LS06CH01-Abel ARI 4 October 2010 14:58
Law and Society:
Project and Practice
Richard L. Abel
School of Law, University of ...
LS06CH01-Abel ARI 4 October 2010 14:58
Alice: Would you tell me, please, which way I ought
to go from here?
LS06CH01-Abel ARI 4 October 2010 14:58
social science should help law promote a lib-
eral political agenda. For sociologis...
LS06CH01-Abel ARI 4 October 2010 14:58
author as “one of a new cadre of law professors
who are determined to draw to the e...
LS06CH01-Abel ARI 4 October 2010 14:58
the relevance of social science research to legal
doctrine been so dramatically and...
LS06CH01-Abel ARI 4 October 2010 14:58
The second large category concerned the
behavior of adjudicative institutions. The
LS06CH01-Abel ARI 4 October 2010 14:58
that law seeks to regulate: divorce by family so-
ciology, business by economists, ...
LS06CH01-Abel ARI 4 October 2010 14:58
Volume 7, Number 4) and history by a dou-
ble festschrift for Hurst (Volume 10, Num...
LS06CH01-Abel ARI 4 October 2010 14:58
of postmodernism for transformative politics,”
the belief that “change will be brou...
LS06CH01-Abel ARI 4 October 2010 14:58
& Sterling (1998, p. 466) concluded that
“with sufficient energy and new investment ...
LS06CH01-Abel ARI 4 October 2010 14:58
work according to intellectuals’ vision of
progress, notwithstanding the suffering ...
LS06CH01-Abel ARI 4 October 2010 14:58
Despite Edelman’s (2004) call for social science
to address issues appropriated by ...
LS06CH01-Abel ARI 4 October 2010 14:58
regulation disadvantages minorities and com-
pliance (paradoxically) varies inverse...
LS06CH01-Abel ARI 4 October 2010 14:58
of U.S. war resisters in Canada—suggests
greater skepticism about the state’s role ...
LS06CH01-Abel ARI 4 October 2010 14:58
to oppress women), others examined women’s
agency (as lawyers, for instance). Resea...
LS06CH01-Abel ARI 4 October 2010 14:58
national sovereignty, how Hawaiians invoked
international law, international pressu...
LS06CH01-Abel ARI 4 October 2010 14:58
other. Successful antitax campaigns, weakened
labor unions, and an overheated financ...
LS06CH01-Abel ARI 4 October 2010 14:58
this, the White House gate crashers and Tiger
Woods), today’s bread and circuses. V...
LS06CH01-Abel ARI 4 October 2010 14:58
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other...
LS06CH01-Abel ARI 4 October 2010 14:58
Abel RL. 1973a. A comparative theory of dispute institutions in so...
LS06CH01-Abel ARI 4 October 2010 14:58
Friedman LF, Macaulay S. 1969. Law and the Behavioral Sciences. Indianapolis: Bobbs...
LS06CH01-Abel ARI 4 October 2010 14:58
Nader R. 1965. Unsafe at Any Speed. New York: Grossman
Nelson RL. 2001. Law, democr...
LS06CH01-Abel ARI 4 October 2010 14:58
Special Issue Editors. 1988. From the special issue editors. Law Soc. Rev. 22:628–3...
LS06-frontmatter ARI 29 September 2010 12:22
Annual Review of
Law and Social
Volume 6, 2010Contents
Law and Societ...
AAnnurev lawsocsci-102209-152851
AAnnurev lawsocsci-102209-152851
AAnnurev lawsocsci-102209-152851
AAnnurev lawsocsci-102209-152851
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  1. 1. LS06CH01-Abel ARI 4 October 2010 14:58 Law and Society: Project and Practice Richard L. Abel School of Law, University of California, Los Angeles, California 90095; email: Annu. Rev. Law Soc. Sci. 2010. 6:1–23 First published online as a Review in Advance on May 17, 2010 The Annual Review of Law and Social Science is online at This article’s doi: 10.1146/annurev-lawsocsci-102209-152851 Copyright c 2010 by Annual Reviews. All rights reserved 1550-3585/10/1201-0001$20.00 Key Words Law & Society Review, history Abstract This review analyzes four decades of law-and-society scholarship by examining and contrasting the first and last 13 years of the Law & Society Review (LSR). It compares the programmatic statements of Law and Society Association presidents and LSR editors with the scholarship published, offering explanations for and critiques of project and practice. 1 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly. Click here for quick links to Annual Reviews content online, including: • Other articles in this volume • Top cited articles • Top downloaded articles • Our comprehensive search FurtherANNUAL REVIEWS
  2. 2. LS06CH01-Abel ARI 4 October 2010 14:58 INTRODUCTION Alice: Would you tell me, please, which way I ought to go from here? The Cat: That depends a good deal on where you want to get to. Alice: I don’t much care where. The Cat: Then it doesn’t much matter which way you go. Alice: . . . so long as I get somewhere. The Cat: Oh, you’re sure to do that, if only you walk long enough. —Lewis Carroll (1866) As a relatively new interdisciplinary field, law and society (L&S) has been asking Alice’s question for more than four decades, and the field has been answering it in two ways: by prescribing and doing. Many kinds of evidence could illuminate this activity: The answers about where L&S should go are illustrated by the broad range of “law-and” journals and books, conference papers, grant proposals, university programs, and dissertations. In this review, I have limited myself to comparing project and practice during the first and last 13 years of the Law & Society Review (LSR) (roughly, 1966–1979 and 1996–2009) catego- rizing the more than 600 published articles by the questions posed (necessarily sacrificing depth for breadth and citing selectively). THE ORIGINAL PROJECT Noting the coincidence between the New Deal and legal realism in the 1930s, Shamir (1995) has argued that law is more receptive to social science during periods of rapid change. LSR’s first decade was another such moment. Earl Warren’s reign as chief justice (1953–1969) de- fined the rights revolution, beginning with the 1954 Brown v. Board of Education decision out- lawing school segregation and including land- marks on abortion, voting, criminal procedure, and welfare. President Kennedy launched the New Frontier in 1961, only to be assassinated two years later. President Johnson promoted the Great Society but did not seek a second term in 1968 because of the unpopularity of the Vietnam War, which fueled a mass peace move- ment. Still, his presidency included the 1964 and 1965 Civil Rights Acts as well as the War on Poverty. Frustration at the slow pace of re- dressing American racism, as well as the assassi- nations of Robert Kennedy and Martin Luther King Jr., fomented urban violence. The econ- omy boomed. The birth control pill accelerated change in sexual mores. Drug use proliferated. The counterculture flowered. Basic laws were reformed, including the Model Penal Code, the Uniform Commercial Code, the Federal Rules of Civil Procedure, products liability, and the warranty of habit- ability. “No fault” increased the frequency of divorce. Attica prison erupted in 1971. And books rediscovered poverty (Harrington 1962), environmental degradation (Carson 1962), feminism (Friedan 1963), and consumerism (Nader 1965). An American Sociological Association (ASA) meeting in Montreal in 1964 institu- tionalized the L&S program, which enjoyed generous funding from foundations (Ford, Rockefeller, Russell Sage, Walter E. Meyer) and government (Law Enforcement Assis- tance Administration). Although most of the original members were sociologists, L&S also met in conjunction with the American Political Science Association (APSA) and the American Anthropological Association, draw- ing eclectically on social science theories and methodologies. That law was its subject posed unique chal- lenges. Paralleling European antecedents, the Berkeley group argued that “the sociology of law could not reach its full potential unless it confronted the major problems of jurispru- dence” (Selznick 1959), such as “what it means to ‘legalize’ an institution, that is, to infuse its mode of governance with the aspirations and constraints of a legal order” (Selznick et al. 1969). But even Berkeley studied applied top- ics: parole, sentencing, criminal law reform, juvenile courts, and prison governance (Law Soc. Rev. 1967). In any case, Berkeley’s con- ceptualization was eclipsed by the view that 2 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  3. 3. LS06CH01-Abel ARI 4 October 2010 14:58 social science should help law promote a lib- eral political agenda. For sociologist Gresham Sykes, the main purpose of social scientists at the Denver College of Law was “to provide law students a basic understanding of modern sociological inquiry so that they will be better equipped for their professional work as lawyers” (Gauthier 1995). At Yale Law School, Richard Schwartz and Jerome Skolnick helped Joseph Goldstein develop social science materials for criminal and family law casebooks (Garth & Sterling 1998). Convinced that “law profes- sors . . . need history, they need economics,” the Rockefeller Foundation funded Willard Hurst, who in turn encouraged Stuart Macaulay and Lawrence Friedman to collaborate on Law and the Behavioral Sciences (Friedman & Macaulay 1969). Macaulay later said that the book “has an awful lot of the trappings of structural func- tionalism,” but “I don’t think either of us be- lieved it that much” (Garth & Sterling 1998, pp. 437–38). Lawyer consumers of social science shared this patronizing attitude. David Cavers, a Harvard law professor who was most influ- ential in distributing $4 million from the Walter E. Meyers Foundation, believed that “the methodology of science would set tasks for law that would be too hard, too dull and ex- pensive, and the marginal increment too mea- ger.” Kenneth Culp Davis, a leading admin- istrative law professor, found nothing useful in the sociological literature. Walter Gellhorn, a Columbia administrative law professor, said dismissively that “if he wanted a sociologist, he would hire one.” Rita James Simon, a sociolo- gist on the Law and Society Association (LSA) board, recalled that as late as the 1970s, so- cial scientists “were still considered handmaid- ens and sort of technicians that had to supply just very technical answers to legal scholars who would then (1) frame the problem and (2) ana- lyze what the data really meant.” Similar views about how social science could shape legal policy guided LSR. The front cover of early issues declared that its purpose was “to explore the relationships between law and society in such a way as to contribute to the understanding of law as a social and political phenomenon and to expedite the utilization of law as a more effective instrument of public policy.” Richard