quoted by Mann [1985: 142]) acknowledged that there are limits on the likelihood of success, although these are not sufficient to deprive them of the normative freedom they seek.

[10] Once decisions have been reported, they become known fairly quickly, especially in those countries where they are available electronically (although dissemination may be much slower in countries with less advanced technology). However, there is no systematic way to disseminate innovations in drafting even

after they gain legal acceptance. Powell (1987), however, describes the speedy diffusion of knowledge about the "poison pill" device to inhibit hostile takeovers; in this case the field was specialized enough to have a press of its own, and the device needed to be publicized in order to be effective.

[11] A few lawyers specialize in changing the law: lobbyists, law reform commissioners, legislative drafters, public interest lawyers, and house counsel for trade associations and other collective interests.

[12] In England, statutes previously were named after those who carried them through Parliament; that remains true in the United States and, to some extent, in France. Collegial decision-making reduces the degree to which the idiosyncracies of judges are known in civil law countries.

[13] For the view that academic lawyers are to "practitioners of the art of law" what biologists are to physicians, see Duguit, cited in Dezalay (1986:105 n. 7).

[14] In medicine, publication may credit an innovation to a particular practitioner or group; it is very unusual for legal innovations to be similarly credited (even if English legal historians know who invented "trustees to preserve contingent remainders" in the seventeenth century).

[15] Many tax-avoidance schemes sold in England in the late 1970s failed as a result of later court decisions. It would seem artificial to regard them as having passed an initial peer review but failing a later, more rigorous test, since there is no agreed testing method other than court approval. Cures for physical ailments do not need the validation of scientific testing if the patient believes they work, but taxes rarely can be avoided without satisfying a court.

[16] Self-validation cannot guarantee success, but it may strengthen the successful (and its absence may weaken those who are failing). Might this be illustrated by the changing fortunes of fundamentalist and established religions?

[17] This chapter emphasizes those elements in legal practice favoring the traditional view among common lawyers that everything a practitioner should know can be learned on the job and that university legal education is superfluous. Even now the English Bar examinations are being changed to emphasize practical needs. Young German Anwälte complain of the lack of practical training (Hommerich, 1988).

[18] Freidson is referring to processes that start from particular experience and move toward formality; the historical claim of the professions, by contrast, is that they use their special knowledge to order particular experience. Freidson is describing the nature of formal knowledge, not its relation to professional work (although each may influence the other).

[19] Dezalay's comments were made at the meetings of the Research Committee on Sociology of Law and the Law and Society Association in May and June 1988. The European Economic Community intends to allow legal professionals qualified in one country to practice in another once they have passed the latter's examination. This will certainly diminish the significance of the uncodified skills possessed by lawyers.

[20] In a personal communication, Eliot Freidson has suggested that the more closely one views professional practice, the less connected to formal knowledge it appears. He cites Latour and Woolgar, who refer to the "craft practice" and "craftwork" of scientists (1979:106, 257). For a similar contrast between formal and informal accounts of scientific research, see Gilbert and Mulkay (1984).

[21] The use of economic theory by American judges may offer a contemporary parallel.

[22] Activist lawyers may have chosen to become teachers for other reasons.

[23] Even if a significant number of practitioners were motivated by self-interest or ideology, as sometimes is alleged, their objectives still are likely to be narrow compared to the ambitious goals of rationalization.

[24] There also may be consequences for relative status: clinical legal education, by focusing on the poor, may seem less "academic" than courses on negotiation, whereas tax planning for the wealthy may enjoy the same status as a discussion of tax policy.

[25] It may be relevant that civil procedure is still hardly a respectable subject in England.

[26] The process view, which we mentioned earlier, emphasizes "knowing how" to argue about the law over "knowing that" the law has a specific content.

[27] We owe this reference to John Flood, who has kindly allowed us to refer to his two unpublished papers on the rationality of lawyers.

[28] The criminal process might also be described in similar terms, but no one has tried to do so. It is no accident that Mann (1985), who is discussing the criminal process, refers to none of the standard literature on the subject.

[29] The American origins of this type of account, the newsworthiness of law in the United States, and the relative lack of professional inhibitions in litigation strategy suggest that the United States may be a special, and extreme, case. Yet, scholars in other countries have found this approach useful; furthermore, the tactical limitations that lawyers accept, and why they do so, seem to be important topics for comparative research.

