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Two phases of ethnographic fieldwork in Pierre , South Dakota generated a large amount of data, including audio and visual recordings, hard copies of various legal materials as well as copious notes and an extensive fieldwork journal. A preliminary examination of these data suggested a stepwise research agenda for the US case-study. First, upon the return from their respective fields (the USA; Germany, the UK, and Italy), the research group reflected on obtaining access to these fields and decided to do a co-authored study tentatively titled “The Windy Paths of Legal Access.” The study examines ethnographic access as a comparable context-bound problematic. Four narratives about access were designed to elaborate on the specifics of accessing the legal field in four respective legal regimes. As a co-authored article, the revised study is currently being considered by Law in Context . As a single-author article, “Accessing Law: Toward and Ethnography of the Limit” is undergoing a rewrite.

After the second stage of ethnographic fieldwork, the US case-study settled for in-house research. The latter began with an examination of the legal file. The legal file opened the US case-study for two reasons: as the most tangible object in the attorney's arsenal, the file calls the researcher's immediate attention to itself. On the other hand and at the same time, the legal file shows itself to be a complex system of relations ordered around the notion of case. The pull of the file prompted the first study carried out from the perspective of ethnography of communication, i.e., in my analysis I focused on the collaborative production of the file as a legal artefact. For the analogical frame, I used the scrapbook. The reason for employing the scrapbook analogy was two fold: on the one hand, scrapbook resembles the file as a cultural artefact; on the other hand, it is a non-institutional product, so it stands in contrast to the file. This comparative study generated the preliminary explanation of the file's special place in the attorney's practice. Rather than being simply a mnemonic device, the file embodies various actions some of which refer to the past actions and others to the future ones. The filed actions are informed and continuously inform the legal procedure, mapping the course for criminal cases within the boundaries of a certain procedural path.

In his earlier writings on indexical propositions, Harold Garfinkel used the term “boundary object” to describe such an acting record that would be employed to help people organize their activities. A personal planner can be defined as such an object. Containing the record of the past activities, the planner, with the help of its pre-set features, points to future actions. A much more complex entity, the legal file gathers activities and practices together, performing a functional manifold: archive, dossier, planner, record, etc. In addition to the above functions, a preliminary investigation of the file revealed its rhetorical dimension, an analysis of which commenced the next stage of investigating the file. Approached as a rhetorical artefact, the file turned out to bear a specific genre of rhetorical discourse, sermon, which implicates the teller by putting her on the edge of the comprehensible, cutting a particular tropical figure, chiasmus. Two papers came out of this focused examination. The paper titled “Scrapbooking the Legal File” is being considered by Social Archeology. The paper titled “An Ethnology of the Criminal Defense File” rests with Crime, Media, and Culture . In both projects I utilized empirical data collected during my fieldwork.

The next take on the file was made from the philosophical perspective. Three projects came to represent this perspective: “ Archival Justice, or Who is Afraid of Rhetorical Measure? ” and “The Folded Law.” “The Archival Justice” offers three philosophical readings of law in terms of its archival properties. With Foucault, archive can be understood as a nexus of significations. Derrida shows the connecting power of the file: both memory and prophecy are the properties of archeon; hence, the burning memory of the acts long passed. Enacted in the presentational format, “The Archive” is nearing completion as an article. The second project, “The Folded Law,” resulted in the analysis of the legal file with Gilles Deleuze. Leaning in on Deleuze's work about Leibniz, “The Fold,” I attempted a systematic description of the file as a conglomeration of the organic and non-organic matter. The findings that resulted from this project can be obtained from The International Journal for the Semiotics of Law . Finally, the project “Alien Modalities in Law” explores the mechanism of legal reduction that characterizes the treatment of the so-called “legal subjects of limited competence,” such as children, animals, foreigners, and the insane. The work on this project is carried over from the presentation with the same title delivered at the Humboldt University in 2006.