Schwartz, its first editor, declared in his second issue that lawyers’ interest in social science methods “represent[s] a response to the felt need for systematic information in the shaping of rational legal policies” (Schwartz 1967a, p. 6). Social science exposed laws’ “unanticipated consequences”: “drug addiction increasing because of efforts at enforcement, public defender systems enhanc- ing conviction rates, Draconian divorce codes generating perjury” (Schwartz 1967a, p. 6). In the next issue, he reflected that “the violence that erupted in inner cities around the country wrote in blood and fire the message that law had been weighed in the balance and been found wanting” (Schwartz 1967b, p. 7). Still, it had “played a not unimportant part in further- ing the civil rights movement” by providing a “normative slogan” and a “forum.” That year, APSA featured panels on “law as an instrument of social change” and “free speech, freedom of the press and privacy” (Yegge 1967a). The first LSA membership meeting in spring 1968 discussed “Legal Problems of the Poor” and “New Frontiers in Research on Criminal Justice” (Yegge 1968). LSR dedicated its fourth issue to Arnold Rose, who had col- laborated with Gunnar Myrdal on An American Dilemma (Myrdal 1944), had helped write the social science brief cited in Brown, and had shown how law could redress discrimination. The 1964 Civil Rights Act’s mandate to evaluate progress toward integration led to the Coleman Report on Equality of Educational Opportunity (Coleman et al. 1966) and an LSR symposium on efforts to integrate northern schools. Schwartz (1968a, p. 5) noted that “the Community Action Programs, Head Start, and other activities of the War on Poverty are likewise subject to systematic continuing evaluation,” which “seems a vital element in the construction of rational legal policy.” Citing a background paper on divorce for the National Conference of Commissioners on Uniform State Laws, he welcomed the • Law and Society 3 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  4. 4. LS06CH01-Abel ARI 4 October 2010 14:58 author as “one of a new cadre of law professors who are determined to draw to the extent possible on the accumulated wisdom of social science for whatever it can tell us about the formulation of wise legal policy in his chosen area” (Schwartz 1968a, p. 4). Schwartz (1968a, p. 3) also was upbeat about the American legal profession, which “seems to be showing a keen awareness of the need for intelligent intervention to secure law and order through a more equitable administration of justice”; and he found “good theoretical reasons for believing that the legal profession may be cru- cial in determining the rate and type of devel- opment” in Third World countries (Schwartz 1968/69, p. 195). “The kind of inventiveness shown by earlier generations of lawyers . . . can be turned with comparable capability to dealing with problems of the environment, the consumer, civil rights, prisoners, the aged, the mentally ill, students, and comparable interests and groups in the population which have been neglected” (Schwartz 1972). Schwartz (1973, p. 3) concluded his presidency by declaring: The study of law in American society is cer- tain to be affected by the momentous events that have followed the discovery of the Wa- tergate incident. This association, devoted to the understanding of legal systems and to the application of such knowledge to legal pol- icy, must surely respond in an appropriate way, . . . [which might] include some active ef- fort to affect policy. Krislov (1973, p. 324), the next LSR editor and a political scientist, regretted that “the closest law school students of sociolegal work . . . find so- cial scientists working on [are] problems which, from the perspective of legal scholarship and ju- risprudence, are trivial.” LSA’s first two presidents were even more determined that social science should help law be more effective. Yegge (1969a, p. 484), a law professor, declared that “for social science to be meaningful to lawyers, it must have some practical application. And it does.” In return, law provides social science with “the action model—the quest for using knowledge to resolve problems, to reconstruct institutions” (Yegge 1969b, p. 6). He wanted LSR to be “a first-rate review that looks like a law review that has great flexibility” and described the Social Science Methods in Legal Education (SSMILE) institute for law professors as “a summer six-week quick and dirty get your phony M.A. in Law and Society at the hands of some of the masters” and celebrated “a reawakening of the interest in law as a lib- eralizing element in the society” (Garth & Sterling 1998, p. 426). Like Schwartz, Yegge (1970b, p. 476) believed that the limited legal reforms already achieved demonstrated the need for structural change “requiring unsettling flexibility; honest recognition of some social illnesses with attendant creative concern for diagnosis and cure; involvement by a wider slice of the community . . . . [L]et’s talk about law and justice normatively.” Rosenblum (1970a, pp. 3–4), a law professor trained in political science, began his presidential term by quoting an undergraduate who defined “the relationship between law and social change” as “the overriding problem.” In subsequent columns, Rosenblum criticized Attorney General John Mitchell for rules concerning journalistic privilege (Rosenblum 1970b), the National Labor Relations Board for deciding that a law faculty should be a separate unit for collective bargaining (Rosenblum 1971d), and the Department of Justice for attempting to subpoena social scientists during the Pentagon Papers investigation (Rosenblum 1972b). He commended the American Bar Association for “recognizing the importance of change and the need to associate meaningful change with law” (Rosenblum 1971a); he urged social scientists to determine whether a judge could be sufficiently unbiased in deciding a contempt citation issued by a colleague (Rosenblum 1971b) and whether the reasonable man was “merely . . . a cloak for deep-rooted prejudices” (Rosenblum 1971c, p. 4); and he celebrated academic contributions to the California Supreme Court’s Serrano v. Priest (1971) decision equalizing educational expenditures per pupil, declaring “rarely has 4 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  5. 5. LS06CH01-Abel ARI 4 October 2010 14:58 the relevance of social science research to legal doctrine been so dramatically and successfully illustrated” (Rosenblum 1972a). Both presi- dents were confident law could advance ideals shared by all LSA members. EARLY PRACTICE It is no more surprising that there is a gap be- tween L&S manifestoes and practice than that there is one between law on the books and law in action (Abel 1973b). What did LSR actually publish in its formative years? Although Berkeley’s Skolnick and Nonet continued to argue for research on legality, pol- icy relevance clearly triumphed. For a new field, L&S was surprisingly unselfconscious about theory and methodology, which represented much less than a tenth of the approximately 300 articles. (Because of ambiguities in count- ing and categorizing articles, my “quantita- tive” estimates are impressionistic.) Although there were debates about Durkheim and Marx, most of the theoreticians discussed—Thurman Arnold, Donald Black, Roberto Unger, Adam Podg´orecki, Isaac Balbus, Renato Treves— remained marginal to the empirical work ap- pearing in LSR. Methodology was limited to quasi-experiments (Campbell & Ross 1968) and problems of multicollinearity in regression analysis. By devoting the first 80 pages of its inau- gural issue (which coincided with the founding of the Office of Economic Opportunity Legal Services Program) to an article proposing an agenda for sociological research on “civil jus- tice and the poor” (Carlin et al. 1966), LSR af- firmed its promise to advance political liberal- ism. Other articles addressed the legal needs of the poor, how these were shaped by the services lawyers offered, why and to whom lawyers ren- dered pro bono services, and which legal aid lawyers engaged in law reform; a special issue of LSR (Volume 11, Number 2) was devoted to the delivery of legal services. National sur- veys of legal needs in the United States (Curran 1977) and the Netherlands (Schuyt et al. 1976) appeared contemporaneously. Because Brown exemplified law’s determination to effect fun- damental social change, a special issue in the second volume (Volume 2, Number 1) dealt with northern school desegregation, based on research mandated by the 1964 Civil Rights Act; otherwise, however, race appeared only in analyses of bias in criminal justice. Although another ten articles addressed law and social change, they were either theoretical or situated in locales where modernity was displacing tradi- tion: Soviet Central Asia, Japan, the Dominican Republic, Turkey, Mexico, and Africa. Most articles fell into three large categories. The first concerned impact or efficacy, what might be called “Mind the gap!” between law on the books and law in action (with apologies to London Transport). In order to demonstrate their unique and indispensable expertise, social scientists argued that legal doctrine (over which lawyers claimed exclusive mastery) could not adequately explain the behavior of either legal institutions or those the law purported to regulate. Articles examined the impact of laws concerning traffic, guns, dangerous products, charitable immunity, housing, and the environment, as well as the effect of U.S. Supreme Court decisions on juvenile courts, reapportionment, civil liberties, and the right to counsel. They analyzed the influence of laws on families: population control, divorce, cus- tody, welfare, and intergenerational support. They documented deviation from formal rules in criminal courts, civil commitment of the mentally ill, the Polish command economy, and German bankruptcy. I criticized such “gap” studies (Abel 1973b) for allowing law to define problems for social science. It was naive to ex- pect homology between legal prescriptions and behavior, unproductive to keep falsifying that assumption, and ethically unacceptable to adopt uncritically the norms of positive law. Rather, social scientists should identify the behaviors law does influence (including its unforeseen and often perverse consequences) as well as the rea- sons for its failures and shortcomings, explore noninstrumental explanations for laws, and insist on moral autonomy in defining research questions. • Law and Society 5 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  6. 