This study focuses on the trajectories of the Institute of Brazilian Lawyers (Instituto dos Advogados Brasileiros, or IAB), created in 1843, and the Order of Lawyers of Brazil (Ordem dos Advogados do Brasil, or OAB), formed in 1933, extending the analysis up to 1997. The article has three objectives: (a) to point out the role played by expertise in the cohesion of the IAB-OAB, changing its public image from one of the political counterelite to that of representatives of civil society, with the “institutional vocation” to defend juridical order and, later, human and citizenship rights; (b) to describe the social ties that permeate the legal world, preventing internal disputes from becoming deep and lasting cleavages; and (c) to contrast the experience of the Brazilian bar with those of the German and French.

Although the expression special rights emerged most prominently in the twentieth century as a negative response to the civil rights movement, the use of the term has recently acquired a broader, more ubiquitous doctrinal reach. In this paper we elaborate on the meaning of the term special rights as a political device and a way to mobilize power. As a discourse, special rights inverts relations between majority and minority, threatens a cultural contract that distributes universalistic and particular norms, and alters relations of governance. We apply these ideas to an empirical study of special rights politics in three very different issues in Hawai'i-same-sex marriage, the conversion of landholding from leasehold to fee, and indigenous sovereignty. These case studies demonstrate both the pervasiveness and capaciousness of special rights. We show that the use and impact of this discursive strategy varied a great deal from case to case, as did the responses to the accusations of special rights. Our findings suggest that special rights language and its surrogates have become a pervasive part of post-civil rights politics.

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.