Jumping Bunnies and Legal Rules

In this chapter, Issa Kohler-Hausmann calls for a thicker understanding of the criminal system. She cautions against the framework of surprise, in which we waste precious time dissecting the “surprising” fact that “law in action” diverges from “law on the books.” Instead, she reminds us that law is a situated phenomenon, one that can never be fully explained or encompassed by its rules. To understand what law does, “we want to ask what exactly the frontline legal actors are doing with legal rules and how they interpolate them into an ongoing course of meaningful (although not necessarily beneficial) social action.” The chapter analyzes two exemplary contexts discussed in the first section: the determinate sentencing/mandatory minimum regime discussed by Rachel Barkow, and the lack of attention to individual guilt in low-level misdemeanor courts explored by Alexandra Natapoff. In each example, practices diverge from legal mandates in significant and revealing ways that can be fully grasped only by examining the actual operations, histories, and outcomes of the process.