6. LS06CH01-Abel ARI 4 October 2010 14:58 The second large category concerned the behavior of adjudicative institutions. The media and popular culture condition us to conflate law with courts, which offer dramatic narratives of heroic victory and tragic defeat. Whereas the legislature and executive are widely understood and accepted as inescapably political, the judiciary represents an uneasy synthesis of law and politics, universal rules and unequal resources, which stimulates endless jurisprudential debates about theories of adjudication and prodigious legal scholarship (and partisan propaganda) criticizing particular constitutional doctrines. (By contrast, only a half dozen articles discussed legislation, a political science staple. All documented interest group dominance: professionals seeking rents through licensure, the Church shaping Italian family law to protect its orphanages, state supreme courts as pressure groups.) Sociology and political science applied organizational theories and quantitative methodologies to courts, treating them like any other social institution. More than 20 arti- cles asked how judges were selected, organized, and governed; how they defined their roles and communicated with each other; and how they did (and should) make particular decisions. Be- cause the U.S. Supreme Court has the greatest visibility and potential impact and seems the least “legal,” it attracted the most attention, in- cluding studies of the knowledge and opinions of lawyers and the lay public. But social sci- entists also investigated state supreme courts, specialized courts, and high courts in Spain and Indonesia. At the other end of the judicial hier- archy, juries posed similar problems: an uneasy conjunction of complex legal rules and virtually unconstrained discretion. This undoubtedly was one reason why the University of Chicago studied jury decision making (Kalven & Zeisel 1966). LSR articles examined bias in jury selection, how juries dealt with evidence, and how they nullified substantive law. This interest in adjudication spawned two related inquiries. Studies of litigation remained rooted in courts but investigated parties rather than judges. Social science was essential to ex- plain the actions of litigants, which profoundly shaped the behavior of courts but were largely unconstrained by law. The landmark was Galanter’s (1974) influential article on “Why the ‘Haves’ Come Out Ahead,” the centerpiece of two special issues (Volume 9, Numbers 1–2). Litigation also shifted the focus from federal appellate courts (which made some of the most influential rule changes) to state trial courts (which heard most cases). And to reveal patterns, it engaged in comparison, primarily across time but also in space. The initial interest in courts provoked studies of other institutions performing similar functions, notably dispute processing (Abel 1973a), thereby contributing to the recognition of legal pluralism (Santos 1977). This perspective was inescapable in preindustrial societies with no state to define the boundaries of formal law. A growing (if sometimes romanticized) interest in such infor- mal institutions led to a search to find or create them in industrialized societies—small claims courts, law in the kibbutz, Chilean neighbor- hood courts, Brazilian favellas (Abel 1982). Articles also examined the vast majority of grievances that never go to court: complaints by consumers and victims of discrimination, heard by administrative agencies or the media; tort claims settled by insurance companies; neigh- borhood grievances resolved by self-help or the police; and arbitration. Studies of litigation and disputing confirmed Galanter’s theory: Repeat-player companies and government litigated against one-shot individuals, whereas the latter typically sought redress outside court. The third (and largest) category concerned the criminal justice system (CJS). Given that criminology was the first social science (by more than a century; see Beccaria 1764) and that con- trolling crime was one of the state’s earliest responsibilities, it is surprising how marginal criminology has been to L&S. A few early ar- ticles addressed deviance: exotic behavior such as witchcraft, 1960s civil unrest, drunk driving and drug offenses, and white collar crimes such as tax evasion and fraudulent auto sales. But this disinterest is not unique to crime; L&S gener- ally has let other disciplines study the behavior 6 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  7. 7. LS06CH01-Abel ARI 4 October 2010 14:58 that law seeks to regulate: divorce by family so- ciology, business by economists, accidents by human factors experts. A more expansive con- cept of law in action would view behavior and the legal institutions that regulate it as part of a single system. And just as studies of adjudica- tion treat substantive law as an exogenous vari- able, so CJS studies during this period ignored the genesis of criminal law (except for the long debate over decriminalizing drugs). CJS articles fall into two groups: efficacy and fairness. The first—the criminal law equivalent of impact studies—examined policing, the deterrent effect of sanctions on populations of offenders and offenses, alternatives to bail and prison, incapacitation, and private criminal justice. If the purpose of criminal law often was less ambiguous than that of civil laws, criminal- ization also might have perverse consequences (as labeling theory argued). Studies of the fair- ness of the CJS paralleled those of adjudication by asking how extralegal factors influenced decision making. This topic alone accounted for 25 articles and two special issues (on juvenile justice, Volume 7, Number 2; and plea bargaining, Volume 13, Number 2), perhaps because criminal law is so clearly coercive and its targets disproportionately poor people of color (hence the many studies investigating the dimensions and causes of class, race, and gender bias). The CJS lends itself to organizational explanations because it is a complex network of many loosely connected elements—including victims, police, prosecutors, bail bondsmen, defense lawyers, parole boards, probation officers, and prison authorities—all enjoying broad discretion. Indeed, one of the most enduring findings has been the hydraulic theory of discretion: Suppress it one place and it reemerges elsewhere. Articles combined the focus on adjudication with the perspectives of litigation (looking at those who mobilize the CJS—victims, police, and prosecutors) and dis- puting (examining negotiated outcomes—plea bargains—as well as nonstate disciplinarians such as universities). Long before L&S stud- ied dispute transformation, criminologists wrote about the “dark figure” of unreported crime. There was particular interest in the police (heralded by Skolnick 1966) and their reform because the mistreatment of civil rights activists by southern police and of black inner- city residents by northern white police forces provoked civil unrest and damaged the CJS’s legitimacy. Just as L&S looked at the personnel of particular institutions—judges, juries, police, and prisons—so it examined the legal profes- sionals who staff all of them. Medical sociology anticipated this by studying the socialization of medical students. And social scientists had in- vestigated lawyers before the founding of LSA (Carlin 1962, 1966; O’Gorman 1963; Smigel 1964). Lawyers’ backgrounds and training, the structures within which they practice, the rewards they seek (status as well as money), their careers, and relations with clients (none of which is dictated by law) all profoundly in- fluence the legal system. Yet the approximately 20 articles dealt with lawyers outside the pro- fessional core: in political roles (the executive branch, drafting constitutions), defending civil liberties, legal aid lawyers and public defenders, law students, and in India (Volume 3, Numbers 2–3). This reflected the reformist ideals of the 1960s/1970s but neglected the primary role of lawyers: reproducing and amplifying inequalities of wealth and power. Three other categories remained marginal to LSR’s core concerns (which reflected its strong positivist orientation). Like earlier stud- ies of the “gap” between law and popular moral- ity (Cohen et al. 1958) and “knowledge and opinion about law” (Podg´orecki 1973), articles charted attitudes toward the Supreme Court and the police; class and race differences in views about other legal phenomena; and views about punishment, the fairness of courts, and civil liberties. Many authors seemed concerned that the law’s legitimacy and efficacy depended on its conformity with popular consciousness. Most LSR articles were written by sociolo- gists and political scientists. Except for an arti- cle apiece, anthropology was represented only by two special issues (on ethnography, Vol- ume 4, Number 1; and a festschrift for Hoebel, • Law and Society 7 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  8. 