Closely related to the analysis of the file is the study of law-specific discursive phenomena. Found in both written texts and oral exchanges, these phenomena embrace everything from statements to narratives. The two are intimately connected: narrative is the home place for statements. The criminal file organizes and reflects this process serving as a narrative map for the case. One way to investigate narrative mapping is to first focus on the defendant's story as it is initially presented to the defense attorney and then as it undergoes numerous modifications and adjustments in accordance with the rules of criminal legalization. The narrative adaptation is conducted within the legal discourse with the help of external (procedural) and internal (filing) rules. It is a combination of the two then that leads to the construction of the defendant's story as legally (criminally) relevant. Under the title “On Discursive Transformations of Evidence in Legal Discourse,” this project is under consideration by Text and Talk . Parallel to the above single-author projects ran the co-authored paper “Bound to One's Own Words? Early Defenses and Their Binding Effects in Different Criminal Cases” published in 2006 in Law & Social Inquiry .

The focus on the legal discourse and legal figure moved the US case-study to the adjacent problematic: What is the function of the law office? and What is the pattern for constituting various legal identities? The answer to the first question led to the article titled “ On Making Legal Emergency: Law Office at its Most Expeditious” published in 2007 by Forum Qualitative Sozialforschung (for the text, see the Project's web page). In line with this research was an examination of the attorney gesture in the context of Federal trials. The examination resulted in a paper titled “ Constituting Courtroom Space in Body and Speech ” currently under consideration in Communication Reports . A similar question motivated the last of the co-authored papers on three different court organizations. The article is due by the end of the project's tenure in July, 2007.

The second question spawned a separate strand of research that focused on legal identities. Such identities as the defendant, for example, are not permanent, they are identities in transition; the rules of criminal procedure make them. It is by focusing on such identities that we might gain a better understanding of social organization as a process. The first identity falling under scrutiny is that of the defendant who is being constructed as such in the course of the stop-over by the police for alleged drunk driving. The rules of investigation are the protocols that require that the drunken person undergoes certain procedural actions such as various sobriety tests. In the course of those actions, the person and her social role change drastically. The delicate nature of identity constitution in this case is rarely visible behind the event itself. It is only by analyzing video recorded instances of actual arrests collected at the site during ethnographic fieldwork one obtains empirical access to this process. This study is currently under assemblage. As a presentation it was offered to the Ethnography Division of the National Communication Association Annual Convention 2007. As an article it is expected to be finished by the end of 2007.

On the opposite side of the defendant's identity sits the attorney who is a professional and whose professional identity has been established long before an intervention of certain circumstances. In fact, detailed conversational analyses of attorney-client conferences show how the professional identity “becomes” every time in the process of performing the attorney, that is, standing-for the client. The transitions are barely marked by way of formulating and reformulating; however, it is in the course of these activities that shifts of entire conversational frames are initiated. When these shifts occur, an interactional transition takes place. As a result, the professional identity undergoes various activity-oriented configurations until it “arrives,” so to speak, at the point when it can be formalized in a contractual way. This study is currently with The International Journal of the Legal Profession . Another examination of the attorney's identity from the perspective of mass media engaged the New Yorker Lawyer Cartoons. The study was conducted from the perspective of ethnography of communication. At the end, it showed the inauthentic nature of the legal profession. The paper is awaiting publication in Language, Society, and Culture .

Finally, the same strand of research generated two mores studies of the Native American Identity. One is titled “ On Some Peculiarities of Cultural Defense and the Native American Identity.” In this study I am concerned with the background of cultural defense as it has been developed in the US juridical context. A brief analysis of the socio-legal discussion about cultural defense supported by two actual cases reveals two predominant views: the illegality of the cultural defense, on the one hand, and the possibility of its reductive application at the stage of sentencing, on the other. Disagreeing with both views, I argue that cultural defense is not only feasible but ethically necessary. I then examine the history of constructing the Native American as a cultural and legal subject. The question that preoccupies me here is whether there is a possibility of cultural defense for the American Indians. After the provisional answer that there is no such possibility, I proceed to demonstrate the impossibility of cultural defense in regard to the subject, whose only acceptable cultural identity is that of criminality. The work on this project is in progress.

