This essay uses court records to trace the federal government's attempts to regulate homosexuality among immigrants in the mid-twentieth century, asserting that such attempts illustrate the state's struggle to make homosexuality visible, to produce a homosexuality that could be both detected and managed. I focus on the process by which two competing paradigms for understanding homosexuality (status and conduct) were consolidated into a single model in which homosexual identity could be deduced from homosexual acts. Federal officials and the courts initially treated homosexuality as a form of conduct, most commonly deporting homosexual aliens for having committed crimes of moral turpitude. Later, these same government entities relied on status provisions, deporting immigrants charged with homosexuality as aliens “afflicted with psychopathic personality.” While the “psychopathic personality” terminology supported the notion that the homosexual was a kind of person rather than a set of behaviors, it also depended upon psychiatrists to support the claim that homosexuals were by definition psychopathic. When many psychiatrists distanced themselves from that idea, the government refused psychiatric opinion that differentiated psychopaths from homosexuals by arguing that these terms connoted legal-political rather than medicalized identity categories. While this conception arose out of a conservative impulse by immigration officials and the courts to fix homosexuality as identity so that it could be regulated (by bureaucrats rather than psychiatrists), I argue that the emphasis on legal-political identity categories licensed a conception of the homosexual as a kind of citizen that had some emancipatory as well as repressive effects.

Lustration laws, which discharge the influence of old power structures upon entering democracies, are considered the most controversial measure of transitional justice. This article suggests that initial examinations of lustrations have often overlooked the tremendous challenges faced by new democracies. It identifies the motives behind the approval of two distinctive lustration laws in the Czech Republic and Poland, examines their capacity to meet their objectives, and determines the factors that influence their performance. The comparison of the Czech semi-renibutive model with the Polish semi-reconciliatory model suggests the relative success of the fonner within a few years following its approval. It concludes that a certain lustration model might be significant for democratic consolidation in other transitional countries.

Jurors are laypersons with no specific expert knowledge, yet they are routinely placed in situations in which they need to critically evaluate complex expert testimony. This paper examines jurors' reactions to experts who testify in civil trials and the factors jurors identify as important to expert credibility. Based on in-depth qualitative analyses of interviews with 55 jurors in 7 civil trials, we develop a comprehensive model of the key factors jurors incorporate into the process of evaluating expert witnesses and their testimony. Contrary to the frequent criticism that jurors primarily evaluate expert evidence in terms of its subjective characteristics, the results of our study indicate that jurors consider both the messenger and the message in the course of evaluating the expert's credibility.

Trust is essential to successful business relations, particularly to the efficient operation of law firms. Trust fosters productive working relationships, favorable reputations, and a lucrative clientele. This paper contributes to research on law firm development through a consideration of social dynamics within law firms beyond traditional emphases on trading relationships and community solidarity. We introduce a social capital perspective on the evolution of trust and its consequences for commitment to the law firm. We argue that trust, specifically in the form of perceived distributive justice, is created and nurtured through social integration among law firm members. Yet, for women, who continue to be denied full access to these social networks and professional rewards, trust is undermined. Exclusion and emerging distrust prompt women to contemplate leaving their respective firms. This paper examines the bases of differential levels of trust and their impact on lawyers' intentions to leave practice.

Robert Burns's A Theory of the Trial offers a fresh, subtle, and erudite analysis of the Anglo American trial, one that subjects the insights of current scholarship on trials (both legal and sociolegal) to the rigors of a philosophically trained mind long-steeped in trial practice. At once wide ranging and tightly focused, the richness of this book lies in the seriousness with which Burns offers a “careful, attentive description, ideally without presuppositions, of what we actually do” in order to identify the “spirit” of the trial as a human practice (Burns 1999, 4). Like Poe's hero Dupin in “The Purloined Letter,” who recovers a stolen letter slyly “hidden” out in the open in a barely disguised envelope, Burns looks with a discerning eye beyond the “received view” of the trial as a forum for actualizing the rule of law in the context of specific factual disputes (Burns 1999, 11), and suggests that the essence of the trial lies in its linguistic practices—an essence that, as Poe puts it, “escape[s] observation by dint of being excessively obvious” (1984,694).