[30] "Prosecutor Who Knows How to Keep a Secret," New York Times, January 14, 1988.

[31] Mann is able to describe white-collar criminal defense practice only because specialization produces recurrent and typical situations. His account is particularly valuable because it uncovers the orgins, method, and consequences of specialization.

[32] Dezalay is speaking of particular innovations rather than subject matter specialization, but the association between expertise and market forces is the same (although he overlooks the innovation in salaried services for the poor). He regards the possibility of "homologation" (approval of a legal device) as more important than the resources of the clientele. Client resources are necessary, if not sufficient, however, for the strategies Mann describes (1985: 235-236); and since it is the attorney and his general skills that are being marketed, judicial approval

plays a lesser role. See, however, the reference to "Kovel" accountants (ibid., 62 ff.), who investigate on behalf of attorneys and whose work product was held privileged in U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961). Market control theories need to pay dose attention to the difference between particular identifiable products, such as the poison-pill defense whose diffusion is traced by Powell (1987), and the generalized expertise of a defense attorney who may have to choose between strategies and techniques. While the former product is more "tangible"—to use a key, although unexplained, concept introduced by Larson (1977: 14), both receive much of their validation from practical success and none at all from systems of formal education.

[33] Mann also refers to the advantages of being known to one's opponent as honest and trustworthy (1985: 77-79).

[34] Williams (1983: 8) argues that the effectiveness of negotiation can be defined only if one considers the purposes and effects of the legal system as a whole and of the lawyers working within it.

[35] In England, lawyers act regularly for trade union members and expect to be reimbursed by the union if the victim loses. Neither Germ (1987) nor Mann (1985) provides any evidence that lawyers compromise the interests of clients in order to maintain good relations with the adversaries with whom they deal (but see Rosenthal [1974] and Katz [1982]). Those whom Germ described as cooperative seemed to believe that they were advancing the interests of their clients, although such cooperation also reduced the time they had to spend on preparation. Germ did notice a tendency for solicitors not to apply for legal aid for eligible clients; legal aid is financially disadvantageous to the solicitor, although it usually improves the client's bargaining position. "Reasonableness" has a long and discreditable history in the context of legal aid for the poor (Katz, 1982). Macaulay (1979) has described it among Wisconsin consumer lawyers. Here, however, we are concerned with its relationship to experience and skill.

[36] Garth (1983) suggests that pleas for greater competence actually amount to an attempt to encourage the expenditure of effort disproportionate to both the amount in dispute and any fee that could be obtained. More generally, all such value judgments can be seen as elements in intra- and interprofessional competition for the right to impose a view of appropriateness. Ingleby (1988) shows some of the ways in which solicitors perform the functions of mediators in divorce cases, even when the parties remain adversarial. His account is thoroughly contextualized, revealing how sensitive lawyers are to the impact of their actions on third parties, whether public authorities (in the areas of housing, welfare, and tax) or private lending institutions.

[37] Dezaley has pointed out the tension between the absence of patent protection for legal innovations and the need for judicial homologation of their validity, which makes them publicly available. In the United States, some physicians have sought patents for innovative treatments.

[38] Such outside judgments often are very general—for instance, that lawyers

know about claims for personal injury and are appropriate resources for this kind of problem. What lawyers are believed to know thus influences the problems that are presented to them as well as their individual or collective authority.

[39] Have these mechanisms changed as professionals have grown less insistent (or less successful in persuading their audience) that they alone can judge each other? Has specialization allowed experience to serve as an indicator of ability? In this area, concentration on the American experience might be particularly misleading.

REFERENCES

Abel, Richard L. 1979. "The Rise of Capitalism and the Transformation of Disputing: From Confrontations over Honor to Competition for Property," 27 UCLA Law Review 223 .

____. 1981. "Why Does the American Bar Association Promulgate Ethical Rules?" 59 Texas Law Review 639.

____. 1984. "Custom, Rules, Administration, Community," 28 Journal of African Law 6.

____. 1985 a. "Law Without Politics: Legal Aid under Advanced Capitalism," 32 UCLA Law Review 474.

____, ed. 1985 b. "Lawyers and the Power to Change," 7(1) Law & Policy (special issue).

American Law Institute-American Bar Association (ALI-ABA). 1981. Enhancing the Competence of Lawyers: The Report on the Houston Conference. Chicago: ALI-ABA Committee on Continuing Professional Education.

