The Law and Society Reader II 9780814789339

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The Law & Society Reader II

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The Law & Society Reader II

Edited by

Erik Larson and Patrick Schmidt


NEW YORK UNIVERSITY PRESS New York and London © 2014 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

Library of Congress Cataloging-in-Publication Data The law and society reader II / edited by Erik Larson and Patrick Schmidt. pages cm Includes bibliographical references and index. ISBN 978-0-8147-7081-8 (hardback) — ISBN 978-0-8147-7061-0 (paper) 1.  Sociological jurisprudence. 2.  Law—Social aspects—United States.  I. Larson, Erik, editor of compilation. II. Schmidt, Patrick D. (Patrick Delbert), 1971- editor of compilation.   K376.L36955 2014   340’.115—dc23 2013046961 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook


Acknowledgments Introduction Erik Larson and Patrick Schmidt

Part I: Inequalities

xi 1


Does Law Benefit Those with the Most Resources?


Do the “Haves” Still Come Out Ahead? Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaulay


The Rule of Law and the Litigation Process: The Paradox of Losing by Winning Catherine Albiston


The Good Case: Decisions to Litigate at the World Trade Organization Joseph A. Conti




How Do Authority and Power Influence the Implementation of Law?



Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideology in Prosecutorial Decisionmaking Lisa Frohmann The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime Ryken Grattet and Valerie Jenness



Can Rights-Based Litigation Address Inequalities?


Popular Constitutionalism’s Hard When You’re Not Very Popular: Why the ACLU Turned to Courts Emily Zackin






Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights Thomas M. Keck

Part II: Organiz ations and L aw



When Is Regulation Effective?




Explaining Corporate Environmental Performance: How Does Regulation Matter? Robert A. Kagan, Dorothy Thornton, and Neil Gunningham The “Compliance” Trap: The Moral Message in Responsive Regulatory Enforcement Christine Parker Labor Regulation, Corporate Governance, and Legal Origin: A Case of Institutional Complementarity? Beth Ahlering and Simon Deakin




How Do Regulated Organizations Influence Legal Outcomes?



Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace Lauren B. Edelman, Howard S. Erlanger, and John Lande The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law Shauhin A. Talesh

Part III: L awy e r s a n d L e g a l Work




How Do Hierarchies Influence the Legal Profession?



Do Rankings Matter? The Effects of U.S. News & World Report Rankings on the Admissions Process of Law Schools Michael Sauder and Ryon Lancaster Lawyer Satisfaction in the Process of Structuring Legal Careers Ronit Dinovitzer and Bryant G. Garth




What Forces Influence Lawyers’ Practices?



The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995 John P. Heinz, Edward O. Laumann, Robert L. Nelson, and Ethan Michelson Lawyers, Mediation, and the Management of Divorce Practice Craig A. McEwen, Lynn Mather, and Richard J. Maiman



Can Lawyers Address Inequalities through Service and Political Work?



The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment Carroll Seron, Gregg Van Ryzin, Martin Frankel, and Jean Kovath


Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine Lisa Hajjar


Part IV: Legal Confrontations—Dispu ting a n d L e g a l C o n s c i o u sn e s s 19.

A New Social Constructionism for Sociolegal Studies Elizabeth Mertz

173 176

Why Do People Turn to Law in Disputes?



Litigating within Relationships: Disputes and Disturbance in the Regulatory Process Cary Coglianese


Pursuing Rights and Getting Justice on China’s Ethnic Frontier, 1949–1966 Neil J. Diamant


How Do People Use Ideas and Ideals in Legal Disputes?


Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund Gillian K. Hadfield




C ontents


Justice Excused: The Deployment of Law in Everyday Political Encounters George I. Lovell


How Do Ideas Influence Peoples’ Beliefs about Law?



Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers Tom R. Tyler and Robert J. Boeckmann


Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment Laura Beth Nielsen


How Does Consciousness Influence the Construction of Law?



Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies Anna-Maria Marshall


Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness Mary E. Gallagher


Part V: L aw as an Emergent Institu tion


How Does Law Relate to Other Social Institutions?



Competing Institutions: Law, Medicine, and Family in Neonatal Intensive Care Carol A. Heimer


Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth Katherine Beckett and Bruce Hoffman


How Do Legal Orders Change When Countries Change?




Alternative Readings: The Status of the Status of Children Act in Antigua and Barbuda Mindie Lazarus-Black


Landscapes of the Law: Injury, Remedy, and Social Change in Thailand David M. Engel


Truth, Reconciliation, and the Creation of a Human Rights Culture in South Africa James L. Gibson



How Has Law Become Global?




Rights, Religion, and Community: Approaches to Violence against Women in the Context of Globalization Sally Engle Merry Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes Yves Dezalay and Bryant Garth National Politics as International Process: The Case of Anti–Female Genital Cutting Laws Elizabeth Heger Boyle and Sharon E. Preves

Part VI: L aw as a Productive Institu tion





How Does Law Influence Group Identity?



Through a Green Lens: The Construction of Customary Environmental Law and Community in Indonesia’s Maluku Islands Charles Zerner Unsuitable Suitors: Anti-Miscegenation Laws, Naturalization Laws, and the Construction of Asian Identities Deenesh Sohoni



Can Groups Remake Identity through Law?



Think of the Hippopotamus: Rights Consciousness in the Fat Acceptance Movement Anna Kirkland Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship Erich W. Steinman



How Does Law Operate as a System of Ideas?


Blue Jeans, Rape, and the “De-Constitutive” Power of Law Kitty Calavita


Do Blind People See Race? Social, Legal, and Theoretical Considerations Osagie K. Obasogie






Can Social Science Inform Progressive Change in Law?



From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State Bryant Garth and Joyce Sterling


What Counts as Knowledge? A Reflection on Race, Social Science, and the Law Rachel F. Moran


Bibliography About the Authors About the Editors Index

411 417 423 425


From the beginning, we knew that the task of bringing the next generation of the Law & Society Reader into being would require the input and guidance of many. The Publications Committee and past presidents of the Law and Society Association, particularly Laura Gómez and Michael McCann, offered wise suggestions and support, while also backing our broad vision for this volume. A June 2012 workshop at the Centre for Socio-Legal Studies, Oxford, provided a helpful opportunity to gain perspective on the state of the field. We would especially like to thank Lauren Edelman, Howie Erlanger, and the many scholars who offered vital feedback at the Midwest Law and Society Retreat in September 2012. We also thank Scott Barclay, Liz Boyle, Simon Halliday, Bert Kritzer, Marina Kurchiyan, Bettina Lange, Doreen McBarnet, Herschel Nachlis, Nanda Pirie, Joachim Savelsberg, and Mark Suchman. Our colleagues—and particularly our students—at Macalester College gave us many occasions to think about (and reconsider) ideas for editing and organizing the selections and for writing the introductory material. As we delved further into the project, they often became an important first audience for edited versions of articles. In addition, Mara Aussendorf, Brad Belbas, Carley Davenport, Sean Hoops, Julianne Ragland, and Florence Schmidt gave crucial technological and editorial support. Diego Melo took on the task of reading nearly every edited selection as a summer project, offering valuable feedback. Our editors at NYU Press assisted greatly in the process. Debbie Gershenowitz shepherded us through the preliminary stages; Clara Platter helped bring the project to completion. Along with the other staff at NYU Press, including Constance Grady and Dorothea Halliday, their interest in the project provided important support. Also, we greatly appreciated the comments and suggestions of the anonymous reviewers, which were in equal measures encouraging and thoughtful. Finally, we owe a debt of gratitude to the editors and authors of the Law & Society Review: the high-quality scholarship and writing in the journal made the process of selecting the articles to excerpt in this volume difficult but extremely rewarding.


