The Place of Law: The Role and Limits of Law in Society / Edition 1

by Larry Barnett

Overview

In this stimulating volume, Larry D. Barnett locates a fundamental defect in widespread assumptions regarding the institution of law. He asserts that scholarship on law is being led astray by currently accepted beliefs about the institution, and as a result progress in understanding law as a societal institution will be impeded until a more accurate view of law is accepted. This book takes on this challenge.The Place of Law addresses two questions that are at the heart of the institution of law. Why is law an evidently universal, enduring institution in societies characterized by a relatively high level of economic development and a relatively high degree of social complexity? And why do the concepts and doctrines of the institution of law differ between jurisdictions (states or nations) at one point in time and vary within a particular jurisdiction over time? These two questions, Barnett believes, should be prominent in any study of law.The framework for law Barnett proposes is concerned with activities that are fundamental aspects of social organization, that is, activities that are deeply embedded in social life. His viewpoint is grounded on a body of quantitative research pertinent to the societal sources and limits of law. Barnett argues that this perspective applies only to law in sovereign, democratic nations that are economically advanced and socially complex. In other environments, law's place as a societal institution is less secure. This innovative perspective will do much to enhance understanding and appreciation of the role of law in modern societies.

Product Details

ISBN-13:	9781412842587
Publisher:	Transaction Publishers
Publication date:	10/15/2011
Pages:	500
Product dimensions:	6.40(w) x 9.30(h) x 1.30(d)

About the Author

Larry D. Barnett is professor of law at Widener University School of Law in Delaware, specializing in securities law as well as in social science and law. His publications include articles in law reviews and a casebook titled Mutual Funds and Federal Regulation: Readings on the Investment Company Act and the Investment Advisers Act. He was the founder and first editor-in-chief of the demography journal Population Research and Policy Review.

Table of Contents

Preface ix

Chapter 1 Introduction 1

I The Study of Law 1

A Scope of Law 3

B Change in Societal Perceptions 5

C Change in Individual Perceptions 6

II Societal Beliefs about the Nature of Law 7

A The Political Process 8

B Regulatory Law and Societal Stability 9

1 Divorce 10

2 Abortion 16

III Lineage and Organization of the Book 19

A Lineage of the Book 21

B Organization of the Book 23

Sociological Concepts and Law

Chapter 2 Social Productivity 37

I Introduction 37

II Definitions and Context 43

III Social Productivity and Societal Institutions 46

IV Standards for Behavior and Societal Institutions 49

V The Outputs of Social Productivity 51

A Reputation 52

B Symbols 59

C Trust and Perceptions of Fairness 61

VI Investment Companies, Investment Advisers, and the Regulation of Conflicts of Interest 63

A Securities 64

B Directors of Investment Companies 66

C Fiduciary Duty of Investment Advisers 68

D Compensation of Investment Advisers 70

VII Conclusion 73

Chapter 3 Social Productivity and the Regulation of Mutual Fund Boards of Directors 97

I Introduction 98

II The Investment Company Act and Investment Company Directors 98

A Section 2(a)(19) of the Investment Company Act 101

B Securities and Exchange Commission Rules 104

III Fiduciary Duties of Investment Company Directors 106

A Duty of Care and Duty of Loyalty 109

B Good Faith 111

C Summary 112

D In re Nuveen Fund Litigation 113

E Director Status under Section 2(a)(19) and Director Liability for Board Decisions 116

IV The Macrosociological Nature of Investment Company Regulation 120

V Penalties for Shareholder Exploitation 122

A A Proposal 123

B Discussion 126

Chapter 4 Social Values 151

I Introduction 151

II The Financial Market Upheaval of 2008 153

III Sociological Concepts and Financial Market Exigencies 157

IV Change in Social Values in the United States 159

A Measures of Social Values 159

B Social Values and Intellectual Skills 164

V Investment Company Act 166

A Sections 3(c)(1) and 3(c)(7) 168

B Section 7(d) 170

C Section 12(d)(1) 172

VI Conclusion 177

Chapter 5 The Public-Private Dichotomy in Morality and Law 197

I The Rule and Role of Law in Society 198

A The Rule of Law 198

B Law as a Regulator 199

C Law in a Macrosociological Framework 200

D The Role of Law 203

II Investment Advisers 204

A Investment Advisers in the Economy 204

B Investment Advisers Act 207

1 Statutory Definition 207

2 Release IA-1092 208

III An Empirical Study of Determinants of Law 213

A Variables 214

B Data Analysis 219

C Discussion 223

IV Change in the Status of Women and the Content of Law 225

V Conclusion 230

Jurisdiction Properties and Law

Chapter 6 Jurisdiction Properties and Law on Social Issues in the United States 253

I Introduction 253

A Sex Roles 255

B The Investment Company Act and the Concept of "Person" 256

C Age of Majority 258

II Knowledge as a Societal Property 263

III Law and Abortion 271

A Change in Law on Abortion, 1967-1973 272

B Factors Affecting Decisions by Women to Abort Pregnancies 272

C Time-Series Indicators of a Societal Need for Abortion 279

D System-Level Properties and the Liberalization of State Abortion Law 284

E The Conway-Butler Study 299

IV The Concept of Societal Need 302

A Functionalism 303

B Societal Need and Abortion 307

Chapter 7 Jurisdiction Properties and Law on Same-Sex Relationships in Europe 339

I The Societal Context 339

A Supply of Knowledge 341

B Social Classifications and the Concept of Discrimination 342

C Population Density 344

D The Institution of Marriage 345

II Law in Europe on Same-Sex Non-Marital Partnerships and Same-Sex Marriage 348

III Antecedents of Law on Same-Sex Non-Marital Partnerships and Same-Sex Marriage 350

A Independent Variables 350

B Measurement of Variables and Sources of Data 356

C Statistical Technique 358

D Data Analysis 359

IV Discussion 366

Chapter 8 Jurisdiction Properties and State Regulation of Lawyers 393

I Symbols in Law and Society 394

II Appearances and Symbolism in Law 399

III The Statutory Definition of the Occupation of Investment Adviser 404

IV The Appearance-of-Impropriety Standard for Attorney Conduct 408

A Model Ethical Standards Promulgated by the American Bar Association 409

B Research Design 411

C Data Analysis 416

D Discussion of Findings 422

V Conclusion 426

Chapter 9 Research on the Societal Determinants of Law 455

I Introduction 455

II Macrosociology and Law 456

III Jurisdiction Characteristics as Causes of Law: Research Issues 458

A Independent Variables 459

B Types of Data and Measurement of Variables 460

C Data Analysis 465

D Generalizability of Study Findings 467

Index 475

Editorial Reviews

In the finest sociological tradition, The Place of Law deftly challenges the popular assumption that the concepts and doctrines of law in regulating certain human activities are determined by atomistic individuals. Marshalling a wide array of empirical evidence, Larry D. Barnett brilliantly makes the case for context preceding content. Barnett, who is a lawyer and a sociologist, offers a framework for the study of law that convincingly demonstrates that only when we consider law’s social context can we then explain and predict its content. The Place of Law should be required reading in all law schools.” —A. Javier Treviño, Wheaton College

From the Publisher