The Common Place of Law

Stories from Everyday Life

Patricia Ewick, Susan S. Silbey

• Publisher: University of Chicago Press
• Year: 2014
• ISBN:
  9780226212708
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Why do some people not hesitate to call the police to quiet a barking dog in the middle of the night, while others accept the pain and losses associated with defective products, unsuccesful surgery, and discrimination? Patricia Ewick and Susan Silbey collected accounts of the law from more than four hundred people of diverse backgrounds in order to explore the different ways that people use and experience it. Their fascinating and original study identifies three common narratives of law that are captured in the stories people tell.One narrative is based on an idea of the law as magisterial and remote. Another views the law as a game with rules that can be manipulated to one's advantage. A third narrative describes the law as an arbitrary power that is actively resisted. Drawing on these extensive case studies, Ewick and Silbey present individual experiences interwoven with an analysis that charts a coherent and compelling theory of legality. A groundbreaking study of law and narrative, The Common Place of Law depicts the institution as it is lived: strange and familiar, imperfect and ordinary, and at the center of daily life.

PART ONE

Introduction

CHAPTER ONE

Millie Simpson

Our sense of being a person can come from being drawn into a wider social unit; our sense of selfhood can arise through the little ways in which we resist the pull. Our status is backed by the solid building of the world, while our sense of personal identity often resides in the cracks.

ERVING GOFFMAN, Asylums

[T]here is no single locus of great Refusal, no soul of revolt, source of all rebellions, or pure law of the revolutionary. Instead there is a plurality of resistances, each of them a special case; . . . resistances . . . are distributed in irregular fashion: the points, knots, or focuses of resistance are spread over time and space in varying densities, inflaming certain points of the body, certain moments in life, certain types of behavior . . . Just as the network of power relations ends by forming a dense web that passes through apparatuses and institutions, without being exactly localized in them, so too the swarm of points of resistance traverses social stratifications and individual unities.

MICHEL FOUCAULT, The History of Sexuality

For close to nine years, Millie Simpson drove each weekday from her apartment in the South Ward section of Newark to Carol and Bob Richards’s ten-room stone-fronted colonial house in suburban Short Hills, where she worked as a housekeeper. Although Millie couldn’t afford to buy a new car, nor to service her old one regularly, an automobile was nonetheless important for traveling the ten miles to and from work. It was, in addition, necessary for the work she performed for the Richards family—picking up groceries and dry cleaning, and in recent years transporting Mr. Richards’s elderly parents around town. During these nine years, Millie Simpson had owned seven older, gas-guzzling, American-made clunkers. Her cars regularly fell victim to accidents, breakdowns, and thefts. There were several times in the nine years when she was without an automobile. With great difficulty and time, she would take a bus and then a train from Newark, or have a friend drive her to the Richardses’ home and then use one of the family cars to do the household errands.¹

In late October 1989, Millie Simpson arrived at work by train, cleaned the house, and left a note for Carol Richards saying that she could not drive and would be unable to do errands for a while. Carol and Millie had found that notes left on the kitchen table were the most reliable means of communication between them. Face-to-face and telephone conversations were rare. Carol left for work before Millie arrived in the morning, returning home after Millie left, and they had never gotten into the habit of telephoning because Millie’s number was often changed and the service was sometimes disconnected. Millie spoke regularly, however, with the younger Richards child, Judy, a teenage girl who was often at home in the afternoons. This is the story, as Millie Simpson told it to Judy, then to Carol Richards, and later to us.

Several months earlier, for a period of two to three weeks, Millie had parked her 1984 Mercury in front of her apartment building and had been having a friend drive her to and from work. She was short of cash and didn’t have the money to make an insurance payment; she needed time to collect the cash and she didn’t want to use the car while it was uninsured. Early one morning, the police arrived and served her with summonses for leaving the scene of an accident and driving an uninsured vehicle. Millie was incredulous and explained that she had not been using the car because it was uninsured. The summonses were served nonetheless. Frustrated that the police would not investigate her claims, Millie began making inquiries and found that a friend of her son’s, who had been staying with her, had taken the keys to the car without her permission. After backing into the car parked behind Millie’s, he then went for a ride and returned the car before the police arrived or Millie noticed that it had been missing. The car had been returned to the same spot where Millie had left it, but now with a dent in its rear end.

Millie Simpson appeared in court on the day noted on the summonses. When asked by the judge whether she wished to plead guilty, she replied no, she was not guilty. Surprised, the judge asked whether her car was insured and whether she had left the scene of an accident. She answered that it was true that the car had not been insured, so she must be guilty of that; but she had not been driving it and therefore was not involved in nor did she leave any accident. She explained to the judge that her car had been used without permission by her son’s friend, and the young man had been in the accident. According to Millie, the judge said that he would mark her plea “not guilty because she was not driving the car” and that he would set another date for a hearing. (Here there is some disagreement between Millie Simpson’s account and the official record, which indicates that Millie did plead guilty.) The judge also asked whether she wanted a public defender. Millie said yes and, after filling out some papers in another office in the courthouse, was assigned a lawyer.