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Many students find themselves drawn to law as a topic or field of study. They often see in law an ability to right injustices, perceiving in law the advantages of independence, logic, and structure, which combine to promise the “correct” outcomes. From this perspective, law appears as a sanctuary from the dirtiness of politics, the ambiguity of culture, the self-interest of economics, and the messiness of social relations. The kind of legal education provided in many countries has done little to discourage students from their belief that law rises above these potential contaminants and remains pure. We may be a long way removed from the view that the laws of a nation are the expression of the will of a divine creator, but for many the appeal to law remains rooted in the belief of the distinctiveness of law as a pursuit. If anything, from this perspective, the study of political, cultural, economic, and social processes is most useful for how it can illuminate the problems that law should address. Indeed, a century ago, many reformers—the legal realists—turned to social science as one way of giving law exactly that sense of direction. Over the 20th century, however, the social sciences evolved and legal scholars changed their approach. Careful empirical research and new veins of theoretical insight complicated our understanding of law in the hands of people. Law, all but the most resolute will concede, is not as independent as once envisioned. As law actually operates, it remains connected to the messiness of the daily life of politics, culture, economic activity, and social relations. The belief that law is somehow majestically separate and uniquely powerful still influences the rhetoric of law and, through that rhetoric, aspects of how the law works in action. There is drama in the portrayal of law in fictional entertainment and in media reports of factual cases. But when we tear off the veneer of appearances, we open up a world that needs and welcomes any disciplinary or interdisciplinary approach that can help us understand how law works in society. This research tradition of social science concerned with law has long been a recognized field of scholarly inquiry, although it has been formally organized for only about half of a century. Founded in 1964, the Law and Society Association serves as a scholarly community for people from diverse disciplinary backgrounds who seek to bring their intellectual perspectives to the study of law. As an interdisciplinary community, the Law and Society Association draws together legal scholars, social scientists of all stripes (including sociologists, political scientists, anthropologists, psychologists, linguists, and economists), and humanists (notably historians, philosophers, and scholars of literature).



A simple question indicates the scope of law and society research: when and how does law work? The question has long been posed as the call to understand the law “in action,” recognizing that the various settings in which one encounters law both influence and are influenced by law. As a tradition, law and society research has demonstrated that how law is organized and what people think about it affects the operation and consequences of law. In short, how law and legal institutions are structured and the shared beliefs about what law does and should do influence many aspects of society. Among other influences, the organizational and cultural elements of law affect: how law operates and benefits some parties, who uses law, the ways that law can change society, when and how people call on law to address concerns, and the formation of social groups. As an endeavor, the questions and perspectives of law and society call on scholars to draw on the methods and theories of social science, because a fundamental goal of social science is to understand the variations that appear in and between societies. Unfortunately, it is too easy to displace social science with our intuitions, or “common sense.” The common sense perspective takes law for granted—as if law is always available or is the obvious solution to problems. Another way to put this perspective is the idea that if we did not have law, we would simply have to invent it. Some basic observations force us to challenge that intuition. People address many, perhaps most, of their problems and disputes without resorting to law. Furthermore, when law does rule, it does so by virtue of being an accomplishment: people had to make existing law apply to a new situation. Many legal changes result not from changes in the formal law, but shifts in how people interpret and apply law. Though constitutions are just one type of law, the Constitution of the United States furnishes one of the most dramatic examples: the meaning of the American Constitution—what judges say it means and what most people believe it means—has changed enormously over time, even though most of its words have stood unchanged for two centuries (Tushnet 2009; Carter and Burke 2010). Law forever varies, and the ongoing task for law and society is to keep up with the new manifestations and qualities of law. Good scholarship, like society then, never stands still but forever builds on the insights that have preceded it. Sometimes it shifts slowly, sometimes radically. At the beginning of the law and society movement, scholars offered some fundamental, enduring insights. The Law and Society Association saw fit to capture the insights of its first decades with a volume, The Law & Society Reader, published in 1995 and edited by Richard Abel. Over the ensuing twenty years, the law and society field has continued to produce new insights, sometimes tweaking old understandings, sometimes blossoming in new directions. The field has grown, splintered, and in many ways “come of age” (Friedman 2005). In time, the Law and Society Association recognized the need to capture a new portrait of its vibrant academic garden. This volume—the second Law & Society Reader—answers the call for a single source that brings together a selection of articles abridged from the Association’s publication, the flagship Law & Society Review. As stated in its publications policy, the Law & Society Review



publishes scholarly work that is “concerned with the cultural, economic, political, psychological, or social aspects of law and legal systems.” What comes together in a journal with such a broad mission? Helpfully, a somewhat mysterious ampersand graces the journal title: Law & Society. Perhaps its origin was the inspiration of a graphics designer who thought it would look catchier on the journal’s cover. Or, perhaps it was needed to save space on the paper-bound spine of the journal. But we invite someone who approaches the field for the first time to see the ampersand as deliberate and meaningful, making us think more deeply about the relations between law and society than we would if the more familiar, mundane word “and” were between the capitalized words. At the point of intersection of the two words, we are doing more than simply studying law and society simultaneously, as if there are two ongoing stories that intersect but float separately in the waves of history. The ampersand stands like a Greek letter in a mathematical equation, a variable inviting replacement. One substitution is that we’re studying law in society, to learn the ways that law affects society—its implementation, enforcement, impact, and effects on people’s lives. It is no coincidence that the law and society movement initially took shape during the 1960s, when there was great enthusiasm about the changes that the Supreme Court was bringing to American law. Facing major challenges, especially social and political inequality, law was seen as a vehicle for social change. Law in society was an instrument, a tool to turn to, just as it had been for law and society’s intellectual parents, the legal realists of the early 20th century. The “&” also invites an inversion of the relationship between law and society: society in law. Law is an unquestionably significant concept in the understanding of human society, like “power,” “gender,” “economy,” or “language.” Whatever the place and time, even if not all peoples and cultures possess something that looks and feels like law as we understand it in our own context, those communities understand the fundamental impulse of organizing relationships among people in conflict, of seeking ways to put patterns on human interactions, and of serving values—whether peace, order, justice, legitimacy, or something else—through those structures. In short and in its most general, law. Law contains all of the struggles of society and gives a focus to those conflicts. The power that some people wield over others, the inequalities that people experience, and their identities are reflected in law and take root through law. Once we see the connection between “law” and “society” as open and contested, we must challenge our understandings of the terms themselves. Law is sometimes too quickly associated with the nation-state or other governmental units. In contrast, law and society scholarship sees many forms of “law” in operation in one society. “Society,” too, invites critique. We can find in this Reader evidence of how many ways this term can be understood and explored. In practice, we render “society” as the study of individuals, organizations, institutions, or conceptual structures—sometimes simultaneously. The ampersand, then, symbolizes the multiple ways that we can study the intersection of law and society. In offering this second Reader, we need that symbol more



than ever, because over the past two decades law and society scholars have pushed our understanding of law in diverse, provocative directions.

Capturing Diversity and Changing Contexts The ampersand is also an invitation. Fundamentally, law and society research begins with the premise that law has deep connections to society that influence the operation of law and the potential for law to affect social conditions. Both conceptually (at least initially) and in practice, this intellectual pursuit—how does law connect with society?— invites a very significant role for sociology. But the Law and Society Association and Law & Society Review have always been interdisciplinary spaces. Indeed, one can point to the fact that “society” includes culture (what we might think of as anthropologists’ forte), legacies of the past (history), government (political science), individual motivation (psychology), and production, distribution, and consumption (economics). Given the myriad ways that law often seeks to bring together two or more of these realms—using the power of government to regulate business, attempting to place culturally resonant incentives to change motivation—the scholarly enterprise of law and society must be multidisciplinary or interdisciplinary. The Law and Society Association has become a big tent, offering a space for disciplinary and legal scholars who wish to exchange ideas. A measure of caution remains essential. The Law & Society Review, as a common meeting ground, doesn’t exhaust the field. Scholars who identify with the aims and spirit of the law and society tradition publish in many areas, and may never even have a piece of work published by the journal. This volume cannot claim to represent the “canon” of work in the field (see instead Seron 2006). Nor were the entries for this volume chosen by reference to measures of scholarly “impact,” the frequency with which they have been cited by other scholars, or the careful quantitative study of patterns in the journal (Silbey 2000; Abel 2010). A comprehensive accounting of developments in law and society research and its influence would have to take in many other avenues by which this work finds its audiences, particularly books and other disciplinary and interdisciplinary journals. Notwithstanding these facts, the Law & Society Review has continued to publish a range of research that engages and represents the enduring questions and emerging debates in this scholarly community. As such, it has remained an important outlet for bringing together the array of new insights about law. More than that, the Review may be the closest equivalent to a meeting place, a site of conversation. The selection of articles in this volume accordingly provides an entry point into significant developments that motivate scholars and students of law and society. Some readers may wish to use the selections in this volume to begin deeper forays into particular disciplinary or interdisciplinary traditions; others may be content to take from it a broader perspective on law. Changes in the wider academic and scholarly environments have shaped how law and society research has developed. At the time of the Law and Society Association’s founding, numerous supports existed for the use of social science to contribute to progressive social change. The priorities of political leaders, provision of research