8. LS06CH01-Abel ARI 4 October 2010 14:58 Volume 7, Number 4) and history by a dou- ble festschrift for Hurst (Volume 10, Numbers 1–2). THE MIDDLE YEARS No sooner had L&S settled into comfortable middle age then it confronted a series of chal- lenges. Three years after the founding of Crit- ical Legal Studies, and shortly before Reagan’s election, I deplored the “clickety-clack” of rou- tine questions eliciting conventional answers and observed that “the theoretical-descriptive model of liberal legalism and the social policies it advocates are under increasing attack from both left and right” (Abel 1980a, p. 805; Abel 1980b, p. 438). I suggested that the collapse of the liberal paradigm might explain why the literature surveys in this special issue (Volume 14, Number 3) were “macrosocial, historical, and comparative,” unlike most LSR articles. I repeated my criticism of “gap” studies (Abel 1973b), suggesting instead that we ask about a law: “What are its inadvertent consequences or symbolic meanings? What are its costs? For whom does it work? What are the fundamental structural reasons why it does not work? What is the relationship between the routine (not the exceptional) in social and in legal life?” (Abel 1980a, p. 828). Presidential addresses marked the changing political environment. Jacob (1983, p. 407) criticized 12 years of trial court research for ignoring distributional questions, being insufficiently longitudinal, and slighting civil cases compared with criminal cases and lit- igants compared with judges; but he still asked hopefully if we are “within sight of certain enough knowledge to guide policy makers?” Galanter (1985, pp. 551–52) noted that the public had shifted from demanding more law (the rights revolution) to fearing there was too much (the litigation crisis). Arguing that law “usually works not by exercise of force but by information transfer,” he urged “research about what law means in people’s lives; what gives it its hold, its influence, its attraction.” Invoking Geertz’s claim that law is “meaning . . . not machinery,” Macaulay (1987, pp. 185–86) concurred that we must “understand people’s knowledge of and atti- tudes toward the legal system” as instantiated in everyday sites such as textbooks, popular culture, and sports. LSR accepted this invita- tion by publishing a special issue on ideology (Volume 22, Number 4), edited by the Amherst group, which determined to “move from focus- ing on concrete, tangible, and material interests to ideas and concepts in . . . discourse,” the “devices by which people find their way in and make sense of the taken-for-granted aspects of the legal world” (Special Issue Editors 1988, p. 631). Levine (1990) echoed the call by Silbey & Sarat (1987) to expand research on law beyond the state, to “spaces and places” such as family, workplace, and community. Eight years of Reagan and four of George H.W. Bush coincided with a major shift in the L&S project. With conservatives in the White House (and increasingly the federal ju- diciary), there was less interest than earlier in increasing the efficacy of law, and there was in- creasing skepticism about the “myth of rights” (Scheingold 1974). Recalling that “early on and into the 1970s” researchers hoped that “stud- ies of law and society could inform policy de- bate and bring about better governmental deci- sions . . . to assist the disadvantaged,” Diamond (1989, p. 170) observed growing disillusion: ar- guments for “critical empiricism” (Trubek & Esser 1989), concern that “meliorist policy ad- justments fed by research will undermine the ef- forts to produce major structural change” (Sarat & Silbey 1988), and warnings against the “ill ef- fects of inflated claims” for empirical research (Lempert 1989). Progressive change had to be sought outside the state, in civil society. Con- sciousness became both an obstacle (if it was false) and a potential force (if properly un- derstood and mobilized). Where Marx had lo- cated power in relations of production, and Foucault had shown how disciplinary mech- anisms were dispersed throughout society, Bourdieu attributed stasis to social practices: habitus. Handler (1992a, pp. 697, 701, 724) criticized these new directions, questioning “the value 8 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  9. 9. LS06CH01-Abel ARI 4 October 2010 14:58 of postmodernism for transformative politics,” the belief that “change will be brought about through small-scale transformation” by decon- structing and destabilizing hegemonic struc- tures. “The contemporary stories are about individuals, in the most marginalized spaces, en- gaging in very small acts of defiance, and for the most part, very little if anything happens.” They were “stories of resistance, but . . . also stories of despair.” He offered a concrete example: “the black teenage response”—crime by men, out- of-wedlock motherhood by women—“is not so much a rejection of conventional morality as an example of adaptation to the stress of extreme poverty” (p. 716). Handler argued that with- out “a positive theory of institutions, postmod- ernism cannot come to grips with institution- ally based power” (p. 724). It lacked a “vision of alternative relations of production or politi- cal authority.” “[R]eflexivity” had become “dis- abling” (p. 726). The cultural turn from power to consciousness had made postmodern politics “the politics of discourse,” a tragic error because everyone else is operating as if there were Grand Narratives. In the West, we see the ide- ological and political sweep of liberal capital- ism. Much of the world adheres to religious fundamentalism. Major economic powers are communal, authoritarian societies. We see the rise of ethnic nationalism (p. 726). Quoting Scott’s (1985) invocation of an Ethiopian fable about the wise peasant who “bows deeply and silently farts” when the great lord passes, Handler (1992a, p. 727) concluded: “Progressive forces need trumpets, not farts. . . . The enemies of the poor and those who suffer discrimination do not rely on localized knowl- edge in mini-rationalities.” Although two com- mentators (McCann 1992, Ewick 1992) argued that individualized resistance simply reflected the increasingly fragmented power of state and capital, Handler (1992b) questioned the evidence for that claim. Austin (1992, p. 753) concurred with him that “first and foremost, there is no economic game plan for poor black communities.” Agreeing that “every successful political movement for social change” has “or- ganiz[ed] around common interests,” Calavita & Seron (1992, p. 767) recalled C. Wright Mills’s (1959) identification of the “tension between the micro and the macro” as a central challenge of the “sociological imagination.” PRESENT PROJECTS The debate framed above continues unabated. Merry (1995, p. 12) agreed that “our faith in the progressive possibilities of law has been shaken.” But criticizing Handler for looking “too narrowly for ways that law contributes to social justice and transformative politics,” she urged greater “attention to discourse, nar- rativity, and language along with legal cul- ture, legal ideology, and legal consciousness.” “[R]ecent scholarly attention to resistance re- flects pessimism about the possibilities of major social revolutions,” leading to a focus on “more subtle, unrecognized practices, such as foot- dragging, sabotage, subversive songs.” But do they “lead to genuine social transformation or do they . . . simply heal workers and return them to the workplace . . . ?” (Merry 1995, pp. 14–15). Offering three examples of resistance, Merry conceded that the uncooperative accused still went to prison, the abused wife left her hus- band but remained economically dependent on men, and the Hawaiian sovereignty movement redefined the law within its People’s Interna- tional Tribunal but got no closer to exercis- ing power. While maintaining that “actions with no apparent impact may nevertheless be consequential,” she wondered if “recent work on resistance [had] taken an overly celebratory stance?” (p. 24). Engel (1999, p. 5) exhorted L&S “to understand and communicate the per- spectives of those who are habitually ignored by legal scholars and policymakers.” Hoping read- ers would discern his autobiographical subtext, Sarat (2000, p. 9) declared that the next frontier for L&S was cultural studies: “Today we have law on the books, law in action, and now, law in the image.” Others sought to recapture L&S’s re- formist zeal. Reviewing LSA’s history, Garth • Law and Society 9 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  10. 10. LS06CH01-Abel ARI 4 October 2010 14:58 & Sterling (1998, p. 466) concluded that “with sufficient energy and new investment in scholarly bridges,” it “may be able to renew its progressive role at the intersection of law and social science.” Although Greenhouse (1998, p. 11) felt distant from the “early contributors to the journal”—“optimistic Aristotelians in their sense of law’s ability to deliver justice and community to divided nations”—she harshly criticized contemporary legal policy. Noting the “spectacular shift from rehabilitation to crime control” (Feeley & Simon 1992), she declared that “human science itself is no longer conceivable without affording violence a cen- tral place in our thinking.” Munger (2001, p. 8) also conceded that “we have left behind hopes that exposing the shortcomings of liberal legal institutions will lead directly to change.” But he still believed that “in North America, the end to the intellectual turbulence created by the cold war may have made it easier to perceive injustice” (without being labeled communist); and “where the rule of law is not firmly established, liberal legalism can be the cutting edge of cause lawyering.” But Munger also agreed that the “critique of law that decenters or deconstructs the authority of law” forces L&S to relocate “the role of law in the very fabric of social relations, consciousness, and identity.” Munger’s commentators were more cau- tious. Nelson (2001, p. 34) warned against “an unrealistic view of law as a vehicle for achieving social justice and an unrealistic assessment of prospects for law and social science research to influence the direction of policy.” Indeed, such scholarship could easily be misused, as when Judge Posner cited Galanter’s (1974) “Haves” article for the proposition that courts could not redress structural inequalities. And though Lempert (2001, p. 26) cited examples of “socially engaged studies aimed at increasing justice”—documenting racial bias in the death penalty or exposing the actual role of juries to debunk the mythic litigation crisis—he con- ceded that “well-done scholarship that conflicts with public opinion or political interests often does little . . . to bring about social change,” noting a federal judge’s dismissal of his own research that defended affirmative action at the University of Michigan. Calavita (2002, p. 7) reaffirmed “the im- portance of asking the big questions . . . and the urgent need for a commitment to engaged research.” “[O]ver the past several decades, we have been backing way from macrostruc- tural analyses and from theory in general.” Academics feared “being perceived as both too ideologically engaged” and “embarrassingly obvious.” Like Handler, she blamed this partly on postmodernism: “with the very possibility of transcendent Truths in question, claims to a position of privilege in accessing such Truths seem quaintly anachronistic, disingenuous, some say even sinister.” While urging colleagues to “focus on the counter- hegemonic resistance to law and the social order it helps to constitute,” she acknowl- edged “widespread demoralization about the possibility of meaningful political change.” Commentators shared Calavita’s ambiva- lence. Reflecting on “thirty years mainly doing empirical work on topics of policy or public rel- evance” in Britain, Dingwall (2002, p. 33) con- cluded sourly that “none of it really matters very much.” Blaming pursuit of a summum bonum for the Cold War and now “both Osama bin Laden’s Islamic Utopia and George W. Bush’s Pax Americana,” Dingwall urged us to “lower[ ] our aspirations to the point at which we can find some measure of agreement” and then “allow each other to do pretty much as we please.” Simon (2002, pp. 38–41) recalled how Skolnick’s (1969) attribution of 1960s civil unrest to structural conditions was eclipsed by Wilson’s (1975) insistence on holding “the deviant individual responsible for social prob- lems.” Reflecting on her experience in Poland, Skapska (2002, p. 45) noted the “unfortunately not rare examples” of “even the greatest intel- lectuals engaging in political opportunism as fellow travelers or as bystanders, justifying their stance as ‘the necessary costs of progress,’ or even worse, engaging in support of totalitarian regimes.” “We must debate whether there is arrogance in the temptation to make history 10 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  11. 