AAnnurev lawsocsci-102209-152851

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: abel@law.ucla.edu
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 lawsocsci.annualreviews.org
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
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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

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
www.annualreviews.org • Law and Society 3

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

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
Podgórecki, 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.

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

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” (Podgórecki 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,

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

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

& 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

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).

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

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 lèse majesté, 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

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

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

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

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

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

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.

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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
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