funding, and broader cultural ideas aligned to the new field’s benefit. Additionally, the intellectual predecessors of early law and society scholars provided important orienting ideas. Together, the political, social, and academic environment shaped the types of questions that the first generation of law and society scholars asked. As law and society research developed its own body of knowledge, its surrounding environments experienced significant change. Social life and legal practices have witnessed an increase in self-consciously global activity, as companies headquartered all around the world have expanded international activities and as governments have established more penetrating international legal institutions. Politically, the post–Cold War world has seen a wave of democratic change and consolidation, bringing with it a renewed focus on spreading the rule of law. In academic circles, many of the disciplines to which law and society scholars are connected have changed. For example, many within the social sciences have undertaken a “cultural turn,” renewing the emphasis on how shared understandings and ideas shape behavior. At the same time, an increased prevalence of economic reasoning to understand law has provided an alternative social science-based approach to understanding law. This “law and economics” approach has provided law and society scholars an at-times friendly interlocutor and a contrasting alternative, but one that has proven difficult to integrate into a synthetic understanding of social relations. Finally, a wider cultural pessimism about the possibilities for law-based progressive social change has also encouraged new thinking, reflecting the realization that attempts to change have often produced unintended consequences or have confronted powerful forces that may not have been well understood. The generation of scholarship encompassed by the second Law & Society Reader thus shares many of the same theoretical touchstones as the first generation of law and society research, but the authors of the articles in this volume have had to engage new challenges and uncertainties. An unchanging legacy of the earliest law and society scholarship is that this research must be engaged with, responsive to, and reflective of developments in world. In this global, interdisciplinary conversation, it cannot be tone-deaf to change. Attempting to accommodate both enduring and emerging themes for scholarly focus, the structure of this book provides six entry points into key lines of work for law and society scholars and students. Each section of the book includes a short introduction that sets the stage for a series of orienting questions. For each question, there are two or three contributions that provide either explicit arguments or more implicit insight about the question. At times, the articles provide competing answers to the questions, while in other instances they share premises or provide similar conclusions. No matter their relation to one another, the articles illuminate different ways to approach or answer the questions, including diverse theoretical insights, a variety of research traditions, and distinct settings of the research. Finally, we end this introduction with a few notes about the articles. In all cases, we have significantly condensed the articles that we have selected. We have done so to increase the range of material that we could include in this volume. Of course, there is the tradeoff that in abridging articles, some of the details of the arguments, parts of the theoretical framing, and elements of the research methods must be cut.



To enhance the flow of the work, we have also removed many of the internal references in the selections. We have, instead, retained such references only when there is a direct quote to scholarly work or an essential reference to foundational material. (Direct quotes from archival materials have not been retained as references.) Readers interested in further details from the articles or cited material should consult the original articles in the Law & Society Review. Finally, to improve readability, we have sought to minimize the use of ellipses to show where we have cut material. We have retained ellipses only when cutting from within a sentence. Each of these decisions reflects the principle that guided us in putting the volume together: providing readers an interesting, abbreviated point of entry to the enduring and emerging questions that motivate law and society research and the insights that come from this scholarly activity. We hope that the authors whose work we excerpted find that our editing decisions have done justice to their contributions to the field. In exchange, we hope readers find the excerpted articles a compelling entry to the continuing, rich exchange about the intersections of law and society.

Pa rt I


Most readers of this volume either have or will at some point experience renting an apartment or house. When renting, you almost certainly sign a lease agreement. Some renters may have a dispute with the property owner about the rent due or condition of the housing. Housing law influences how people experience such situations: What does the law require and encourage each party to do, now and later? Does the law give one party an advantage? Is it worth talking to a lawyer, much less taking the dispute to court? As noted in the introduction to this volume, law and society scholarship has its roots in a progressive academic tradition and an era in which political leaders sought to harness law to remedy social problems, such as reducing conflict between renters and owners or improving housing quality. Accordingly, law and society scholarship has long sought to understand how law is intertwined with social, political, and economic inequality. If we understand inequality as structured or patterned differences between groups or individuals, we could ask questions about who benefits from law and how such differences come to be. A narrow explanation could attribute any differences in legal outcomes to differences in material resources. From this perspective, legal inequalities merely reflect other inequalities: those with more financial resources (such as property owners) can purchase superior legal services and may benefit from greater access to justice than those with fewer resources (such as tenants). Sociolegal scholars, however, have demonstrated that legal inequalities do not come down merely to differences in resources. A fundamental insight is that law operates as a system: it has organized procedures and enduring connections to other elements of society. These organizational and structural features of law produce legal inequalities by influencing not only the inputs into the legal system, but also how the legal system processes cases to reach decisions. At the same time, this research tradition emphasizes that the legal system is a social system: it is not merely an automatic case-processing machine, but requires the active participation of people and organizations at all stages of decision making. For example, we take interest in how the owner-tenant relation is itself a legal relation and whether and how tenants, owners, courts, regulators, and others become involved in housing disputes. Classical perspectives in the sociology of law show how the structure and organization of law associate with broader patterns of power and authority. (For more detailed, yet accessible, overviews, see Sutton 2001 and Deflem 2008). Max Weber recognized that legal systems develop as part of a larger pattern of changes in the social relations between rulers, officials, and those subject to rule. Weber pointed to 7

8 Part I

the increasing role of rational bureaucracy—an official administration governed by written rules that establish authority and that direct operations—in shaping social and political life, particularly as its rules relate to law. Law that is itself more governed by written rules could be more predictable but also prove frustrating to those seeking to achieve goals not recognized by the formal legal system. An ascendant rational legal system grows more independent of other sources of power to influence decision making about important social and political issues. Accordingly, Weber’s legacy emphasizes the importance of understanding how the internal operations of law relate to power and how tensions between the formal rules of law and particular substantive ends that people want to achieve can affect social and political outcomes. Returning to the example of rental property, legal bureaucracy has myriad effects on housing: inspection and licensing procedures could define certain requirements for a space to be a bedroom, jurisdictions may establish specialized housing courts, and statutes may include provisions that automatically are part of any residential rental agreement even if not in an actual lease (such as rules concerning the return of a security deposit). A trajectory of academic traditions (sociological jurisprudence, legal realism, and normative theory), however, asks scholars to examine how law itself acts in practice. Rather than provide a detailed lineage of these ideas, we focus on the similar foundational premises they left sociolegal scholars. The consequences of legal action (laws, court decisions) merit consideration, particularly because law can serve as a means of seeking social change. These consequences are not simply a function of legal doctrine, but also reflect how the legal system is connected to society. Finally, if law can respond to societal needs and demands, questions about who has access to law and how their voices enter into legal decision making deserve attention. For instance, reform efforts may seek to regulate rental housing as part of a community. Such ordinances may have different consequences if they take the form of establishing minimum standards of habitability or if they restrict the number of unrelated adults who may live in a single rental unit. During the early years of law and society research, social scientists increased attention to the critical social science legacies derived from the writings of Karl Marx. Extending beyond social class, a new generation of scholars examined how the legal system intertwined with gender and racial inequalities. Although this critical tradition has consistently shown the importance of material resources, it also pays attention to the role ideas play in connecting law with inequality. Dominant ideas could influence notions of justice, assumptions of what is natural, and which issues were considered important to address. Related to rental housing, law may give greater priority to the property interests of mortgage lenders during a foreclosure rather than a tenant’s housing interest. Additionally, the rise of background screening may limit the availability of rental housing for people with criminal records, disproportionately affecting minority group members (Thacher 2008). These traditions highlight how the legal system is connected to other parts of society while also retaining some independence from society, showing how the legal system might both reflect and produce inequalities. The articles in this section show