11. LS06CH01-Abel ARI 4 October 2010 14:58 work according to intellectuals’ vision of progress, notwithstanding the suffering of people.” Although she advocated a more global per- spective, Mather (2003, p. 264) cautioned that the “assumption of universality” can “get us into trouble” when “legal ideas, actors, and in- stitutions are exported without a self-conscious awareness of the distinctive context that makes them work in the United States but perhaps not abroad.” Garth (2003, p. 306) concurred: The latest wave of law and development embraced the uniquely American faith in “a strong and independent judiciary acting as a major branch of the government.” Offering a critical British perspective on American exceptionalism, Dingwall (2003, p. 317) warned that “human rights jurisprudence may be too powerful a weapon to put into the hands of the judiciary” and might “contribute to the continuing decline of democratic politics.” Public interest lawyer- ing “does not cease to be professional imperial- ism just because idealistic people do it.” Writing from Canada, Brockman (2003, p. 296) noted that “the competing movement of law and eco- nomics has taken the political driver’s seat as the state has moved away from a social welfare to a more economic and corporatist model.” Contesting the growing influence of law and economics (L&E), Edelman (2004, pp. 184– 88) sought to reclaim the economy for L&S, which regarded “rationality as a phenomenon that varies across actors and social arenas” and saw “social action as responsive to institu- tions, norms, and historical context.” Whereas L&E treated law as exogenous, L&S insisted on “the endogeneity of law . . . the idea that the meaning of law is constructed within the social (and economic) realms that it seeks to regulate.” Her own research explained why employers created grievance mechanisms that benefitted them more than employees. But although some economists conceded many of her points, they continued to maintain the superiority of their theoretical models and methods. Erlanger (2005, pp. 2–3) reaffirmed the L&S founders’ belief “that empirical research could provide an understanding of how the legal system actually works, and of how law could become an effective agent of progressive social change.” The “purpose of sociolegal scholarship is to assess the relevance of law in everyday life” and to “uncover the sources and effects of legal change.” Rejecting Tamanaha’s (2006) charge that L&S was exclusively con- cerned with legal instrumentalism rather than justice, Feeley (2007) insisted that L&S had “rejected the notion that social scientists should become . . . the law’s ‘handmaidens.’” Indeed, “many members of the Association hold a more jaded view of law and the legal process than they or their counterparts did in 1966.” Feeley blamed “shifting politics, postmodernism, critical theories . . . and the cultural turn” for skepticism about “knowing the social condi- tions that give rise to law, legality, and the legal system, and knowing enough to construct (or even advocate) effective programs to remedy the pathologies of the existing social order” (Feeley 2007, p. 758). Yet he ended by echoing Michael Burawoy’s call for “public sociology,” declaring that “sociolegal scholars consistently anchor their work in a concern with broad prin- ciples of justice implicit in the concept of law.” PRESENT PRACTICE Analyzing what could readily be quantified in the first 34 volumes of LSR, Silbey (2000) found no obvious change over time in the subjects studied except for less frequent calls for “a dis- tinctive paradigm for law and society research or a ‘coherent theory,’” fewer literature reviews, little comparative analysis (6.5%), more cul- tural studies, and a continuing dominance by sociologists (36%), political scientists (23%), and lawyers (19%), compared with anthropolo- gists (4.5%), economists (2%), historians (1%), and philosophers (0.5%). My own reading of the approximately 300 articles published in the last 13 years identified little pure theory (al- though theoretical orientations clearly inform the novel topics and approaches discussed be- low). Only two articles even mention the re- lationship between empirical research and pol- icy (which had exercised earlier commentators). • Law and Society 11 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  12. 12. LS06CH01-Abel ARI 4 October 2010 14:58 Despite Edelman’s (2004) call for social science to address issues appropriated by economists, only three articles did so (two by authors already engaged in such work). Aside from endorse- ments of thick description in the ethnography of constitution-making and of embedding lon- gitudinal studies in a larger historical perspec- tive, only Feeley (2007) discussed methodology (using his presidential address to criticize dys- functional institutional review boards). Nevertheless, the last 13 years differed significantly from the first. Where earlier articles focused on the role of the state in pro- moting social justice or guiding the transition from tradition to modernity, recent authors look for transformation within civil society. Occupying the space formerly devoted to law and social change, nearly a dozen articles on cause lawyering—many associated with Sarat & Scheingold (1998, 2001)—discuss why, and with what result, activists chose to litigate on behalf of various disadvantaged groups and unpopular issues (Niger Delta residents, LGBT rights, civil liberties, South African blacks, Jews and Roma, American Indians, Southern blacks, conservative causes), rebut- ting revisionist claims that courts cannot effect change (e.g., Keck 2009). Focusing on parties rather than lawyers, legal mobilization studies documented the ingenious ways individuals— especially outsiders such as women and ethnic minorities—used the law: creating fictive kinship to obtain kidney transplants, planting or uprooting trees to stake land claims in Israel-Palestine, invoking the Family and Medical Leave Act, complaining about domes- tic violence or sexual harassment, obtaining divorces, petitioning supranational fora such as the World Trade Organization or European Court of Human Rights. Whereas the early gap studies naively documented (and often deplored) the disparity between legal norms and the behaviors they prescribed, contempo- rary mobilization studies describe (and often applaud) the opportunities that ambiguous laws and novel institutions offer disadvantaged individuals. At the same time, articles showed how repeat-player “Haves” (capital and state) can amplify their extralegal advantages by ex- ploiting legal processes (or refusing to enforce rights). Aside from a special issue (Volume 33, Number 4) revisiting Galanter’s influential 1974 article, however, few writers explored how ostensibly neutral legal institutions reproduce and reinforce inequalities, perhaps because it is easier to reconcile the ideal of “Equal Justice under Law” with unequal outcomes when they are secured by private actors (whose behavior is unconstrained by law) rather than officials (legislators, judges, regulators). Studies of laws’ impact and regulatory efficacy parallel investigations of the deterrent effect of the CJS; taking the normative content of law for granted, both ask how it can modify behavior. Researchers continued to document the relationship between formal rules and prescribed behavior in fields as diverse as foreign investment, minority language educa- tion in Canada, university hate crime codes, uninsurable property, and the Americans with Disabilities Act. A special issue (Volume 36, Number 2) on nonbiological parenting exam- ined the complex interactions between parents, children, and the state in various social contexts. Describing law in action with respect to lobster poaching in Canada, East German archives, tort victims seeking “blood money,” and decision making in neonatal intensive care units, articles showed how law distorted behavior and how people circumvented law. After three decades, the United States may be souring on the Reagan antiregulatory revolution (in the face of global warming, financial misconduct, and unsafe food and drugs), but most of the recent literature concerns how to make regulation more effective (typically by departing from command and con- trol) rather than how to extend its scope. These studies investigate the influence of social norms under varying market conditions, federal-state differences, the identities of those regulated, comparisons between command-and-control and responsive regulation, and prerequisites for compliance (deploying transnational and historical comparisons). Authors and critics used methodological disagreements to wage political battles over whether environmental 12 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  13. 