Robert Burns's rich A Theory of the Trial (1999) brings philosophical theories of practical reasoning to bear on the trial in an erudite and comprehensive “thick description” of how the trial's structure enables jurors to reach sound practical judgments. Burns argues that the “Received View” of the trial is misleading and overly simplistic, because it sees the jury's mission only as one of evaluating the probability of events and then subsuming the most probable under a rule of law. By contrast, Burns understands that the “facts” the jury must find include the motives and virtues of the players and the competing values at stake in the litigation. The jury's Solomonic judgment, tacit and complex, weaves together judgments of morality, legality, credibility, probability, plausibility, and politics, and it expresses the jury's own sense of community identity. In Burns's description, the trial's emphasis on narrative arguments by the lawyers and its play of direct and cross-examination are uniquely designed to help the jury reach a good verdict, while in the Received View, the emphasis on lawyer arguments makes little sense for finding “facts.” Hence, Burns concludes that the Received View is a thin and incomplete understanding of the trial that, at worst, leads to mindless efforts to reform or even abolish it. A more mindful and “thick” understanding of the trial demonstrates a much better fit between trial process and jury decision making.

Robert Burns's A Theory of the Trial illustrates, quite masterfully, the many ways that the American trial is a much more dynamic and psychologically complex event in practice than its idealized legal version would suggest. Burns argues against what he calls the “Received View” of the trial, which can be characterized as the prevailing legal myth of how cases are structured, presented, and decided on in trial. This traditional legal model of the trial imagines the process following a very simple path to judgment: Reliable evidence is presented, the finders of fact assess credibility of witnesses and strength of evidence, that body then constructs a value-free narrative of the most likely scenario, and that narrative is then placed in one of the legal categories available, which determines the final verdict.

Robert Burns has written an important book on an institution that, while central to systems of criminal and civil justice, has been curiously neglected by academic lawyers. Some reasons for this neglect are addressed in an oblique fashion in his book, for they are linked to what he has described as the “Received View” of the trial. In this view, the trial is a formal process of fact finding and law application, where roles and responsibilities of judge, counsel, and jury are laid down according to a predetermined understanding of the rule of law. Since the trial is viewed merely as a mechanism for law application, academic lawyers have, by and large, preferred to focus on the appellate decisions that are seen as shaping the substance of the law. However, there are other reasons for this neglect, and they are linked to more recent trends in the academic study of the law. The sociological study of civil and criminal justice has been concerned with processes of plea bargaining and settlement, and with other means of diverting cases from the formal institutions of law, in seeking to argue that in practice the trial is not central to the operation of law. And while the critical legal studies movement has criticized the formalism and abstraction of legal scholarship, it has not sought to anchor the study of law in the concrete practices of legal institutions such as the trial, but instead in the social and political forces that shape law making—a position that has largely accepted the formalist account of the trial as a forum of rule application. We thus have two significant schools, one pulling toward the abstraction of rules from the context of their application, the other pulling towards the context in which rules are used or created, and the trial has been left somewhere in the middle.

My goal in A Theory of the Trial was a “rational reconstruction” of the American trial. I began with the conviction that the trial is, in some sense, a successful enterprise. The evidence for this proposition is spread throughout the book and is basically of three sorts—testimony of those who are experienced participant observers, social scientific findings, and the very account of the trial provided in the book. The latter contributes an argument that the trial's “consciously structured hybrid” of languages and practices is consistent with, indeed effectively realizes, intellectual and moral resources that interpret “our considered judgments of justice” (Rawls 1971, 19-20). All of us, even social scientists, always already affirm most of those considered judgments of justice when we think practically, as we must. Not that they are beyond criticism, but we have no Archimedian point or principle from which to criticize them all at once. Since modern people know that we are responsible for our public institutions, we need a mode of practical discourse (at the “metalevel”) by which to understand and evaluate institutions and the practices that occur within them. My book is an attempt at such discourse, and more than one reader has noticed that the argument has a reflexive quality. The book's method itself parallels at a higher level of abstraction the intensely practical discourse that occurs at trial.