how sociolegal scholars have built on these intellectual legacies in the study of inequality. Because the selections provide exposition of some of the classical insights and debates in law and society research, we merely preview the themes here. One theme is how law’s operation could affect inequalities. Galanter’s (1974) article asked how the legal system could systematically benefit some parties based on their different approaches to litigation and inspired subsequent scholars to examine how the structure and organization of law might benefit particular parties. A second line of research takes us inside legal decision making to examine how discretion might both reflect and reproduce inequalities. Finally, a persistent question facing law and society scholars is whether the power of law can be harnessed for progressive social change. Revisionist scholars, such as Rosenberg (2008), warned that legal strategies may have characteristics that fundamentally limit social change, although this perspective has generated significant debate. Together, these questions and the articles addressing them ask us to consider both the power of law as a force in society and the influence of society in the operation of law.

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Do the “Haves” Still Come Out Ahead? Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaul ay

In [“Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Marc] Galanter (1974) attempts to explain the outcome of trial court litigation in essentially structural terms. He discusses “the way in which the basic architecture of the legal system creates and limits the possibilities of using the system for redistributive change.” Galanter divides parties into “one shotters” and “repeat players.” A one shotter is a person, business, or organizational entity that deals with the legal system infrequently. The one shotter’s claims are too large (relative to their size) or too small (relative to the cost of remedies) to be managed routinely and rationally, but a one shotter’s interest in winning a particular case is very high. A repeat player, on the other hand, has had, and anticipates having, repeated litigation. Repeat players have low stakes in the outcome of any particular case and have the resources to pursue their long-term interests. They can anticipate legal problems and can often structure transactions and compile a record to justify their actions. They develop expertise and have access to specialists who are skilled in dealing with particular types of cases or issues. They enjoy economies of scale and encounter low start-up costs for any particular case. For example, an automobile manufacturer may anticipate challenges to a particular part or system and thus develop legal strategies and invest in research to defend itself. Legal strategies can be modified and developed from one case, or group of cases, to the next. Repeat players can also benefit from informal relations with (and “educate”) institutional incumbents such as judges, hearing examiners, and court clerks. The credibility and legitimacy that flows from repeated contacts may help to sustain a repeat player’s claims. Repeat players may not settle a particular case when a one shotter would do so. If they give in too easily in one case, it may affect the demands made in the next case. Yet they can play the odds and maximize gain over a series of cases even while suffering maximum loss in some. Seldom will one case be critically important. As a result, they consider questions of precedent over the long run and are able to “play for rules.” Repeat players may settle (often with low visibility) cases where they expect unfavorable

Abridged from Law & Society Review 33, no. 4 (1999): 803–10.


14 Joel B. Grossman, Herbert M. Kritzer, and Stewart Macaul ay

verdicts or rule outcomes. They can trade symbolic defeats for tangible gains. One shotters, by definition, are necessarily more interested in immediate outcomes. Galanter also focuses on litigation configurations. One shotters may sue one shotters. Such cases often are between parties who have some ongoing relationship and who are disputing over some indivisible good. Cost barriers will ration access to the legal system in many of these cases. Repeat players may also sue each other. The sanctions of long-term continuing relations (which they wish to maintain), however, tend to minimize such cases. Mediation, arbitration, and settlement may be better options. When repeat players are contesting issues of principle or individual rights, however, some authoritative resolution may be necessary and the risks or costs of defeat may have to be endured. Likewise, governmental units may find it difficult to settle highvisibility cases because of the unfavorable publicity likely to be generated. Of course, there are also disputes between repeat players who have no relationship to protect. Perhaps the remaining two litigation patterns in Galanter’s matrix are more interesting. Repeat players may sue one shotters. Sometimes these cases take the form of stereotyped mass processing, bearing little resemblance to full-dress, adversarial litigation. Creditors seek default judgments, attachment of wages, property title confirmations, and so on. Traffic violations are processed routinely. Only a bare few are contested. A court in such cases serves more as an administrative office registering previously determined (or highly predictable) outcomes rather than as either an adjudicator or a locus for bargaining in the shadow of the law. Criminal prosecutions and administrative sanctions also fall into this category. Plea bargains and some settlements have to be approved by a judge, but the outcome is essentially determined elsewhere. The great bulk of litigation falls into this category. No particular case raises major public policy or legal concerns. Taken together, such cases reflect the increasingly bureaucratic attributes of a mass society set against an ideology of liberalism. Finally, one shotters may sue repeat players. The one shotter may seek outside help to create leverage against an entity or organization with much greater power and resources. For example, a consumer is displeased with repairs to an automobile; an employee seeks redress from adverse working conditions or disputes a job termination; a tenant seeks to compel a landlord to make repairs to a dwelling. In such cases, according to Galanter, the advantages of repeat players are maximized. Although some one shotters do win such lawsuits (especially when they are supported by a third party that is itself a repeat player, such as the EEOC [Equal Employment Opportunity Commission], tenants’ union, or an environmental group or agency), the configuration of the parties and their disparate resources suggests that repeat players will prevail in a large majority of these cases. Galanter also talks about how the nature of U.S. legal institutions increases the advantages of repeat players. Claims handling institutions are largely passive and reactive; the plaintiff or moving party must mobilize them and overcome cost barriers to access. Some of these barriers can be reduced by devices such as fee shifting and contingent fee arrangements, but access burdens still remain. Our adversarial system still assumes that the parties are endowed equally with economic resources, investigative opportunities, and legal skills, but that is rarely the case. Most U.S. legal institutions



are also characterized by overload that inevitably affects the balance of advantages and favors those with resources. Overload often leads to delay, which is time consuming and discounts the value—or likelihood—of recovery. A litigant must have the resources to keep the case alive. Overload also induces institutional actors to place a high value on clearing dockets, which leads to discouraging full-dress adjudication in favor of bargaining and negotiation, settlements, routine processing, and diversion that are more likely to favor repeat players. In addition, it encourages judges, administrators, and legislators to adopt restrictive rules to discourage litigation. The “Haves” article does not assert a class or power elite analysis (although it is often wrongly claimed that it does). Galanter does not say that members of the dominant class, or organizations with great wealth, always win in litigation. Rather, he focuses on the structural advantages of repeat players, and he concedes that one shotters without power may be able to gain many of the advantages of a repeat player if they can engage the support of organizations or lawyers who regularly handle similar cases. The contingent fee, punitive damages, and benefits of specialization and participating in networks of those who regularly handle cases of a particular type may all help one shotters acquire some of the advantages possessed by repeat players. Indeed, much that is called tort reform involves challenging the structural devices that allow individuals to hire lawyers who can supply the advantages of repeat playership. From a law and society perspective, such observations raise questions about the distribution of legal and political power in a democratic society, the symbolic uses of law, and the impact of the structure of the litigation system on outcomes and the relationships of the legal with other social systems. Galanter’s essay, as all work, reflects its times. “Haves” was written in an era of liberal reform. Courts and legislatures were expanding individual rights. Legislatures funded legal services programs. Civil rights and consumer protection statutes provided that some of those who won cases could recover attorneys’ fees. Law was thought to be a prime catalyst for social change. Thus, Galanter ends on an optimistic note by considering how legal reform could expand the advantages of repeat playing to individuals so that they can effectively vindicate their rights. Times change. The goals became the decrease of governmental power and entitlements, increased personal responsibility, and a reduction in the regulation of wealth and property in favor of greater reliance on the market. Individual rights liberalism has been strongly challenged by civic republicanism and similar communitarian perspectives. There may have been an overemphasis on a “rights strategy” and the efficacy of rights in securing social change. Yet whatever its limits, a structure of rights is often a necessary component of change. In the United States, these rights, and judicial protection for them, are being steadily eroded by a spate of Supreme Court decisions. On the other hand, the worldwide growth of democracy and the spread of constitutionalism and multinational judicial structures outside the United States seem to be leading to a greater emphasis on rights and their protection by courts.