13. LS06CH01-Abel ARI 4 October 2010 14:58 regulation disadvantages minorities and com- pliance (paradoxically) varies inversely with regulation. The interest in norms and culture validates Edelman’s (2004) contention that sociology can enrich economic accounts of business behavior. Whereas regulation became a political foot- ball, judicial decision making remained firmly ensconced within normal science. Researchers exposed the many factors other than positive law shaping judicial behavior: how a judgment’s structure affected its impact on subsequent de- cisions, influence of judicial opinions across federal circuits, the effect of advocacy (includ- ing amicus briefs), the significance of person- nel (changes in the membership of benches, assignments to panels, politics within the ap- pointing authority, contested retention elec- tions), reciprocal interactions between lower andhighercourts,judicialdeploymentofprece- dent and other rhetorical resources, judicial characterizations of AIDS, and the language of exclusionary rule decisions. Some articles were hardly distinguishable from doctrinal explica- tion and critique, such as those that discussed the federal law of nuisance, affirmative action, racial discrimination, originalism and judicial activism, application of the best-interests-of- the-child doctrine, or the failure of state courts to use state constitutions to protect civil liber- ties. Some judges viewed such behavioral anal- yses as l`ese majest´e, resenting the debunking of their autonomy, just as some legal scholars (e.g., Bickel 1962) had defended their turf against so- cial scientists by arguing that unmasking law as politics might delegitimate judicial authority (without offering any evidence that the public had ever been fooled or that demystifying law would lower respect for or obedience to courts). The continued popularity of this topic may be due to its overlap with law’s own definition of its scholarly project: the clarification and critique of judicial decisions. Although early studies of judicial decision making had focused on the U.S. Supreme Court’s constitutional jurisprudence, several articles now examined efforts to create or defend the rule of law in new or imperfect democracies, where the divergence between legal ideal and political reality was especially stark: countries emerging from communism (Russia, Estonia), dealing with terrorism (Israel), seeking to end military conflict (Iraq), or addressing threats of religious or national strife (Turkey) or military or police challenges to civilian authority (cf. Halliday et al. 2007). If interest in judicial decision making re- mained high, earlier efforts to broaden the inquiry to extrajudicial disputing diminished [consistent with Silbey’s (2000) finding that an- thropologists contributed only 4.5% of the ar- ticles in the first 34 years]. Most studies of le- gal pluralism were situated outside the United States—in countries whose official legal systems were less well entrenched (Kenya, Thailand, Mozambique, Indonesia, India)—or in Amer- ican enclaves where state power was less hege- monic (Indian reservations, nineteenth-century Hawaii, disputes between college roommates or members of workers’ cooperatives, pretrial bar- gaining). This may reflect continued expansion of state power, especially at the expense of tra- ditional institutions (whose romantic allure has faded), or growing attention to the relationship between state and supranational institutions. As before, the legislature was studied less than the judiciary or executive and more likely to be approached comparatively (common and civil law regulation of labor and corporations; the headscarf controversy in France, England, and Turkey; American and French definitions of sexual harassment; the response to HIV- positive contaminated blood in Japan, France, and the United States) or historically (the emergence of the state action doctrine during Reconstruction, how Civil War narratives shaped the Fourteenth Amendment, the long- term devolution of power from government officials to citizens, disaster relief as a New Deal antecedent, displacement of the Islamic waqf by public service). The relative fixity of leg- islative norms (in time and place) may explain the greater use of temporal and cross-cultural comparison. That only two articles addressed rapid normative change—responses to the alternative birth movement and the plight • Law and Society 13 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  14. 14. LS06CH01-Abel ARI 4 October 2010 14:58 of U.S. war resisters in Canada—suggests greater skepticism about the state’s role in social change. In both instances, furthermore, reformers sought to discourage state action (crackdowns on alternative birth practices, prosecution or deportation of U.S. war resisters). The L&S preoccupation with crime and punishment, criticized by earlier commenta- tors, has been markedly less pronounced for the past 13 years. Relinquishing the field to criminology (whose own journals were thriv- ing), LSR has published few articles on de- viance or deterrence. Conceding the difficulty, even impossibility, of eradicating crime, these articles document the persistence of lobster poaching in Canada, illegal labor migration to Chinese cities, and the movement of mafias in response to crackdowns. Articles have punc- tured myths: that “adult” businesses are crim- inogenic or that fear of gang crime reflects its prevalence. They argue that restorative jus- tice (Braithwaite 2002), especially reintegrative shaming, deters recidivism. Just as judicial deci- sion making studies revealed behaviors inexpli- cable by positive law, so criminal justice anal- yses expose how discretion is exercised (and arguably abused): processes in juvenile courts (which cases were diverted, the interpretation of drug tests, sentencing) and domestic violence tribunals; the role of confessions in China; plea bargaining; the effect of victim-defendant re- lationships; the impact of medical testimony on the insanity defense; the defense of male honor in high-profile murder trials; the role of race in sentencing; the relationship between speed of disposition and outcome; and the be- havior of parole officers. There was only one study of juries, which has become the domain of psychologists. Perhaps because police departments had racially integrated and politicians had per- suaded voters of the urgency of “law and order,” there was considerably less interest in police conduct (community policing, homicide clear- ance rates) or misconduct (except in particu- larly sensitive situations, such as those involving Muslim Americans, perceptions of racial bias, or racially motivated hate crimes) and more in- terest in factors leading communities to assist the police. Like studies of judicial support for the rule of law, those of police concentrated on less stable countries: Russia, Mexico, and Tai- wan. Similarly, there was only token interest in penology: the shift in Britain from trans- portation to prison, the history of lynching, why Canada remains less punitive than the United States, women in prison, and the death penalty (the effect of testimony by helping professions, clemency petitions, racial differences among ju- rors, how belief in the prospect of release af- fects juror decisions, the transformation of ex- ecutions from public spectacle to private). Agreeing with exhortations for greater attention to race and gender, one LSR editor (O’Barr & Layish 1997) noted that those topics were mentioned no more than once an issue in the first 30 volumes, less often than in most leading law reviews according to Obasogie (2007). Another LSR editor (Silbey 2000) found that women editors tended to publish more articles by women authors. Attention to these issues has not greatly changed (except for the special issue on gender, Volume 25, Number 2). Interest in racial and ethnic inequality focused on situations in which law was most visibly coercive, the CJS: racial differences in juror be- havior, bias in sentencing, racial segregation of prisoners, and prison’s disproportionate effect on the health of African American men. But recent scholarship displayed several marked (and arguably related) differences: racial cate- gories included the full spectrum of ethnicities, broadened by immigration; race was seen as socially constructed, often by legal institutions, and intersecting with gender; and the effect of race was documented outside the CJS, notably in the treatment of immigrants (decisions to admit, application of miscegenation laws, labor regulation). Researchers studied situations in which dominant (or previously dominant) groups were minorities: Anglos in New Mexico, Russians in Estonia. Although a few articles dealt with women as objects (the failure of Muslim legal systems to punish honor killings, New Zealand men uniting across racial lines 14 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  15. 15. LS06CH01-Abel ARI 4 October 2010 14:58 to oppress women), others examined women’s agency (as lawyers, for instance). Researchers asked why the legal system reproduced racial inequality and oppression but allowed women to challenge gender stereotypes. Studies of the legal profession posed familiar questions: how lawyers were distributed across roles, sources of career satisfaction, ethnore- ligious barriers, competition for partnership, the organization and functions of outside and house counsel. But researchers also addressed novel developments: the relationship between local and global lawyers in China, the effect of U.S. News and World Report rankings on law school admissions, jurisdictional struggles between English solicitors and barristers. Al- though access to justice never again achieved its original prominence, researchers studied the cost and quality of lawyers and nonlawyers, the level of government support for legal services, the impact of legal representation in eviction proceedings, explanations for pro bono lawyer- ing, and how Chinese lawyers screen out la- bor grievances. Just as cause lawyering had displaced state action as the engine of social change, so there was increasing attention to al- ternatives to state-funded lawyers for the poor. This analysis reveals considerable continu- ity between the first and last 13 years of LSR in terms of questions and answers. But several new lines of inquiry offer promising alter- natives to the “clickety-clack.” The “cultural turn”—advocated, criticized, or performed in presidential addresses by Macaulay, Sarat, Handler, and Merry and in the special issue on ideology—has been well represented, signifying an important new phase in L&S scholarship. Some of these articles resemble the earlier “knowledge and opinion about law” studies, investigating cultural variation in attitudes toward particular crimes (pros- titution, pornography, sexual harassment) or organizational wrongdoing, preferences for restorative or retributive justice, willingness to accept ignorance-of-law defenses, perceptions of jury selection fairness, Cuban entrepreneurs’ views about capitalism and markets. Others examined how attitudes were produced (media coverage of products liability verdicts, outrage at an Italian judge’s disrespect for a rape victim, the influence