There is an adage among lawyers and judges that the two commodities a consumer never wants to watch being made are sausages and justice. Donald Black, University Professor of the Social Sciences at the University of Virginia, disagrees. Professor Black is a sociologist, and he explains much of our legal system’s indeterminacy by examining voluminous empirical data. The way the legal system works in practice, he argues, has little to do with formal legal rules. I find Sociological Justice brilliant; it explains and predicts the real-life behavior of judges and juries.

The closer a person gets to the inside of courts, the more terrifying they become. We all stand in jeopardy of being indicted by politically ambitious prosecutors or losing our life’s savings to some no-account civil plaintiff. Texaco, for example, lost over six billion dollars to Penzoil in a case that ninety-nine out of a hundred lawyers would have thought frivolous. Because of the way Texas state judges get their jobs, Penzoil’s lawyers had the system wired. Professor Black, however, would have taken Penzoil’s case seriously.

Unfortunately, we can’t give our system more determinacy. As Morris Cohen wrote in the Harvard Law Review early in this century: “We urge our horse down hill and yet put the brake on the wheel—clearly a contradictory process to a logic too proud to learn from experience. But a genuinely scientific logic would see in this humble illustration a symbol of that measured straining in opposite directions which is the essence of that homely wisdom which makes life livable.” Aberrations like the Texaco case are the cost of a system rife with “homely wisdom,” but that is little consolation to the system’s screwees.

Professor Black sets out general rules of court behavior, based not on theory but on hard empirical data. When Professor Black’s sociological model is superimposed on the standard jurisprudential model, the system’s outcomes become more predictable. And that is a towering achievement; after all, law is basically about predicting what courts will do. Professor Black defines the “quantity of law” as the amount of governmental authority—police, prosecutors, and courts—brought to bear on a person or a group. He then argues that the quantity of law varies directly with social status. Thus, those accused of offending someone above them in social status are likely to be handled more severely than those accused of offending someone below them. In support, he points out that all known legal systems are lenient when persons of low social status victimize their peers. In our system, whites who kill blacks have the lowest likelihood of capital punishment, while blacks who kill whites have the highest. Thus, Professor Black’s axiom: “Downward law is greater than upward law.”

However, Professor Black’s analysis goes far beyond emotional issues like capital punishment. He makes the broader point that the outcome of law is determined by the relational distance between the parties. The closer people’s relationships are, the less law enters into their affairs. A grievance between people such as relatives or old friends is likely to result in less law than the same grievance between casual acquaintances or strangers. Thus, “law varies directly with relational distance.”

The social structure of a case is defined not only by who has a complaint against whom, but also by who supports whom and by who intervenes as a third party. Supporters such as lawyers, witnesses, and interested bystanders openly take sides, and their characteristics have the same pattern of impact as those of the adversaries. The higher the lawyer’s status, for example, the more benefit the client enjoys. Lawyers, then, can raise the stature of lower-status adversaries, and in that way improve their clients’ chances of success.

With regard to judges. Professor Black points out that “authoritativeness is a direct function of the [judge’s] relative status.” Thus, the greater the social elevation above the adversaries, the more authoritatively the judge is likely to behave. This observation is of crucial importance to a practicing lawyer because it means that the higher the status of the judge vis-à-vis the litigants, the more likely an authoritative, all-or-nothing decision becomes. Lower status judges—particularly blacks, Hispanics, and other minorities—and socially mixed juries are more likely than high status judges to seek compromises. Federal judges, being of higher social status than state judges, are more authoritative than state judges, and appellate judges are more authoritative than trial judges.

Furthermore, the authoritativeness of the judge is a direct function of the relational distance between the judge and the adversaries. The farther away the judge is from the adversaries, the more authoritative the decision is likely to be. A judge who is a complete stranger to all parties is more likely to be legalistic and decisive than a judge in a small town who knows the parties.

Professor Black argues that there is a “sociological” model of law that we should study along with the jurisprudential model. I heartily agree. For example, product liability law is only explainable in terms of a sociological model. The court-made rules that govern product liability cases emerge from the profile of the litigants, not from scientific or legalistic considerations. In a product case we typically have an in-state plaintiff, in-state judge, in-state jury, in-state witnesses, in-state spectators, and an out-of-state defendant. It takes little imagination to figure out who the screwee of that process will be.

Although Professor Black does not make this point, the sociological model of law is always the norm, while the jurisprudential model is the exception. In Western societies, law was nothing but a seamless fabric of myth, religion, custom, and power until the 11th century. The great revolution in law began then when academic lawyers worked to establish a system in which legal outcomes would not be based entirely on status, custom, and private power. That we have not succeeded entirely in making law no respecter of persons does not mean that we have not succeeded at all. For example. West Virginia does not have capital punishment exactly because we recognize that it is impossible to apply capital punishment fairly.

But at the end of the day my philosophical and historical quibbles with Professor Black are minor. In one hundred pages. Sociological Justice tells a practicing lawyer more about how to win multimillion-dollar lawsuits or save a criminal client than any other single volume of its size I have ever read.

Neely_Review

[Sociological Justice, by Donald Black (New York: Oxford University Press) 179 pp., $19.95]