The Rule of Law and the Litigation Process The Paradox of Losing by Winning Catherine Albiston

Litigation is a process rather than a choice between two alternatives. Courts intervene in this process not only by encouraging settlement but also through intermediate decisions that may not entirely resolve a case. Indeed, although most cases settle, many do so after some sort of court intervention. These points of intervention, like strategic settlement, also present opportunities to shape the developing law. The ways in which the litigation process and party-driven biases together might affect the evolving law have not been explored, however. It should also be recognized that not all “law” is created in the same manner. Although Galanter’s (1974) argument may make sense for judicially created commonlaw rules, his proposition deserves a closer look in the context of social reform legislation designed to address a social problem or protect the interests of the disadvantaged. Arguably, these remedial statutes strengthen the position of one-shot players (OS) relative to repeat players by transferring the rule advantage to the one-shot player. Thus, through one transaction, legislation may overcome the incremental legal advantages accumulated through strategic settlement behavior. Accordingly, at least in the early actions brought under a social reform statute, one might expect one-shot players to hold their own against repeat players. On the other hand, legislation granting a new substantive right represents both the end of a long political struggle and the beginning of the battle for meaning in the courts. The ultimate scope and power of these statutes depend not only on their language, but also on opinions generated by the common-law process of the judicial determination of rights in individual disputes. This interpretation process presents another opportunity for repeat players to “play for the rules” and influence the ultimate meaning of a statute. In this article, I explore the litigation process in the context of employment litigation regarding the rights conferred by a federal employment statute, the Family and Medical Leave Act of 1993 (FMLA). I examine the pattern of adjudicated outcomes in published federal court opinions in the five years following the statute’s enactment. I look at the entire process of litigation, rather than focusing on outcomes in only one rule-making opportunity, such as appellate opinions. In addition, I examine the Abridged from Law & Society Review 33, no. 4 (1999): 869–910.




early published opinions regarding a single individual right, nationally recognized, at both the trial and appellate level, rather than comparing appellate opinions regarding disputes in diverse jurisdictions under many different laws. By doing so, I examine Galanter’s claims where one would most expect the law to protect the one-shot player: cases arising under a remedial statute granting individual rights. I conclude that the perceived failure of remedial statutes to bring about social change flows in part from how the litigation process systematically obscures the substantive success of a new law. Although people may experience both success in litigation and significant social change as a result of a new civil right, this progress remains largely invisible in the common-law interpretation of that right. Over time, strategic settlement and the litigation process produce judicial interpretations of rights that favor repeat players’ interests, limiting the scope and effectiveness of those rights.

The Litigation Process and the Evolution of Legal Rules Published judicial opinions in litigated cases capture only a small part of what goes on with regard to a new law. Not every violation of a statute results in a written judicial opinion interpreting that law. Courts do not automatically detect violations of law; they must depend for their caseloads on wronged parties mobilizing the law and bringing disputes to a legal forum. Unrecognized violations never reach a legal forum. Even individuals who recognize a harm sometimes decline to sue, instead “lumping it,” or exiting from their relationship with the wrongdoer. Some disputants mobilize the law beyond the view of courts by negotiating solutions “in the shadow of the law,” with an eye toward the likely adjudicated outcome should the dispute ever reach a legal forum (Mnookin and Kornhauser 1979). What is less obvious is that even violations that reach a legal forum do not necessarily result in a judicial interpretation of the law. It is well known, although often overlooked, that only a small fraction of disputes that reach court are adjudicated. It is unlikely that adjudicated disputes are representative of all the disputes that arise under a remedial statute. [T]wo factors . . . influence the evolution of judicial interpretations of statutory rights: [(1) Strategic settlement by repeat players:] Although remedial employment statutes give the rule advantage to the employee, repeat player employers may still settle cases they expect to lose and litigate those they expect to win, ensuring that judicial interpretations of the statute occur in cases with the odds in their favor. If repeat players engage in this strategic behavior, Galanter’s analysis predicts that judicial opinions will develop a pattern in which repeat players consistently win. Public interest representation of employees may mitigate this pattern, but on balance, one would predict that over time published judicial opinions interpreting the scope and meaning of a remedial employment statute would come to favor employers.


Catherine Albiston

[(2) The nature and distribution of rule-making opportunities in the litigation process:] Litigation is not a one-time choice between trial and settlement. It is a temporally organized process with both rule-making and settlement opportunities along the way. For purposes of this article, by “rule-making opportunities” I mean points in the litigation process that may produce published judicial opinions containing substantive interpretations of a statute. That is, I assume that judges create and shape legal rules through published judicial opinions interpreting the scope of a statute and that both judges and litigants rely on those published opinions in future litigation. In an employment suit, litigation proceeds in a series of steps, many of which present rule-making opportunities. An employment lawsuit in federal court typically begins with a complaint. Motions to dismiss for failure to state a claim upon which relief may be granted are often the next step in litigation, followed by an answer. After these initial steps, the parties typically engage in a relatively long period of discovery regarding the underlying facts of the case. Toward the end of discovery, one or both parties may bring a motion for summary judgment to narrow the issues for trial or dispose of the case entirely. Should the claim survive summary judgment, the case may proceed to trial, typically a jury trial in employment disputes. During or after trial, the parties may bring a variety of trial-related motions. Once the parties receive a final judgment, the case may, but does not always, proceed to appeal. Figure 2.1 illustrates this process. Only certain points in the litigation process present opportunities for a substantive interpretation of the statute underlying the employee’s cause of action. The most common rule-making opportunities in employment disputes are motions to dismiss for failure to state a claim and motions for summary judgment. The legal standard for motions to dismiss for failure to state a claim on which relief may be granted favors plaintiffs. These motions test the legal sufficiency of the claim; the court evaluates whether the facts alleged, if true, would entitle the plaintiff Plaintiff Wins Own Motion for Summary Judgment


Motion to Dismiss

Plaintiff Wins

Defendant Wins

Summary Judgment

Defendant Wins Owns Motion for Summary Judgment

= Primary Rule-Making Opportunities (published judicial opinions interpreting the law) Figure 2.1. Rule-Making Opportunities in the Litigation Process

Trial Before Judge Only

Either Party Defeats Summary Judgment


Jury Trial with No Published Opinion



to a legal remedy. Courts construe the complaint in the light most favorable to the plaintiff, accept the factual allegations in the complaint as true, and grant the motion only if the plaintiff could prove no set of facts that would support a claim for relief. This plaintiff-friendly standard suggests that employees should win most motions to dismiss in employment cases. Defendant employers, however, are unlikely to bring these motions in every case. [R]ather than routinely filing a motion to dismiss, employers may bring these motions more often in weak cases suffering from legal defects that cannot be cured. Judges’ decisions about publishing opinions also may affect how the law develops. Judges may be more inclined to publish their opinions when they grant motions to dismiss than when they deny them because they believe that granting a motion to dismiss carries more precedential value than a routine denial. Given these factors, one would predict (1) that rulings on motions to dismiss would be some of the first published opinions regarding a new law, (2) a tendency for defendants to prevail in those published opinions, and (3) fewer motions to dismiss than motions for summary judgment in the published body of case law interpreting a new statute. Summary judgment allows courts to resolve cases without the expense of trial where the undisputed facts show that one party is entitled to judgment. Summary judgment permits piecemeal resolution of the case, such as establishing liability without determining damages, but may also dispose of the case entirely and thus become an appealable final judgment. Parties often bring summary judgment motions in federal employment cases to narrow the issues for trial or avoid trial altogether. Of all the rule-making opportunities in the litigation process, appeals are the most important because published appellate decisions bind lower courts within the appellate court’s jurisdiction. Appeals are not automatic. They must be actively “mobilized,” and only losing parties may do so. The decision to appeal provides another opportunity for strategic behavior to influence the development of law.