of the South African Truth and Reconciliation Commission on legal consciousness), the persistence of myths (for in- stance, that border controls limit immigration), the impact of judicial election campaigns on attitudes toward courts, or the “gap” between law and public beliefs about it. Some looked at how legal consciousness about the right to health care affected claims, or how being a U.S. domestic violence victim or Chinese legal aid plaintiff affected perceptions of those legal systems. One researcher analyzed the stories youths told about conflicts they experienced first- or secondhand; another asked how Sarajevo residents felt toward the International Criminal Tribunal for Yugoslavia. Only a few articles sought to relate attitudes to actions (cf. Tyler 2006): how belief in procedural justice and opinions about the police affected calls to the police, or how attitudes influenced willingness to resort to self-help. The cultural turn may represent pure rather than applied sociology, advancing understand- ing, not policy formation. Examples include Sarat’s (2000) masterful interpretation of The Sweet Hereafter and analyses of responsibility in courtroom television, the defense of homo- sexual advance in popular culture and criminal trials, and concepts of honor and dignity in the film Unforgiven. Other researchers explored the culture that participants bring to and construct in encounters with law, such as the use of En- glish and Cantonese in Hong Kong courts or how sex differences and social ties shape par- ties’ language in dispute settlement. Mertz’s (2007) analysis of language in the law school classroom exposed how professors influence the consciousness of future lawyers. A second innovation—whose significance is certain to grow—is interest in globalization: le- gal behavior transcending national boundaries. Kritzer (2007) noted that 32 of the 82 articles he published as LSR editor concerned legal phenomena outside the United States. Articles document how litigation for women’s rights in the European Court of Justice has diminished • Law and Society 15 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  16. 16. LS06CH01-Abel ARI 4 October 2010 14:58 national sovereignty, how Hawaiians invoked international law, international pressures against female genital mutilation, and interna- tional police cooperation. Merry’s (2006) work on the local practice of international human rights has been particularly influential. INTERPRETATION AND CRITIQUE What explains the articles LSR published in these two periods? Politics seems influential. The 1960s and early 1970s were a unique mo- ment. Enjoying unparalleled prosperity, the United States dominated the global economy, even though it was geopolitically challenged by the Soviet Union. Most Americans fondly re- membered New Deal efforts to end the Depres- sion and create a regulatory and welfare state. They acknowledged the pressing challenges of poverty, racism, patriarchy, consumer protec- tion, and environmentalism. State responses in- cluded landmark U.S. Supreme Court decisions as well as the legislative programs of Kennedy’s New Frontier and Johnson’s Great Soci- ety. Revolting against the Cold War (Korea, McCarthyism, Vietnam) and stifling cultural conformity, youth believed in infinite possi- bility. Social scientists were supremely confi- dent in their engineering powers; the Gluecks (Glueck & Glueck 1930), for instance, believed they could identify incipient delinquency and nip it in the bud. L&S sought to guide liberal reforms: ending race and sex discrimination, re- habilitating criminals, alleviating poverty, un- derstanding Supreme Court decision making, rendering laws more effective. The reaction was prompt and harsh. The Vietnam War impoverished the War on Poverty. Confidence in unlimited horizons was supplanted by pervasive worries about limits: dwindling natural resources, global warming, new epidemics, growing debt, skepticism about science, and foreign competition. Republicans destroyed the New Deal coalition by diverting white ethnic worker anxieties into resentment of the civil rights movement’s limited achieve- ments. Four decades of Republican control of the White House (interrupted only by weak- ened Carter and Clinton administrations) al- lowed the Federalist Society to pack the federal courts. Nixon hamstrung the Legal Services Corporation; his successors starved it. Reagan preached the gospel that government was the enemy; regulation became the problem rather than the solution. A lavish corporate advertis- ing campaign convinced Americans that courts were suffering a litigation crisis (Haltom & McCann 2004). Once liberal legalism had cleansed itself of de jure injustices (violations of equal protection and due process), judicial victories became more elusive and precarious. Wechsler (1959) had already attacked Brown for violating “neutral principles”; affirmative action was even harder to justify. Originalists assailed Roe v. Wade and championed gun ownership and corporate free speech. Whereas new con- stitutions such as South Africa’s contain third- generation rights to substantive justice, En- lightenment constitutions such as that of the United States do not (Hazard 1969). Aspirations to social justice were replaced by the belief that greed was good, even godly. In- equality was blamed on bad individual choices rather than oppressive structures. Postfeminists repudiated their mothers’ attack on patriarchy; the privileged solved the tension between work and family by staying home to care for their children or hiring women of color to do so. The emergence of a tiny black middle class (and the election of a black president) demonstrated that the civil rights movement was obsolete; the black underclass was beyond saving. Immi- grants, especially the undocumented, deserved no legal rights; that vulnerability (as well as their varied origins) made organizing difficult. (Transforming racism into immigration con- trol had been the project of grand apartheid.) Clinton ended “welfare as we know it” rather than poverty. Retribution replaced rehabilita- tion in criminal justice. By making marriage a centerpiece of their struggle, gays and lesbians invoked the liberal paradigm, while opponents railed against “special rights.” Markets were hailed as the consumer’s best friend; efficient market theory insisted that investors needed no 16 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  17. 17. LS06CH01-Abel ARI 4 October 2010 14:58 other. Successful antitax campaigns, weakened labor unions, and an overheated financial sector combined to increase income inequality. The end of the Cold War, paradoxically, reduced pressure on the United States to promote so- cial justice (Dudziak 2000). The declaration of a war on terror excused the massive curtailment of civil liberties. In this reactionary political environment, L&S was rapidly overshadowed by L&E, which had many advantages. Whereas the 1960s were troubled about inequalities of wealth (and power), the 1980s were single-mindedly fo- cused on the creation of wealth, which was supposed to trickle down ( Judt 2009). If so- cial scientists previously had influenced state action (e.g., in Brown or the War on Poverty), economists were the new technocrats. Whereas L&S wanted to make regulation more effective, L&E wanted to minimize its “distortions” of the market (Coase 1960). Whereas L&S law- in-action studies deployed Geertzian “thick description” to limn the world’s irreducible complexity, L&E simplified by making numer- ous counterfactual assumptions (zero transac- tion costs, perfectly competitive markets). L&S produced ideographic accounts of singularities; L&E aspired to be nomothetic and cumula- tive. At a time when social scientists were los- ing confidence in their ability to predict the consequences of state action, economics readily lent itself to (often simplistic) normative con- clusions (while claiming to be positive). As L&S abjured policy relevance, L&E eagerly assumed the mantle (now aided by behavioral economics, which claims to synthesize the two disciplines). Recent issues of the Journal of Empirical Legal Studies and Experimental and Empirical Studies address a wide range of policy concerns, e.g., whether discovery promotes settlement; how universal health insurance and cost contain- ment affect mortality rates; the effect of patents on vegetable crop diversity. Armed with neoclassical theory and a scientific-sounding vocabulary, law professors confidently engaged in economic analysis. Like other recent converts to a faith, many be- came more libertarian than Chicago’s free market priests. L&S required empirical re- search, which was laborious and demanded methodological skills most lawyers lacked; L&E simply deduced conclusions from axioms. L&E acolytes (many of them lawyers) aspired to practice economics, adopting its disciplinary tenets while letting law define the research agenda. L&S practitioners (mostly social sci- entists) often were alienated from their orig- inal disciplines and united only by an inter- est in law (a heterogeneous composite of rules, processes, institutions, and people). By neces- sity, L&S was a big tent, methodologically and theoretically: quantitative and qualitative, posi- tivist and hermeneutic. Some of its choices con- tributed to L&S’s marginality: avoiding the of- ten esoteric behavior of economic institutions; studying down (the objects of legal domination) rather than up (those wielding law’s power). And the jurisdictional contest was unequal: L&E was lavishly funded, often by conserva- tive foundations (Olin), which paid for summer institutes offering crash courses in economics to law professors and judges (compare Manne’s “Pareto under the Pines/Palms” with Yegge’s SSMILE). The transformed political environment also may help explain the “cultural turn” taken by L&S (following several of its parent social sci- ences). Sarat (2009, p. 9) welcomed the fact that “today we have law on the books, law in action, and now, law in the image.” Might our concern with images reflect a depoliticized culture? Having lost faith in the state’s willingness or capacity to effect social change, we look to individual agency and see consciousness as the obstacle. Americans who once defined themselves by political ideologies now do so by consumer preferences: how they look, what they wear, the foods they eat, the music they listen to, the soaps they watch, the sports they play, the teams they cheer. (Slackers are just the mirror image, limiting their resistance to not doing or buying. Sartre’s committed intellectual has been displaced by the resolutely apolitical hipster.) Americans are fascinated by the peccadilloes of the moment’s celebrities, the fodder of the tabloids and late-night talk shows (as I write • Law and Society 17 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  18. 