Basketball in the Key of Law: The Significance of Disputing in Pick‐Up Basketball

DOIhttp://doi.org/10.1111/lasr.12034
Date01 September 2013
Published date01 September 2013
Basketball in the Key of Law: The Significance of
Disputing in Pick-Up Basketball1
Michael DeLand
While the conception of law as a constructive and constitutive force is often
stated, we have relatively few concrete and grounded case studies showing
precisely where and how social actors construct the meaning of their engage-
ments through the invocation of legality. Drawing on Erving Goffman’sFrame
Analysis (1974), I use the concept of “keying” to articulate how basketball
players in informal “pick-up” games transform the meaning of their activity
through disputing. By playing in a legalistic way, players constitute the game
as “real” and “serious” rather than “mere play.” The analysis tracks basketball
players in the heat of action as they perceive the game, call rule violations,
contest those violations, and ultimately give up. Players organize each phase of
the dispute’s natural history in the “key of law” by constructing and comparing
cases, invoking and interpreting rules, setting precedent, arguing over proce-
dure, and proposing solutions. Through these practices, players infuse the
game with rich meaning and generate the motivational context demanding
that the game be treated as significant. This analysis contributes to an under-
standing of legal ontology that envisions law’s essence as potentiating rather
than repairing normative social life.
Studies of disputing and the processes of informal conflict over-
whelmingly focus on how people dispute. The question of why
people dispute is treated as self-evident: people dispute because
they “have conflict” or because there “is trouble.” But these passive
states do not necessitate disputes. People find creative ways to
manage or avoid their interpersonal troubles (Emerson 2008). So
why dispute if it is not necessary or predetermined by the mere
existence of trouble? This article takes informal “pick-up” basket-
ball games as a strategic site to answer this question and draw
implications for our understanding of the relationship between law
and society.
“Pick-up” basketball is an activity that is often riddled with
disputes, although it need not be. In many situations, people play
Please direct all correspondence to Michael DeLand, Sociology, UCLA, 264 Haines
Hall, 375 Portola Plaza, Los Angeles, CA 90095-1551, USA; e-mail: mfdeland@ucla.edu.
1I would like to acknowledge and thank Jack Katz, Bob Emerson, Zsuzsu Berend,
Gale Miller,David Trouille, the UCLA Sociology Ethnography Working Group, the editors
of the Law & Society Review, and the anonymous reviewers for their insightful comments
and criticisms on earlier drafts of this article.
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Law & Society Review, Volume 47, Number 3 (2013)
© 2013 Law and Society Association. All rights reserved.
informal basketball without invoking legality at all. But in the
games I describe, it is so rare for a game to go by without at least
one extended dispute that players take notice and comment on
the absence. Disputing is a common, meaningful, and expected
part of the activity. Without any material rewards for winning a
game, why play in such an adversarial and litigious way? Rather
than focusing on individual motivations or psychological disposi-
tions to account for disputing, I show how players transform the
meaning of the activity by engaging legalistic disputes. Disputing
gives the game significance and is part of the motivation to play.
I suggest that this is a matter of legal ontology. It is about what
law and legal processes uniquely and positively contribute to
social life.
Legal Structure, Legal Process, and the Key of Law
The traditional view of law understands it as a discrete social
institution that is organized as a response to normative offenses in
social life. Legal rules are set up in advance so that actors can
anticipate the standards against which their behavior will be
judged. Donald Black provides the positivist view that law is a
system of behavior associated with governmental social control.
He seeks a general scientific theory that explains and predicts
the behavior of law in response to crime and deviance (Black
1976). The structural functionalist view is largely compatible with
Black’s positivism, but explores law’s place in a larger social
system. In instances of crime or deviance, law provides a space to
ritually celebrate the collective attachment to norms by repri-
manding the wrongdoer and reestablishing social order. Comaroff
and Roberts (1981) have summarized these views as part of the
“rule-centered paradigm” in which disputes are understood as
responses to abnormal, pathological, deviant, or dysfunctional
behavior.
The case method was developed, in part, as an intervention
in structural and rule-centered accounts of law. First developed
and employed by Llewellyn and Hoebel’s study of the Cheyenne
(Llewellyn & Hoebel 1941), scholars began to decenter law from the
analysis and collect rich ethnographic data on how people resolve a
variety of normative disagreements. While Llewellyn and Hoebel’s
analysis of particular trouble cases has occasionally been called into
question, their method has long impacted legal ethnographers and
law and society scholars (Conley & O’Barr 2004). The case-centered
ethnographies of Gluckman (1955), Bohannan (1957), Gulliver
(1963, 1979), and Nader & Metzger (1963) were all developed in
the shadow of The Cheyenne Way.
654 Basketball in the Key of Law
Through the second half of the twentieth century, processual
analyses of disputing behavior contributed to a growing sensibility
that law is not merely a corrective institution, but is constructive
and constitutive of social life in the first place (Sarat and Kearns
1993).2As one of the central proponents of this constructivist view,
Geertz noted that law is not “a mere technical add-on to a morally
(or immorally) finished society,” but rather is an “active part of it”
(Geertz 1983: 218). Thus, constitutive scholars study how people
see and make sense of the world with folk understandings of law
and legality (Ewick & Silbey 1995, 1998).
While the conception of law as a constructive force has been
well established, law is not a social actor and cannot do anything on
its own. A persistent challenge for the constructivist camp has been
showing precisely where and how social actors construct meaning
through legal process. Part of the difficulty is a slippery under-
standing of legal ontology. Structural positivists and functionalists
maintain the authority as analysts to identify a case of crime or
deviance. The legal object is presumed to exist nonproblematically.
But the constitutive perspective demands that we respect the expe-
riences of actors in the world and begin analysis not with real or
actual trouble, but with the interpretation of trouble.3This opens
up the question as to whether there is any preexisting object toward
which legal process responds. Is the legal object entirely constituted
through the legal process itself?
Studies of dispute process hedge on this issue when they
propose that the process begins with a subjectively interpreted
problematic state of affairs toward which participants are respond-
ing. Some have continued to characterize this state with the func-
tionalist vocabulary of norm and norm violations (Adler & Adler
1983; Ellickson 1991). More commonly, they use a variety of other
terms. “Crisis” (Gulliver 1973), “disagreement” (Gulliver 1979),
“injury” (Felstiner, Abel, & Sarat 1980), “offense” (E. Goffman
1961), “grievance” (Yngvesson 1978), “problem” (Merry 1990),
“conflict” (Nader & Metzger 1963), “pre-conflict” (Nader & Todd
1978), and perhaps most commonly, “trouble” (Emerson 2008;
Emerson & Messinger 1977; Starr 1978; Wästerfors 2011) have all
been used as the starting place for a processual analysis of disput-
ing. So even while they resist the objective existence of crime and
2Scholars of legal process came to see that legal cases emerged out of more everyday
and “nonlegal” settings (Felstiner,Abel, & Sarat 1980) and ethnographers began to analyze
conflict material for comparative analysis in a variety of informal spaces (Gulliver 1979;
Moore 1978; Nader & Todd 1978).
3A parallel and influential perspective was developed in the sociology of deviant
behavior (Becker 1963; Kitsuse 1962).
DeLand 655

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