The Family and Medical Leave Act The Family and Medical Leave Act of 1993  .  .  . provides up to 12 weeks of unpaid leave per year for certain employees to care for a seriously ill family member, the employee’s own serious illness, or the birth and/or care of a new child. The law requires employers to hold an employee’s job, or one like it, open for the employee during his or her leave and to continue to pay the employee’s health care premiums during the leave to the same extent the premiums were paid before the leave. An employee’s use of leave may not be the basis for any negative employment action, such as demotion, discipline, or termination. Although the FMLA essentially creates an employment benefit, it is structured as an individual right, enforceable through a private right of action or through an action by the secretary of labor. The data presented are drawn from published judicial opinions interpreting the FMLA in the first five years after the statute was enacted. . . . 221 trial-level opinions


Catherine Albiston

and 36 appellate opinions were coded on a number of factors, including their procedural posture, the gender of the plaintiff, whether the opinion was published in official reporters, the prevailing party, the date of the opinion, amicus curiae participation in the matter, and public interest or government representation of the plaintiff.

Results and Discussion [O]f FMLA cases at the district court level that were published in the first five years after the statute was enacted . . . the most frequent procedural posture was summary judgment, which constituted about half the published opinions. Motions to dismiss were the next most common published opinions. As predicted, in the published opinions, employers prevailed much more often than employees when the employer was the only moving party on summary judgment; employers won 76% of their own motions for summary judgment. Where both parties brought motions for summary judgment, however, employers prevailed only 50% of the time. Outcomes on cross motions may be more balanced because those cases in which employees also brought summary judgment motions were stronger claims. Published opinions on employers’ motions to dismiss for failure to state a claim show a similar pattern. Employers prevailed two to one over employees in these opinions. Once again, “prevailing” was coded only on the FMLA cause of action. Despite the dominance of employer success, given the theory that employers would only bring motions to dismiss where they were likely to win, it is somewhat surprising that so many employees defeated motions to dismiss. Closer examination revealed that, in many cases, the employer’s motion to dismiss encompassed not only the employee’s FMLA claim but also other causes of action in the lawsuit. Therefore, employers may have evaluated the chances of success of the motions to dismiss with reference to other causes of action and simply added the FMLA claim because they were bringing the motion anyway. As predicted, appeals were relatively rare and took time to work their way through the courts. Only 36 of these 257 published opinions were appeals. In general, appellate courts tend to uphold trial-level decisions. Employees were the appellants in every published appellate opinion except two, and employees seldom succeeded on appeal. Employers prevailed in approximately 86% of published appellate opinions. These data are consistent with Galanter’s argument that repeat players play for the rules; that is, repeat player employers settle cases they are likely to lose, and litigate cases they are likely to win. Indeed, the incentive to engage in this behavior may be greater at the beginning of the life of a statute where almost every dispute raises a question of first impression. In addition, perhaps the most important insight is what is not represented in published judicial interpretations of the law: settlement and jury verdicts. That employers win in most published opinions does not necessarily mean that they prevail in most cases despite the protections of the remedial statute.



Galanter suggests that public interest representation or participation of amicus curiae representing the interests of one-shot players may ameliorate the advantage repeat players enjoy in shaping the law. Public interest representation was very rare in this group of cases, however. In only seven published opinions did either a public interest organization or the Department of Labor represent the employee. The relative dearth of public interest participation in published judicial opinions may reflect public interest activities outside the judicial forum. For example, the Department of Labor accepts and resolves complaints regarding violations of the FMLA. As of June 1998, the department had received 12,633 complaints from employees and found violations of the FMLA in 7,499, or nearly 60%. The department successfully resolved 88% of complaints in which it found a violation of the FMLA, obtaining $11,772,607 in damages from employers. A few results are striking about the Department of Labor complaint data. First, the figures reported by the Department of Labor suggest that more disputes arise regarding the FMLA than the limited number that reach the federal courts. Indeed, many may not reach court because the department resolves them. Second, the department found violations in 60% of cases, compared with the plaintiff success rate of approximately 22% in the case law, suggesting that employees may mobilize the law and win at least some remedy more often than the case law suggests. Third, the average damage award for the 88% of violations that the department resolved is approximately $1,800, suggesting that administrative complaints address disputes over small damages, although aggregate figures include disputes that vary in value. [P]ublished judicial interpretations of the statute favor repeat player employers because published opinions may not reflect much of what a statutory right accomplishes. For example, unproblematic compliance with the remedial statute is nowhere represented in these judicial opinions because it does not create a dispute. In addition, the common ways to succeed in an employment dispute after surviving dispositive motions—settlement and trial—do not commonly produce published opinions. Also, some cases settle before reaching any rule-making opportunity or even before reaching court. Thus, by “winning”—either by obtaining a settlement or winning a jury trial—employees render their own experiences invisible to the judicial determination of rights, which may eventually erode the power of the remedial statute. Parties evaluate the strength of their positions by taking into account published interpretations of the law. Once a sufficient body of authority supporting an employer-friendly interpretation of the law develops, even plaintiffs with strong cases may have difficulty overcoming the weight of authority against them. Interpretations unfavorable to employees may cause lawyers to decline to take these cases and cause plaintiffs to settle their cases for less. If these circumstances arise, the scope of rights created by a remedial statute may be slowly narrowed and curtailed.

22 Catherine Albiston

The Rule of Law and the Paradox of Losing by Winning The paradox of losing by winning . . . is that the experiences of individuals who win through settlement, trial, or other legally invisible means are not reflected in the judicial determination of rights. Even if rights mobilization creates benefits for some individuals, the coordinating power of rights adjudication is not equally available to both parties. Plaintiffs and defendants in employment rights litigation do not have the same procedural opportunities to win in the published judicial determination of rights. Courts, as passive institutions, depend on the private mobilization of rights to create both caseloads and rule-making opportunities. Consequently, when repeat player defendants settle cases they are likely to lose, judicial determinations of rights are based on a selective group of weaker cases. Courts’ published opinions do not reflect disputes that eventually settle or result in jury verdicts, nor do they show the benefit of rights in everyday life. At least in employment litigation, the rule-making opportunities in the litigation process magnify this effect by concentrating published judicial determinations of rights in motions where dispositive outcomes occur primarily when employers win: motions to dismiss and summary judgment motions. Although this point is significant, it is important not to over-emphasize the formal law. Courts interpret the law, but what the law will mean flows from the interpretation and transformation of law in ordinary, everyday interactions. Nevertheless formal law remains relevant to social change and everyday life. Judicial decisions are important signposts about the meaning of rights; they do more than resolve the disputes of parties. Through adjudication, courts communicate the scope and moral force of remedial statutes. By deciding disputes, courts specify what constitutes compliance with the law and induce compliance from parties and organizations that may never appear in court. For example, employers may evaluate their compliance with the FMLA according to courts’ enforcement of employees’ rights to leave. If FMLA claims reported in judicial opinions rarely succeed, employers may make fewer efforts to comply with the law. In addition, published opinions in which employers consistently win may create an employer-friendly standard for compliance with the law. Published judicial opinions also affect private ordering through negotiation. Legal rules establish each party’s bargaining endowments in negotiations by indicating the likely outcome should negotiations fail. If published judicial interpretations of the FMLA favor employers, employers will enjoy an advantage in negotiations by having more legal authority to support their position and arguments. In contrast, little information exists about average settlements or jury awards in similar cases, short of the attorney’s own experiences, because these outcomes are difficult to track. The influence of the litigation process on published authority may also affect the future mobilization of rights. Published opinions showing successful claims may encourage wronged individuals to “name” their injury and claim a remedy or may energize a social movement (Felstiner et al. 1980–81). Conversely, published opinions documenting unsuccessful claims may cause potential plaintiffs to conclude that success is unlikely and therefore forgo their claims. Published judicial opinions in losing