A few weeks later, never having heard from her public defender, Millie Simpson appeared in court, once again without an attorney. The judge had a packet of papers in front of him, which Millie believed contained the information she had reported during her first appearance. As a result, Millie did not explain at this second appearance, as she had at the first, what had happened to her car. Without any discussion, she claims, the judge found her guilty and told her that her license was being suspended for a year, that she would have to pay three hundred dollars in fines and serve fifteen hours of community service. The public defender showed up at this point, Millie says, after the judge had finished with her.

Upon hearing Millie Simpson’s story from their daughter, and filling in details about the whereabouts of the car, the involvement of Millie’s son’s friend, Millie’s actions and responsibility, and the lack of involvement of the public defender, Bob and Carol Richards decided to have an attorney see if anything could be done for Millie. Bob Richards referred the matter to the law firm that was counsel to his company. A litigator for the firm met with Millie. After investigating the status of the case in the court records and discovering that the record indicated that Millie Simpson had pleaded guilty, the attorney, David Stone, filed a motion to have the case reopened and to withdraw the plea. Stone then appeared before the court, on the record, and asserted that Millie Simpson had appeared in court a few weeks prior, without a lawyer, and although she had stated that she understood what was going on, she, in fact, did not recognize the seriousness of the charges nor the implications of being found guilty. Stone also spoke with the prosecutor’s office, which said that it would take no position and would have no problem if the judge was willing to reopen the case, which indeed he was.

Four to five weeks later, attorney David Stone and Millie Simpson again appeared before Judge Tyler, the same judge who had found Millie Simpson guilty and with whom David Stone had met to reopen the case. At this final appearance, Stone presented the facts, the same facts that Millie Simpson had been reporting from the outset—that she wasn’t operating the car and had not been using it because it was uninsured; that someone had stolen it and had been in an accident and had left the scene, but not her. No witnesses were called, no corroborating evidence was offered, and Millie was not asked to testify. The court found her not guilty and dismissed the charges. She was repaid that amount of the fine that had already been paid, and her license was reinstated.

Millie Simpson’s story, as she told it to us and as we learned more about it by interviewing her employers and her attorney, illustrates the varied and contingent character of legal consciousness. Millie’s story also illustrates the power of institutionalized authority and the constraints and opportunities such authority presents for the construction of legality. In this case, and critical to its interpretation, Millie Simpson is an African American woman, supplementing her $18,000 annual income as a domestic with several part-time jobs. Her employers, the Richardses, are white. Bob Richards owns a nationwide service company that he built, and Carol Richards is an academic administrator; their combined income exceeds $350,000 a year, making them, at least with regard to income, atypical Americans. In many ways, Millie Simpson and Bob and Carol Richards represent opposite extremes of wealth and status. They represent as well the range of people whom we interviewed, a sample that approximates the racial and economic composition of the state of New Jersey.

When we first heard Millie Simpson describe her experience to us, we were struck by how she accepted the interpretations and conformed to the instructions of each of the legal actors she encountered. Although knowing she was not guilty of driving an uninsured vehicle or leaving the scene of an accident, she dutifully fulfilled the obligations imposed by the summonses, accepted her legal guilt, and immediately began taking responsibility for the penalties the court imposed, arranging to pay her fine and fulfill her community service.

Millie Simpson’s interventions during her first appearance conformed to the script offered by the court. When asked, she denied leaving the scene of the accident and explained herself to the judge.

Then, I go to court and the judge asks me do I plead guilty? I am not guilty. Then he says to me “Your car without insurance?” My car didn’t have any insurance on it so I said “I plead guilty.” So I was explaining to him what happened but he finds out that I wasn’t driving the car. . . . So then he said, after I explained it to him, he tells me, he said “Okay, I can’t put down guilty because you weren’t driving the car,” right? So he said “I’ll put down not guilty and make another date for you to come back.”

Millie Simpson assumed the judge had been persuaded by her story when he seemed to record her explanation, appointed a public defender, and set a date for a second hearing. Her intervention in this first court appearance was verbal and timely, but it was, she thought, transformed by writing and authorized into something else. She believed her account had entered and become part of the court’s institutional territory. Paper, after all, occupies space. It concretizes and makes both visible and intransigent otherwise fleeting and temporal interventions. By occupying paper, Millie Simpson believed that she could enter the realm of strategic power. Her case, as she properly understood it, was spatialized and rendered visual: recorded, filed, and placed on a docket. She believed that this physical rendering of her story would provoke the judge’s memory when he read “the paper.” “When you go to court,” she said, “they remember you, you know, you haven’t been gone that long. I wasn’t gone that long, you know, a lot will remember you because they read the paper.”