Arthurs, Harry W. 1985. "Without the Law": Administrative Justice and Legal Pluralism in Nineteenth Century England . Toronto: University of Toronto Press.

Ball, Howard. 1985. Justice Downwind: America's Atomic Testing Program in the 1950s. New York: Oxford University Press.

Barkan, Steven E. 1985. Protesters on Trial: Criminal Justice in the Southern Civil Rights and Vietnam Antiwar Movements . New Brunswick, N.J.: Rutgers University Press.

Black, Donald. 1976. The Behavior of Law. New York: Academic Press.

____. 1984. "Social Control as a Dependent Variable," in Donald Black, ed., Toward a General Theory of Social Control, vol. 1: Fundamentals . New York: Academic Press.

Blumberg, Abraham S. 1967. "The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession," 1(2) Law & Society Review 15.

Bosk, Charles. 1987. Remarks delivered to the Working Group for Comparative Study of Legal Professions at the Annual Conference of the Law and Society Association, Washington, D.C., June.

Bourdieu, Pierre. 1976. "Le Champ Scientifique," 2 Actes de la Recherche en Sciences Sociales 88.

____. 1987. "The Force of Law: Toward a Sociology of the Juridical Field," 38 Hastings Law Journal 805.

Brodeur, Paul. 1985. Outrageous Misconduct: The Asbestos Industry on Trial. New York: Pantheon.

Cain, Maureen. 1976. "Necessarily Out of Touch: Thoughts on the social organisation of the Bar," in Pat Carlen, ed., The Sociology of Law. Keele: Sociological Review Monographs (No. 23).

____. 1979. "The General Practice Lawyer and the Client: Towards a Radical Conception," 7 International Journal of the Sociology of Law 331.

Carlin, Jerome E. 1962. Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, N.J.: Rutgers University Press.

Curran, Barbara A. 1977. The Legal Needs of the Public . Chicago: American Bar Foundation.

Danet, Brenda, Kenneth B. Hoffman, and Nicole C. Kermish. 1980. "Obstacles to the Study of Lawyer-client Interaction: The Biography of a Failure," 14 Law & Society Review 905.

Dezalay, Yves. 1986. "From Mediation to Pure Law: Practice and Scholarly Representation within the Legal Sphere," 14 International Journal of the Sociology of Law 89.

____. 1987. "La restructuration du champ des professionels et la restructuration des entreprises" (unpublished manuscript).

Eisenstein, James. 1978. Counsel for the United States: U.S. Attorneys in the Political and Legal Systems. Baltimore, Md.: Johns Hopkins University Press.

Erikson, Kai T. 1976. Everything in Its Path: Destruction of Community in the Buffalo Creek Flood. New York: Simon & Schuster.

Erlanger, Howard S., Elizabeth Chambliss, and Marygold S. Melli. 1987. "Participation and Flexibility in Informal Processes: Cautions from the Divorce Context," 21 Law & Society Review 585.

Ewing, Sally. 1987. "Formal Justice and the Spirit of Capitalism: Max Weber's Sociology of Law," 21 Law & Society Review 487.

Felstiner, William L. F., Richard L. Abel, and Austin Sarat. 1980/81. "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming...," 15 Law & Society Review 631.

Flemming, Roy B. 1986. "Elements of the Defense Attorney's Craft: An Adaptive Expectations Model of the Preliminary Hearing Decision," 8 Law & Policy 33.

Flood, John. 1986. "Counselors and Clients: The Art and Science of Lawyering." Presented to the International Conference on Exploring and Expanding the Content of Clinical Legal Education and Scholarship, Los Angeles.

Freidson, Eliot. 1986. Professional Powers: A Study of the Institutionalization of Formal Knowledge. Chicago: University of Chicago Press.

Galanter, Marc. 1974. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," 9 Law & Society Review 95.