cases may curtail plaintiffs’ access to legal representation because attorneys, particularly those who take cases on contingency, decide that those claims are too financially risky to undertake. Thus, the invisibility of successful claims may diminish the mobilization of employment civil rights. A steady parade of rulings against employees may also undermine the moral authority of the underlying right itself because laws have constitutive as well as instrumental influence in society. Judicial interpretations enter a dynamic exchange in which law shapes the routines of everyday life and in turn is informed and transformed by everyday categories and routines. Without being specifically invoked or even explicitly considered, law may shape everyday thoughts and actions. It may change the way social interactions take place and are perceived without any explicit awareness of the legal underpinnings of this change. Finally, legal recognition and validation of rights communicate normative judgments about the underlying rights themselves and those who claim them. When the public face of adjudication shows primarily employer wins, judges and citizens may come to believe that the dubious claims reflected in published opinions accurately depict the underlying nature of all rights claims under a statute and that most claims lack merit. If the litigation process systematically excludes information about both violations and successful mobilization of rights from the judicial determination of rights, this information has only limited opportunity to affect future mobilization, compliance, and negotiation. Over time, this dynamic may curtail the capacity of the law to produce social change by inhibiting mobilization, requiring little for compliance, reducing the settlements negotiated in the shadow of the law, and limiting the favorable legal authority available to employees in future disputes and thus curtailing their likelihood of success. Once this process restricts the scope and meaning of statutory rights, the law’s capacity to reshape social relations may become similarly confined.


The Good Case Decisions to Litigate at the World Trade Organization J o se ph A . C o n t i

This article examines the decision to initiate litigation in the dispute settlement mechanism of the World Trade Organization (WTO). Prior empirical research has focused on determinants of participation in WTO disputing but without full consideration of the social processes by which the decision to litigate is made. To the extent that these processes have been subject to study, scholars have presumed that initiation of a formal WTO dispute results from a cost-benefit analysis, and they have conceived of dispute initiation as a way to force “renegotiation” of a trade relationship, eliminate inefficiency caused by protectionist trade policies, and yield outcomes congruent with the quest to maximize national income. This approach strongly presumes the stability of preferences over time and across contexts, and that the decision to litigate originates primarily out of structural relationships, such as the volume of trade and diversity of trade partners, type of political regime, gross domestic product, or litigation capacity. While recent efforts have sought to incorporate political dynamics into the study of WTO litigation, the empirical literature on WTO dispute settlement is fundamentally dominated by the presumption of market-based rationales. In contrast, this article adopts a sociolegal approach to understanding the practice of international law-in-action and critiques the market rationality of prior analyses. I argue for a socially based understanding of rational action that attends to the specific social context in which a decision is made . . . [and] the social bases of rationality in the decision to initiate disputes at the WTO through identification of what participants in the dispute settlement system described as a “good case.” This can take on different meanings depending on the facts of the trade grievance, the participants involved, and the political context. Its multiple meanings stem from uncertainties derived from the structure of the WTO dispute settlement system, most notably the close relationship between legal and diplomatic modes of engagement. Taken as a whole, the overlapping and flexible meanings of the good case provide a set of motives for transforming a trade grievance into a WTO dispute. This approach situates rational decisionmaking in WTO legal proceedings in larger organizational, professional, and institutional contexts that reveal the interplay of interpersonal Abridged from Law & Society Review 42, no. 1 (2008): 145–82.




relations, organizational settings, political context, formal law, and cultural meanings that produce the practice of international law. Through invocation of elements of the good case, all members may behave rationally in the context of initiating a WTO dispute. But the meanings authorized by these motives lead to very different expectations about what litigation may likely produce and, in turn, which actions make sense. Where the economically powerful may choose to litigate for full legal victory and compliance, weaker members may choose to litigate for symbolic or communicative purposes decoupled from strong expectations of compliance. Understood in this larger context, the rationality of the decision to litigate subsumes and legitimates significant inequalities between member nations.

The WTO Trading System The dispute settlement process of the WTO is governed by the Dispute Settlement Understanding (DSU) and can be divided into three phases: (1) a consultative phase, where a dispute is formally announced and the parties are required to engage in diplomatic dialogue, before progressing to (2) the adjudication phase, where WTO review panels make determinations about member nations’ trade practices, and (3) an implementation phase, where the dispute settlement process focuses on appropriate implementation, enforcement, and compensation. This article focuses on the decision to “claim” a trade grievance as a legal problem and transform it into a formal WTO dispute. WTO dispute settlement is at best “quasi-juridical” (Pauwelyn 2000: 337–42). That is, the mobilization of WTO law is almost always accompanied by the possibility of recourse to diplomatic modes of engagement. This is an intentional feature of the dispute system and legacy of the GATT [General Agreement on Tariffs and Trade, which the WTO replaced]. It is meant to promote the settlement of disputes, rather than exact punishments, and to do it without threatening its members’ sovereignty. In drafting the Uruguay Round Agreement [that established the WTO], negotiators utilized the “constructive ambiguity” of treaty language to build consensus around rules without specifying their precise meaning (Petersmann 2005: 128). As a result, member nations have increasingly used the dispute settlement mechanism, rather than negotiations, to obtain clarification of their WTO obligations. At the same time, panels and the Appellate Body formally lack the ability to establish precedent, as this is deemed to undermine the right of member nations to negotiate their international obligations.

The Good Case as Motivated Social Action Felstiner et al. (1980–81) have examined motive and rationality in the context of civil law. The perception of a grievance—the understanding of an event as injurious— and the assignment of blame invoke sets of motives and provoke certain kinds of action. The eventual resolution of that grievance requires contest, negotiation, persuasion, and perhaps litigation over conflicting sets of motive. In these situations,


J o se ph A . C o n t i

motive is shaped by ideas about the “nature, function and operation” (Trubek 1984: 592) of the law and legal institutions held by the aggrieved party and their reference groups. Such “agents of transformation” (Felstiner et al. 1980–81) provide information and assign meaning to the grievance and potential actions, including seeking redress through formal legal institutions; they help define the terms by which any given action can be judged as “rational.” As Felstiner et al. argue, the reification of disputes by institutions, which “reduc[e] them to records,” obscures the unstable and subjective manner by which people assign meaning to specific actions and chart further courses (1980–81: 631). In contrast, a motivational understanding of the decision to litigate permits its examination as a social phenomenon formulated through meanings, though perhaps unstable and subjective, available in particular social situations. Where Felstiner et al. (1980–81) and Sarat and Felstiner (1988, 1995) emphasize legal consciousness in the processes through which motives in disputing emerge, Galanter (1974) focuses on structural relationships between parties and the dispute settlement institution. He highlights the impact of experience and unequal resources on parties’ motives, strategies, and goals in litigation. Repeat players enjoy many advantages, including greater access to resources, familiarity with the dispute institution’s rules and practices, lower start-up costs, and informal relationships with agents of the institution. As a result, repeat players have the strategic option of “playing for the rules” and investing in the shaping of jurisprudence. One-shotters, in contrast, lack these advantages, are less able to identify a “good” case, and are more likely to enter litigation without the strategic ability to affect the ongoing development of law. The structural position of parties in relation to the operation of legal institutions shape which sets of motive appear rational, credible, and legitimate. Similar to the context of civil law, the good case constitutes the complex of meanings that accompany mobilization of WTO law and the transformation of a trade grievance into a formal trade dispute. The process by which a trade grievance is identified as “good” reflects contextual constraints, such as the ability to marshal resources; personal, professional, and organizational goals; and routine knowledge of formal and informal legal mechanisms generated through experience. Taken together, the good case is the set of motives that constitute the rationality of the context in which the decision to litigate is made. The good case depends on context and, as that context changes, so does the meaning of the good case and the motive for litigation. Those disputes that are not good cases will generally not be litigated (with some significant exceptions), WTO law will not be directly mobilized, and the aggrieved parties will have to look to alternative forums. The situation of the WTO as an international forum of states, the specific structures of its dispute settlement system, and the intertwining of law and politics in its procedures distinguishes the set of motives available to actors in the WTO from other legal contexts. These features of the WTO system, however, also create significant uncertainty about the outcomes of a given dispute. Similar to Galanter’s linking of motives and strategies in litigation to the structural relationship of parties to the dispute institution, distinctive features of WTO litigation make different strategies and goals available to WTO members, depending on their relationship to the dispute



settlement process. In this way, uncertainties attached to litigation at the WTO create flexible and overlapping meanings of the good case, which in turn shape which grievances are transformed into a dispute and why.

