The SociologicalnModel of Lawnby Richard NeelynSociological Justicenby Donald BlacknNew York: Oxford University Press;n179 pp., $19.95nThere is an adage among lawyersnand judges that the two commoditiesna consumer never wants to watchnbeing made are sausages and justice.nDonald Black, University Professor ofnthe Social Sciences at the University ofnVirginia, disagrees. Professor Black is ansociologist, and he explains much of ournlegal system’s indeterminacy by examiningnvoluminous empirical data. Thenway the legal system works in practice,nhe argues, has little to do with formalnlegal rules. I find Sociological Justicenbrilliant; it explains and predicts thenreal-life behavior of judges and juries.nThe closer a person gets to theninside of courts, the more terrifyingnthey become. We all stand in jeopardynof beirig indicted by politically ambitiousnprosecutors or losing our life’snsavings to some no-account civil plaintiff.nTexaco, for example, lost over sixnbillion dollars to Penzoil in a case thatnninety-nine out of a hundred lawyersnwould have thought frivolous. Becausenof the way Texas state judges get theirnjobs, Penzoil’s lawyers had the systemnwired. Professor Black, however, wouldnhave taken Penzoil’s case seriously.nUnfortunately, we can’t give ournsystem more determinacy. As MorrisnCohen wrote in the Harvard LawnReview early in this century: “We urgenour horse down hill and yet put thenbrake on the wheel — clearly a contradictorynprocess to a logic too proud tonlearn from experience. But a genuinelynscientific logic would see in this humblenillustration a symbol of that measurednstraining in opposite directionsnwhich is the essence of that homelynwisdom which makes life livable.” Aberrationsnlike the Texaco case are thenREVIEWSncost of a system rife with “homelynwisdom,” but that is little consolationnto the system’s screwees.nProfessor Black sets out generalnrules of court behavior, based not onntheory but on hard empirical data.nWhen Professor Black’s sociologicalnmodel is superimposed on the standardnjurisprudential model, the system’snoutcomes become more predictable.nAnd that is a towering achievement;nafter all, law is basically about predictingnwhat courts will do.nProfessor Black defines the “quantitynof law” as the amount of governmentalnauthority — police, prosecutors,nand courts—brought to bear on anperson or a group. He then argues thatnthe quantity of law varies directly withnsocial status. Thus, those accused ofnoffending someone above them in socialnstatus are likely to be handled morenseverely than those accused of offendingnsomeone below them. In support,nhe points out that all known legalnsystems are lenient when persons ofnlow social status victimize their peers.nIn our system, whites who kill blacksnhave the lowest likelihood of capitalnpunishment, while blacks who killnwhites have the highest. Thus, ProfessornBlack’s axiom: “Downward law isngreater than upward law.”nHowever, Professor Black’s analysisngoes far beyond emotional issues likencapital punishment. He makes thenbroader point that the outcome of lawnis determined by the relational distancenbetween the parties. The closer people’snrelationships are, the less lawnenters into their affairs. A grievancenbetween people such as relatives or oldnfriends is likely to result in less law thannthe same grievance between casualnacquaintances or strangers. Thus, “lawnvaries directly with relational distance.”nThe social structure of a case isndefined not only by who has a complaintnagainst whom, but also by whonsupports whom and by who intervenesnas a third party. Supporters such asnlawyers, witnesses, and interested bystandersnopenly take sides, and theirncharacteristics have the same pattern ofnnnimpact as those of the adversaries. Thenhigher the lawyer’s status, for example,nthe more benefit the client enjoys.nLawyers, then, can raise the stature ofnlower-status adversaries, and in thatnway improve their clients’ chances ofnsuccess.nWith regard to judges. ProfessornBlack points out that “authoritativenessnis a direct function of the [judge’s]nrelative status.” Thus, the greater thensocial elevation above the adversaries,nthe more authoritatively the judge isnlikely to behave. This observation is ofncrucial importance to a practicing lawyernbecause it means that the highernthe status of the judge vis-d-vis thenlitigants, the more likely an authoritative,nall-or-nothing decision becomes.nLower status judges — particularlynblacks, Hispanics, and other minoritiesn— and socially mixed juries are morenlikely than high status judges to seekncompromises. Federal judges, being ofnhigher social status than state judges,nare more authoritative than state judges,nand appellate judges are more authoritativenthan trial judges.nFurthermore, the authoritativenessnof the judge is a direct function of thenrelational distance between the judgenand the adversaries. The farther awaynthe judge is from the adversaries, thenmore authoritative the decision is likelynto be. A judge who is a completenstranger to all parties is more likely tonbe legalistic and decisive than a judgenin a small town who knows the parties.nProfessor Black argues that there is an”sociological” model of law that wenshould study along with the jurisprudentialnmodel. I heartily agree. Fornexample, product liability law is onlynexplainable in terms of a sociologicalnmodel. The court-made rules that governnproduct liability cases emerge fromnthe profile of the litigants, not fromnscientific or legalistic considerations. Inna product case we typically have annin-state plaintiff, in-state judge, in-statenjury, in-state witnesses, in-state spectators,nand an out-of-state defendant. Itntakes little imagination to figure outnwho the screwee of that process will be.nOCTOBER 1989/35n