An outsider, inexperienced in the ways of the court, Millie Simpson assumed that her second appearance would be continuous with her first. Thus, when she returned to the court she thought there was no need to repeat herself by introducing the same details about not driving the car, and therefore not leaving the scene, that she had revealed in her first court appearance.

I didn’t tell the story because he, he had the paper there in front of him, I assumed . . . I assumed that he knew what the deal was.

In fact, rather than the continuity provided by shared interaction and memory, Millie Simpson’s interactions within the court, by being embodied by “the paper” in physical rather than temporal space, were transformed into two distinct and unconnected points—court appearance one and court appearance two. The rules, taxonomies, and operating procedures of the court flattened and froze time into these separate occasions. The spatialized modes of knowledge abstracted the actors from continuing interactions and arranged them in static impersonal roles, moments, and unconnected performances. The court drama—the meanings and interpretations of both the events and Millie Simpson’s legal identity—derived from impersonal standards, forms, and records, rather than the experience of repeated encounters and relationships. The human interaction that Millie believed was to be embodied in the paper was instead preempted by it.

For Millie Simpson, the spatialization of her story in the form of paper also endowed it with authority. For nine years, Millie had received written instructions from her employer. What groceries to buy, what rooms to clean, whom to pick up, all of her duties as a housekeeper were recorded daily in notes left on the kitchen table. These instructions gave shape, content, and direction to Millie’s day. Arriving every morning, she simply had to do what the paper said. The same was true, she said, for the judge who “just had to read the paper and do what it said.”

Upon entering the court, Millie Simpson believed in the process. She followed its rules and deferred to its procedures. Even the form of her story revealed her submissiveness and deference to the law. Millie’s accounts were presented in the form of what historians call an annal. She described events juxtaposed, statements made, even actions observed, in a world conspicuously absent human agency or will. Continuity, cause and effect are absent from her account. This is a world in which things happen to people, rather than one in which people do things. This is not, however, because Millie recognizes no moral realm, nor is it because she is oblivious to agency or causality. For Millie Simpson, the central ordering principle was so obvious, so necessary, so present as not to require articulation. For Millie, the order of things, the power of the court, the comfort and ease with which rich white folks negotiated these matters was simply there, it didn’t need to be stated.

During our interviews with Millie Simpson, she expressed skepticism for the first time when telling about her second court appearance.

Some of them probably don’t even read the paper, they just read what they need to read to find out why you are there . . . that second fudge, he acted like he didn’t know why I was even back there, you know.

Here Millie acknowledged the limits of the paper to order and organize human interaction, as well as the opportunities these limits afford for human agency. Millie entered the terrain of the court frightened and confused, she said, momentarily spotlighted by the foreign and powerful order. She hoped to exit quickly; she left, she told us, disappointed, but somewhat more experienced in the ways of the institution.

Emphasizing her conformity before the law, Millie’s tale can be read as an illustration of the power of law. She never missed nor came late to a court appearance. This is a remarkable fact since the majority of participants in lower court-processes—defendants as well as lawyers—routinely come late or miss hearings entirely. The system seemed to work as she had heard about it from friends. Before her court appearance, Millie had asked friends and neighbors about what it would be like when she got to court. They had talked about the long waits, the high bench behind which the judge sat, and how the court was filled with lots of people milling around. The defendants sat in rows in the back of the room. The police congregated in what seemed to be a special place in the court. It was a regular courtroom, she commented to us. It looked the same as courts did on TV. This was how things were supposed to be. She recognized it and went along.

But Millie Simpson did not simply stand before the law, submitting to an external and powerful authority; she also contested its findings. Millie returned to the court several weeks later, this time with an experienced attorney. Armed with the Richards family’s assistance, Millie returned to engage the court on its own terms, within the law’s terrain. Part of this challenge involved redefining and recharacterizing the persons and events Millie had related in her terms. Millie’s account of how her son’s friend had taken her car without permission was translated by her attorney into testimony before the court about an automobile theft. A misunderstanding became a crime. Millie Simpson was identified not as a mother whose house guest misunderstood her hospitality, but as a victim of crime. The fact that the public defender had shown up late for Millie’s trial was no longer just a mix-up and bad timing but, in the appeal to the court, evidence of a failure of due process and grounds for a new trial.

These interventions mobilized carefully crafted legal constructions to achieve specific objectives. Less concerned with moral rectitude, biography, identity, or sensibility, Millie Simpson’s contestation, during her second appearance, was articulated explicitly within the discursive space of the law. It was a public engagement and an official victory, yet Millie seemed mystified by and almost indifferent to the contest waged on her behalf.

I met him there and waited for them to call me, and they called me and we went up, you know, to the table. And I don’t even know what the judge said, I couldn’t even understand what he was saying. And the lawyer told me, he said “okay,” he said “that’s it, it’s all over.” I was rig...