In the second study that examines the Native American identity I focus on the 2004 Lewis and Clerk Pageant that took place in Fort Pierre , South Dakota . Called the Bad River Gathering, the pageant was organized by the Lakota Heritage Society to celebrate the bicentennial of the expedition. Present at the site of the celebration, I collected the preliminary notes that indicated the ways of resisting the historical interpretation of the Lakota Sioux by Lewis and Clerk through the means of performance. The rhetorical analysis of these means showed various figures deployed in order to achieve the effect of difference in sameness, or the in-between place grounded in semi-independent identity. The paper titled “A Standoff with History: The ‘Bad River Gathering' in Narrative Performance” was co-authored with Katharina Draheim and is awaiting publication in Rethinking History .

The most recent addition to the joint papers co-authored by the group that consists of three researchers is the article titled “On Legal Positionality and its Practical Consequences.” The paper was submitted to Qualitative Sociology . One finds a draft of this paper on the Project's webpage. The research on positionality spawned a single-author paper titled “Positionality: A Useful Concept for Sociolegal Studies?” In this paper I focus on the concept of positionality as it relates to the force of law, a concept long in use in the socio-legal research. The paper is under consideration in Law and Society Review .

 

Referenced Projects

In progress. “ Archival Justice, or Who is Afraid of the Rhetorical Measure? ” PDF

In progress. “Accessing Law: Toward and Ethnography of the Limit.” PDF

In progress. “Alien Modalities in Law.”

In progress. “ On Some Peculiarities of Cultural Defense and the Native American Identity.”

Under review. “Positionality: A Useful Concept for Sociolegal Studies?” Law and Society Review .

Under review ( with Thomas Scheffer and Kati Hannken-Illjes) . “On Legal Positionality and its Practical Consequences.” Qualitative Sociology .

Under review. “An Ethnology of the Criminal Defense File.” Crime, Media, Culture . PDF

Under review ( with Thomas Scheffer and Kati Hannken-Illjes) . “Accessing the Legal Field.” Law in Context .

Under review. “Scrapbooking the Criminal Defense File.” Social Archeology .

Under review. “ Constituting Courtroom Space in Body and Speech .” Communication Reports. PDF

Under revisions. “On the Interactional Becoming of the Defense Attorney.” The International Journal of the Legal Profession . PDF

Under revisions. “ Unsettled Facts: On the Transformational Dynamism of Evidence in Legal Discourse.” Text and Talk . PDF

Forthcoming (with Katharina Draheim). 2007. “A Standoff with History: The ‘Bad River Gathering' in Narrative Performance.” Rethinking History . PDF

Forthcoming. 2007. “The Cultural Meaning of the ‘Lawyer Cartoon:' An Experiment in Ethnography of Communication.” Language, Society, Culture . PDF

2007. “ On Making Legal Emergency: Law Office at its Most Expeditious.” Forum Qualitative Sozialforschung , Vol. 8(1).

2007. “The Legal File. Folding Law: Folded Law.” International Journal for the Semiotics of Law , Vol. 20, Issue 2.

2007. (with Thomas Scheffer and Kati Hannken-Illjes) “Bound to One's Own Words?

Early Defenses and Their Binding Effects in Different Criminal Cases,” Law & Social Inquiry , Vol. 32, Issue 1.





 






 

New activities

Special Issue on "Law and Biography" in BIOS

Call for Abstracts/French-German Conference on “Enfermement/Freiheitsentzug

Latest Texts/Books

My ethnography on the English Crown Court procedure by BRILL
Review

Our comparative ethnography of criminal defence work in different procedural regimes by PALGRAVE

Teaching in SS 2011

Scheffer: „Einführung in die Institutionelle Ethnographie“ Kurs in Moodle

Scheffer: „Was tun Verfahren? Eine sozialwissenschaftliche Debatte“ Kurs in Moodle

Scheffer: „Arbeitskreis politische Ethnographie“ Termine in Moodle

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