____. 1981. "Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law," 19 Journal of Legal Pluralism 1.

____. 1983. "Mega-Law and Mega-Lawyering in the Contemporary United States," in Robert Dingwall and Philip Lewis, eds., The Sociology of the Professions: Lawyers, Doctors and Others. London: Macmillan.

Garth, Bryant G. 1983. "Rethinking the Profession's Approach to Collective Self-Improvement: Competence and the Consumer Perspective," 1983 Wisconsin Law Review 639.

Gernn, Hazel. 1987. Hard Bargaining: Out of Court Settlement in Personal Injury Actions. Oxford: Clarendon Press.

Ghai, Yash P. 1976. "Notes Towards a Theory of Law and Ideology: Tanzanian Perspectives," 13 African Law Studies 31.

Gilbert, Geoffrey N., and Michael Mulkay. 1984. Opening Pandora's Box: A Sociological Analysis of Scientists' Discourse . Cambridge: Cambridge University Press.

Gluckman, Max. 1965. The Ideas in Barotse Jurisprudence. New Haven, Conn.: Yale University Press.

Goulden, Joseph C. 1972. The Superlawyers: The Small and Powerful World of the Great Washington Law Firms . New York: Weybright & Talley.

Green, Mark J. 1975. The Other Government: The Unseen Power of Washington Lawyers. New York: Grossman.

Griffiths, John. 1984. "The Division of Labor in Social Control," in Donald Black, ed., Toward a General Theory of Social Control , vol. 1: Fundamentals . New York: Academic Press.

____. 1986. "What Do Dutch Lawyers Actually Do in Divorce Cases?" 20 Law & Society Review 135.

Haley, John Owen. 1978. "The Myth of the Reluctant Litigant," 4 Journal of Japanese Studies 359.

Halliday, Terence C. 1985. "Knowledge Mandates: Collective Influence by Scientific Normative and Syncretic Professions," 36 British Journal of Sociology 421.

____. 1987. Beyond Monopoly: Lawyers, State Crises and Professional Empowerment. Chicago: University of Chicago Press.

Handler, Joel F., Ellen Jane Hollingsworth, and Howard S. Erlanger. 1978. Lawyers and the Pursuit of Legal Rights. New York: Academic Press.

Hartmann, Michael. 1988. "Systemic Rationalization and Professional Work." Presented to the Annual Conference of the Law and Society Association, Vail Colorado, June.

Heinz, John P., and Edward O. Laumann. 1982. Chicago Lawyers: The Social Structure of the Bar. Chicago: American Bar Foundation; New York: Russell Sage Foundation.

Hoebel, E. Adamson. 1954. The Law of Primitive Man . Cambridge, Mass.: Harvard University Press.

Hommerich, Christoph. 1988. "Die Anwaltschaft unter Expansionsdruck," 5/1988 AnwBl (Beilage).

Hosticka, Carl J. 1979. "We Don't Care About What Happened, We Only Care About What Is Going to Happen: Lawyer-Client Negotiations of Reality," 26 Social Problems 599.

Hurst, James Willard. 1950. The Growth of American Law: The Law Makers . Boston: Little, Brown.

Illich, Ivan, Irving Kenneth Zola, John McKnight, Jonathan Caplan, and Harley Shaiken. 1977. i London: Marion Boyars.

Ingleby, Richard. 1988. "The Solicitor as Intermediary," in Robert Dingwall and John M. Eekelaar, eds., Divorce Mediation and Legal Processes. Oxford: Oxford University Press.

Ino, Masaru. 1975. "Diary of a Plaintiffs' Attorneys' Team in the Thalidomide Litigation," 8 Law in Japan 136.

Insight Team of the Sunday Times of London. 1979. Suffer the Children: The Story of Thalidomide . New York: Viking Press.

Janson, Donald. 1988. "Cigarette Maker Assessed Damages in Smoker's Death," New York Times (June 14), p. 1.

Kagan, Robert A., and Robert Eli Rosen. 1985. "On the Social Significance of Large Law Firm Practice," 37 Stanford Law Review 399.

Karpik, Lucien. 1985. "Avocat: Une Nouvelle Profession?" 26 Revue française de sociologie 571.

Katz, Jack. 1982. Poor People's Lawyers in Transition. New Brunswick, N.J.: Rutgers University Press.