18. LS06CH01-Abel ARI 4 October 2010 14:58 this, the White House gate crashers and Tiger Woods), today’s bread and circuses. Voters are influenced more by politicians’ images and lifestyles than their policies (for good or bad, vide Obama and Palin). Facebook and Twitter have encouraged entire generations to regress to adolescence, obsessing about the quotidian trivialities of their circle of friends. The cyber- savvy play in the ether. Popular literature has deteriorated into a narcissistic baring of secrets. Whereas feminists taught us to expand the political to include the personal, contemporary politics has collapsed into the black hole of solipsism. Instead of remaking the world—a collective project directed outward—we are obsessed with individual self-improvement (see the bestseller lists or Amazon rankings) (Lasch 1978). All this is consistent with economists’ focus on individual choice and conservative political demands for personal responsibility. Women “choose” to be raped by wearing sexy clothes; workers “choose” to risk injury or illness in exchange for higher wages; gays “choose” a “lifestyle” and “choose” AIDS through unpro- tected sex; poor communities “choose” to ex- pose their members to toxic chemicals; youth should “just say no” to drugs and extramar- ital sex. Marx (1964 [1852]) denounced this 150 years ago: Men make their own history, but they do not make it as they please; they do not make it un- der self-selected circumstances, but under cir- cumstances existing already, given and trans- mitted from the past. Ignoring these constraints can lead us to mis- take Thoreau’s “lives of quiet desperation” for effective resistance. The actions identified by Merry—“foot dragging, sabotage, subversive songs”—are no more effective against oppres- sion than are substance abuse, gang banging, graffiti, wife beating, religion, or expressive politics (anarchists breaking store windows at World Trade Organization meetings, terrorism). Consciousness-raising groups empowered women to challenge the roles dictated by pa- triarchy. But racial minorities are oppressed by more than consciousness; they need access to education, wealth, and power. Blaming poverty on culture (Moynihan 1965, Lewis 1966, Harrison 2006) can lead to resignation: “the poor you shall always have with you.” Cultural studies must develop and test theories relat- ing legal consciousness to action, starting with people’s actual beliefs, not the popular culture they consume. People know the difference be- tween images (television, film, fiction) and re- ality. Their deepest beliefs about law derive from experience (e.g., criminal victimization, police stops, tax audits, custody disputes, evic- tions, mortgage foreclosures). Opinions about legal institutions, processes, rules, and events divorced from daily life may be easy to elicit through closed-ended questionnaires, but their meaning is opaque. We need to know whether belief in law’s legitimacy makes people more willing to comply against self-interest (Hyde 1983) and why the rich and powerful feel so entitled to manipulate law to their advantage. George H.W. Bush is not the only one who has problems with “that vision thing.” Half a century ago, Daniel Bell (1960) predicted the end of ideology; three decades later Francis Fukuyama (1992) imitatively foretold the end of history. Although both may have been pre- mature, many liberals have lost faith in their ideals (not just the state’s capacity to achieve them). Conservatives, who root their beliefs in tradition and religion, may always be more con- fident. As Yeats (1920) said, “The best lack all conviction, while the worst/Are full of passion- ate intensity.” Echoing Hamlet’s “native hue of resolution . . . sicklied o’er with the pale cast of thought,” Handler (1992a, p. 726) acknowl- edged that “reflexivity becomes disabling,” and Mather (2003) expressed concern about cul- turalimperialism.Handler’shopeforconsensus through Habermas’s “discursive and argumen- tative practices” must confront the bitter par- tisan politics of recent decades. Despairing of any firm foundation for his ethical convictions, Leff (1979) nevertheless declared: 18 Abel byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
  19. 19. LS06CH01-Abel ARI 4 October 2010 14:58 Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot—and General Custer too—have earned salvation. Those who acquiesced deserve to be damned. There is in the world such a thing as evil. [All together now:] Sez who? God help us. LSA presidents agreed. Despite disillusion and skepticism, each has urged scholarship to promote progressive social change. Law is in- trinsically normative; its prescriptions embody societal ideals. So even though I found little evidence that L&S practice followed program, I also cannot resist the hortatory impulse. For all my reservations about the cultural turn, I agree that consciousness powerfully obstructs reform. Americans have anathe- matized regulation while demanding greater protection (from dangerous foods, drugs, and environmental pollutants) and calling for more criminal convictions and longer prison sentences. They have retained a naive faith in an unregulated financial market during the greatest recession in half a century, caused by subprime mortgages and mystifying deriva- tives. They tolerate regulatory competition between jurisdictions, which incites a race to the bottom: tax havens shelter corporations and wealthy individuals; poor regions welcome environmental hazards; capital chases the low- est labor costs. Their antipathy toward the state encourages it to outsource essential functions to less responsible private entities. Americans demand more of government but refuse to tax themselves. As a result, public services are starved, quality deteriorates, prices increase, and usage declines, feeding a vicious cycle, tragically exemplified by the loss of faith in public education. Americans vigorously assert their own rights while accusing others of filing frivolous lawsuits, fueling a litigation crisis. The less control people feel over their lives the more they yearn for an illusory autonomy— epitomized by survivalists who light out for the territories like latter-day Huck Finns. The more interdependent the world, the more Americans turn isolationist and protectionist or embrace military unilateralism. Science, which seemed to offer salvation in postwar America, now provokes deep suspicion: genetically modified foods, nanotechnology, vaccinations. Technology dramatically eases our lives while making us more dependent on devices we cannot understand. Macroeconomic issues seem incomprehensible and insoluble: tax re- form, the looming costs of Social Security and Medicare, the ballooning national debt (much of it owed to China), chronic trade imbalances. Powerful lobbies stymie governmental action on guns and health care. Unregulated campaign contributions corrupt democracy. Income in- equality grows relentlessly, fueled by regressive taxes, a private sector that is 92% unorganized, capital flight, and international labor compe- tition. Intractable collective action problems complicate responses to global warming. Confronted by so many problems they cannot solve, or even understand, people take refuge in religion, which seems to offer moral clarity in a confusing world and promises salvation after it. Politics increasingly shuns the pressing material issues identified above in favor of the symbolic: abortion, same sex marriage, ordina- tion of women and gays, religion in public life, pornography in popular culture, politicians’ sexual behavior (Abel 1998). Eschatological be- liefs proliferate. The loss of faith in rationality seems even greater in the Muslim world, which has seen itself falling behind the West for cen- turies. We urgently need to understand how these beliefs develop and how they might be changed. DISCLOSURE STATEMENT The author is not aware of any affiliations, memberships, funding, or financial holdings that might be perceived as affecting the objectivity of this review. • Law and Society 19 byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.
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  24. 24. LS06-frontmatter ARI 29 September 2010 12:22 Annual Review of Law and Social Science Volume 6, 2010Contents Law and Society: Project and Practice Richard L. Abel p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 1 Resistance to Legality Richard A. Brisbin, Jr. p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p25 Specters of Foucault in Law and Society Scholarship Mariana Valverde p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p45 Law and Cognitive Neuroscience Oliver R. Goodenough and Micaela Tucker p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p61 The Law’s Use of Brain Evidence Jay D. Aronson p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p93 Psychological Syndromes and Criminal Responsibility Christopher Slobogin p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 109 On the Politics of Imprisonments: A Review of Systematic Findings David Jacobs and Aubrey L. Jackson p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 129 Social Historical Studies of Women, Crime, and Courts Malcolm M. Feeley and Hadar Aviram p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 151 The Nexus of Domestic Violence Reform and Social Science: From Instrument of Social Change to Institutionalized Surveillance Kristin Bumiller p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 173 Law and Culture in a Global Context: Interventions to Eradicate Female Genital Cutting Elizabeth Heger Boyle and Amelia Cotton Corl p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 195 The Law and Economics of Bribery and Extortion Susan Rose-Ackerman p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 217 The Politics of Crime, Punishment, and Social Order in East Asia David Leheny and Sida Liu p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 239 Human Rights and Policing: Exigency or Incongruence? Julia Hornberger p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 259 v byCSIC-ConsejoSuperiordeInvestigacionesCientificason06/10/11.Forpersonaluseonly.