Kawashima, Takeyoshi. 1963. "Dispute Resolution in Contemporary Japan," in Arthur von Mehren, ed., Law in Japan. Cambridge, Mass.: Harvard University Press.

Kurzman, Dan. 1988. A Killing Wind: Inside Union Carbide and the Bhopal Disaster. New York: McGraw-Hill.

Landon, Donald D. 1982. "Lawyers and Localities: The Interaction of Community Context and Professionalism," 1982 American Bar Foundation Research Journal 459.

____. 1985. "Clients, Colleagues, and Community: The Shaping of Zealous Advocacy," 1985 American Bar Foundation Research Journal 81.

Larson, Magali Sarfatti. 1977. The Rise of Professionalism: A Sociological Analysis . Berkeley, Los Angeles, London: University of California Press.

Latour, Bruno, and Steve Woolgar. 1979. Laboratory Life: The Social Construction of Scientific Facts . Beverly Hills, Calif.: Sage Publications.

Laumann, Edward O., and John P. Heinz, with Robert L. Nelson and Robert H. Salisbury. 1985. "Washington Lawyers and Others: The Structure of Washington Representation," 37 Stanford Law Review 465.

Law & Society Review. 1979. 'Plea Bargaining," 13(2) Law & Society Review (Winter; special issue).

Levine, Adeline Gordon. 1982. Love Canal. Science, Politics, and People . Lexington, Mass.: Lexington Books.

Llewellyn, Karl. 1960. The Common Law Tradition—Deciding Appeals . Boston: Little, Brown.

____. 1962. Jurisprudence: Realism in Theory and Practice . Chicago: University of Chicago Press.

Lopez, Gerald P. 1984. "Lay Lawyering," 32 UCLA Law Review 1.

Luban, David. 1984. "The Sources of Legal Ethics: A German-American Comparison of Lawyers' Professional Duties," 48 Rabels Zeitschrift 245.

Luckham, Robin. 1981a. "The Political Economy of Legal Professions: Towards a Framework for Comparison," in C. J. Dias, R. Luckham, D. O. Lynch, and J. C. N. Paul, eds., Lawyers in the Third World: Comparative and Developmental Perspectives. Uppsala: Scandinavian Institute of African Studies; New York: International Center for Law in Development.

____. 1981b. "Imperialism, Law and Structural Dependence: The Ghana Legal Profession," in C. J. Dias, R. Luckham, D. O. Lynch, and J. C. N. Paul, eds., Lawyers in the Third World: Comparative and Developmental Perspectives. Uppsala: Scandinavian Institute of African Studies; New York: International Center for Law in Development.

Macaulay, Stewart. 1963. "Non-Contractual Relations in Business: A Preliminary Study," 28 American Sociological Review 55.

____. 1979. "Lawyers and Consumer Protection Law," 14 Law & Society Review 115.

____. 1987a. "Private Government," in Leon Lipson and Stanton Wheeler, eds., Law and the Social Sciences. New York: Russell Sage Foundation.

____. 1987b. "Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports," 21 Law & Society Review 185.

Malsch, Marijke. 1988. "Can Lawyers Predict the Outcome of Their Cases?" Presented at the Annual Conference of the Law and Society Association, Vail, Colorado, June.

Mann, Kenneth. 1985. Defending White-Collar Crime: A Portrait of Attorneys at Work. New Haven, Conn.: Yale University Press.

Marshall, Loma. 1960. "!Kung Bushman Bands," 30 Africa 325.

Marvell, Thomas. 1978. Appellate Courts and Lawyers: Information-Gathering in the Adversary System. Westport, Conn.: Greenwood Press.

Matheny, Albert. 1979. "A Bibliography on Plea Bargaining," 13 Law & Society Review 661.

Mather, Lynn, and Barbara Yngvesson. 1980/81. "Language, Audience, and the Transformation of Disputes," 15 Law & Society Review 775.

McBarnet, Doreen. 184. "Law and Capital: The Role of Legal Form and Legal Actors," 12 International Journal of the Sociology of Law 231.

McGee, Kevin T. 1988. "Smoking Verdict: 'Suits rolling in,'" USA Today (June 14), p. 1.

Merry, Sally Engle. 1986. "Everyday Understandings of the Law in Working-Class America," 13 American Ethnologist 253.

Mintz, Morton. 1986. At Any Cost: Corporate Greed, Women, and the Dalkon Shield. New York: Pantheon.

Miyazawa, Setsuo. 1987. "Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior," 21 Law & Society Review 219.

Mnookin, Robert H., and Lewis Komhauser. 1979. "Bargaining in the Shadow of the Law: The Case of Divorce," 88 Yale Law Journal 950.

Nagel, Stuart. 1962. "Culture Patterns and Judicial Systems," 16 Vanderbilt Law Review 147.

Nelson, Robert L. 1988. Partners with Power: The Social Transformation of the Large Law Firm. Berkeley, Los Angeles, London: University of California Press.

Nelson, Robert L., John P. Heinz, Edward O. Laumann, and Robert H. Salisbury, 1987. "private Representation in Washington: Surveying the Structure of Influence," 1987 American Bar Foundation Research Journal 141.

Nelson, Robert L., and John P. Heinz, with Edward O. Laumann and Robert H. Salisbury. 1988. "Lawyers and the Structure of Influence in Washington," 22 Law & Society Review 237.

Newman, Katherine S. 1983. Law and Economic Organization: A Comparative Study of Preindustrial Societies. Cambridge: Cambridge University Press.

Nicholson, M. E. R. 1987. "The Basque Notary: An Intercultural Mediator," 15 International Journal of the Sociology of Law 85.

Nonet, Philippe, and Philip Selznick. 1978. Law and Society in Transition: Toward Responsive Law. New York: Harper & Row.

O'Gorman, Hubert. 1963. Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Practice. New York: Columbia University Press.

Partridge, A., and Gordon Bermant. 1978. The Quality of Advocacy in the Federal Courts. Washington, D.C.: Federal Judicial Center.

Pashukanis, E. B. 1980. Selected Writings on Marxi sm and Law (Piers Beime and Robert Sharlet, eds.). London: Academic Press.

Payer, Lynn. 1988. Medicine & Culture: Varieties of Treatment in the United States, England, West Germany, and France. New York: Henry Holt & Co.

Powell, Michael J. 1987. "Professional Innovation: Corporate Lawyers and Private Lawmaking" (unpublished manuscript).

Riley, Tom. 1987. The Price of a Life: One Woman's Death from Toxic Shock . Bethesda, Md.: Adler & Adler.

Robinson, Cyril D., and Richard Scaglion. 1987. "The Origin and Evolution of the Police Function in Society: Notes Toward a Theory," 21 Law & Society Review 109.

Rosen, Robert Eli. 1986. "Professions and Institutions: Lawyers and Corporations." Presented to the Working Group for Comparative Study of Legal Professions, New Delhi, August 16.

____. n.d. "Serving the Corporate Client: The Problem of Problem-Setting" (unpublished manuscript).

Rosenthal, Douglas E. 1974. Lawyer and Client: Who's In Charge? New York: Russell Sage Foundation.

Ross, H. Laurence. 1970. Settled Out of Court: The Social Process of Insurance Claims Adjustment. Chicago: Aldine.

Royal Commission on Legal Services. 1979. Final Report (2 vols.). London: Her Majesty's Stationery Office (Cmnd. 7648).

Royal Commission on Legal Services in Scotland. 1980. Report (2 vols.). Edinburgh: Her Majesty's Stationery Office (Grand. 7846).

Rueschemeyer, Dietrich, 1964. "Doctors and Lawyers; A Comment on the Theory of the Professions," 1 Canadian Review of Sociology and Anthropology 17 .

____. 1973. Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States. Cambridge, Mass.: Harvard University Press.

Salisbury, Robert H., with John P. Heinz, Edward O. Laumann, and Robert L. Nelson. 1986. "Who You Know versus What You Know: The Uses of Government Experience for Washington Lobbyists." Presented at the Annual Conference of the Midwest Political Science Association, Chicago, April.

Sarat, Austin, and William L. F. Felstiner. 1986. "Law and Stategy in the Divorce Lawyer's Office," 20 Law & Society Review 93.

Scheingold, Stuart A. 1988a. "Radical Lawyers and Socialist Ideals," 15 Journal of Law and Society 122.

____. 1988b. "The Social Organization of Radical Lawyers: The English Case." Presented to the Annual Conference of the Law and Society Association, Vail Colorado, June.

Schon, Donald A. 1983. The Reflective Practitioner: How Practitioners Think in Action. London: Temple Smith.

Schuck, Peter H. 1986. Agent Orange on Trial: Mass Toxic Disasters in the Courts. Cambridge, Mass.: Harvard University Press.

Schwartz, Richard D. 1954. "Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements," 63 Yale Law Journal 471.

____. 1976. "Law in the Kibbutz: A Response to Professor Shapiro," 10 Law & Society Review 439.

Schwartz, Richard D., and James C. Miller. 1904. "Legal Evolution and Societal Complexity," 70 American Journal of Sociology 159.

Shapiro, Allan E. 1976. "Law in the Kibbutz: A Reappraisal," 10 Law & Society Review 415.

____. 1985. "Law in the Kibbutz: The Search Continues." Paper presented to the Conference on Social Control and Justice: Inside or Outside the Law? (organized by the Research Committee on the Sociology of Deviance and Social Control of the International Sociological Association), Jerusalem, March/April.

Simpson, A. W. B. 1973. "The Common Law and Legal Theory," in A. W. B. Simpson, ed., Oxford Essays in Jurisprudence (2d series). Oxford: Clarendon Press.

Spangler, Eve. 1986. Lawyers for Hire: Salaried Professionals at Work . New Haven, Conn.: Yale University Press.

Steele, Eric H., and Raymond T. Nimmer. 1976. "Lawyers, Clients, and Professional Regulation," 1976 American Bar Foundation Research Journal 917.

Stem, Gerald M. 1977. The Buffalo Creek Disaster . New York: Vintage.

Sudnow, David. 1965. "Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office," 12 Social Problems 255.

Sugarman, David. 1986. Weber, Modernity and "the Peculiarity of the English": On the Rationality and Irrationality of Law, State and Society in Modern Britain . Madison, Wisc.: Institute for Legal Studies (Working Paper).

Teff, Harvey, and Colin Munro. 1976. Thalidomide: The Legal Aftermath . Westmead, England: Saxon House.

Teubner, Gunther. 1988. "Evolution of Autopoietic Law," in Gunther Teubner, ed., Autopoietic Law: A New Approach to Law and Society. Berlin: de Gruyter.

Twining, William. 1973. Karl Llewellyn and the Realist Movement. Norman, Okla.: University of Oklahoma Press.

Unger, Roberto Mangabeira. 1976. Law in Modem Society: Toward a Criticism of Social Theory. New York: Free Press.

Upham, Frank. 1976. "Litigation and Moral Consciousness in Japan: An Interpretative Analysis of Four Japanese Pollution Suits," 10 Law & Society Review 579.

Van Zyl Smit, Dirk. 1985. "'Professional' Patent Agents and the Development of the English Patent System," 13 International Journal of the Sociology of Law 79.

Wagatsuma, Hiroshi, and Arthur Rosett. 1986. "The Implications of Apology: Law and Culture in Japan and the United States," 20 Law & Society Review 461.

Wallace, Anthony F. C. 1986. St. Clair: A Nineteenth-Century Coal Town's Experience With a Disaster. Prone Industry. New York: Knopf.

Weisbrod, Burton A., in collaboration with Joel F. Handier and Neil K. Komesar, eds. 1978. Public Interest Law: An Economic and Institutional Analysis. Berkeley, Los Angeles, London: University of California Press.

Wheeler, Stanton, Bliss Cartwright, Robert A. Kagan, and Lawrence M. Friedman. 1987. "Do the 'Haves' Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970," 21 Law & Society Review 403.

Williams, G. R. 1983. Legal Negotiation and Settlement .St. Paul, Minn.: West Publishing Co.

Wisconsin Law Review. 1985. "Symposium: Law, Private Governance and Continuing Relationships," 1985 Wisconsin Law Review 461-757.

Yeazell, Stephen C. 1987. From Medieval Group Litigation to the Modern Class Action. New Haven, Conn.: Yale University Press.

Zion, Sidney. 1988. The Autobiography of Roy Cohn . Secaucus, N.J.: Lyle Stuart.