Interviews and Analysis The data for this article consist of 30 semi-structured interviews conducted with influential WTO actors between May 2004 and May 2006 in four locations: Chicago; Washington, D.C.; Brussels, Belgium; and Geneva, Switzerland. Ten of the interviews were with senior legal counsel or ambassadors working in trade ministries of three major Northern trading countries and five nations of the global South. Interviewees also included a former Appellate Body chair, WTO Secretariat staff in several divisions, private attorneys, and a former ambassador to the WTO working as a private consultant. Three initial participants were identified through personal networks and the remaining through purposive, “snowball” sampling and by directly contacting trade ministries and law firms. One interview was conducted over the phone and another through a series of e-mail exchanges; the rest were conducted in person, generally lasting between one hour and one hour and a half.

Uncertainties in WTO Litigation The meaning of a good case at the WTO is flexible because of significant uncertainties associated with litigating in the dispute settlement process. Interviewees identified several types of uncertainty that are manifestations of four features of the WTO: the newness of the system, the organizational and legal structure of the dispute system, the WTO as an intergovernmental agreement, and the persistence of inequality between states. The emergent and developing character of WTO jurisprudence combined with the lack of formal authority to establish precedent creates considerable uncertainty related to determining what arguments must be made to construct a good legal case. The organization of the panel review stage of the dispute settlement system produces uncertainty about how a case should be pleaded. While the Appellate Body is composed of jurists who serve a set term on the bench, each panel is assembled on an ad hoc basis for each dispute. The DSU permits the parties involved in the dispute to nominate potential panelists, with the final panel composition requiring the consent of both parties. As a result, the ad hoc system favors newer and less experienced panelists who may or may not have legal training or expertise in the relevant details of the dispute. Even if the panelists have legal training, they tend to come from diverse legal traditions and have little or no experience adjudicating legal matters, particularly diplomatic texts that contain inherent ambiguities. The ability of counsel to identify a good case is limited by [the intergovernmental treaty basis] of the WTO dispute settlement system that makes ensuring compliance


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with WTO rulings difficult. A Washington, D.C.–based private attorney suggested that the potential for protracted litigation to not result in any significant compliance threatens to undermine WTO dispute settlement altogether: But probably the biggest problem is implementation. You win cases and  .  .  . there’s a good chance you will not get any kind of successful implementation to satisfy your client. That will continue to be a problem, and will ultimately undermine the system unless something is done to fix it.

This comment also points to the tenuous meaning of winning in the context of WTO litigation. A legal victory may not in any automatic way translate into compliance. Another direct result of the stateless context of the WTO is the quasi-juridical relationship between legal procedures and diplomatic engagement prior to and throughout the formal processes of dispute settlement. The rules of dispute settlement offer numerous opportunities to return to diplomatic engagement. This is evidenced in several features of the process, including mandatory consultation between the parties prior to a panel review, the release of preliminary panel findings to the parties before the review is made final, and the difficulty of securing complete compliance with panel and appellate body determinations. The quasi-juridical character of the dispute system and the influence of diplomatic norms on litigation disrupt expectations that WTO panels should operate according to formal legal principles. The challenge of identifying a good case posed by the quasi-juridical character of the WTO dispute settlement system is made more difficult by unequal distribution of legal and human resources between member nations. This feature of WTO dispute settlement is a product of historic inequities in the international system and affects nearly all activity at the WTO. Participating in the dispute settlement system is a time-consuming and sophisticated legal and political task, requiring teams of lawyers, economists, diplomats, and politicians. Inequality operates through various institutional forms including the direct costs of litigation, the requisite expertise and experience, and administrative and bureaucratic infrastructure to support the process. The fees for a single case can reach into the millions of dollars. The ability to identify the good case is in part a reflection of the steep learning curve associated with litigation at the WTO. Those members who do not regularly participate are at a disadvantage in identifying whether a case is good. International inequality also affects the capacity to dispute through the character of public–private linkages over trade issues. Effective participation at the WTO is enhanced through close cooperation between industry and government because industry can provide evidentiary data as well as subsidize the cost of attorneys and other personnel. For instance, while a country may contract with a private law firm to assist in litigation, the decision to do so presumes the prior identification of a legal argument. Where countries lack domestic international trade professionals and a competent private sector, the identification of a trade grievance in the first place may pose difficulty. This is why lack of legal capacity is not merely reducible to a question of economic resources: utilization of legal services requires the experience, understanding, and orientation—besides the money—to perceive a grievance as a legal problem and then mobilize the law.



Larger trading nations are more likely to have a specialized government unit for handling international trade affairs. As a former Appellate Body panelist reported, the ability to identify a good case corresponds to those delegations that are “more socialized” into the WTO legal system. This socialization includes expansive internal structures for evaluating the possibilities of WTO jurisprudence: The difference between let’s say the United States and the EU on the one hand, Japan also, is that they have very elaborate internal structures dealing only with these issues. So they are more socialized in that they can make greater prediction.  .  .  . [A]s you know, the proceedings are confidential . . . and about half the membership has never participated in a litigation so they don’t know how it works because unless you are a [third] party . . . intervening in the case because there is a systemic issue which is of interest to you, you don’t know how it works.

An American official put it more bluntly: “We’re big and we’re rich and we can hire lots of people to do the dirty work.” As a result, more-affluent members of the WTO system are more inclined to take advantage of WTO law and more likely to engage the process fully prepared, with a well-developed sense of what can be achieved. Uncertainties are pervasive and significant in the WTO dispute settlement system. But these are not experienced in the same way by each delegation, which has different capacities to effectively adapt to them. Member nations may be forced to abandon litigation or to not initiate litigation at all. A Geneva-based private attorney, when asked about whether some members may be inhibited from participating in dispute settlement, responded: Yes, countries are inhibited because they don’t have the resources, they don’t have the understanding, they don’t have the personnel, they have higher priorities. But, they are also inhibited because they know that there are political sensitivities; they’re getting something in return, that . . . they might get more aid if they keep their position, if they’re quiet.

Meanings of the Good Case One of several important adaptations to uncertainty within dispute settlement is flexibility in the meaning of the good case that enables and encourages participants to adopt more modest, alternative goals that may be something considerably less than complete legal victory and full compliance. A trade issue alone may not be sufficient by itself for a case to go forward and instead must align with other situational features. The “damage” of a trade problem must be of an appropriate magnitude or match with various goals and priorities of the government. An otherwise good case that is of relatively small economic or political impact may not be litigated unless it furthers some goal of the government. On the other hand, a dispute with enormous economic or political stakes may be avoided due to risks associated with disputing. At the same time, the dispute where a legal victory is

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most likely may not be litigated. Instead, according to respondents, “best cases” are more likely to result in mutually agreed settlements prior to the completion of litigation. [R]espondents identified six elements of the good case. By themselves or together, these are the meanings that motivate the initiation of a formal WTO dispute. All-Out Victory The first type of good case is one that involves a substantive trade issue that can be argued in reference to WTO jurisprudence to produce a favorable judgment on critical issues and that will trigger full compliance with WTO rulings. Relative Gain Another type of good case is one that is expected to result in relative gains through partial compliance. It is based on the expectation of a legal victory on critical issues that will, in turn, pressure the losing government to make substantive changes to its trade policies. But the complaining member realizes that the prospects of full compliance may be low. Any member nation, by virtue of its national sovereignty, retains the formal right to not comply with WTO rulings. In practice, however, noncompliance is less of an option for poorer states that are more vulnerable not only to WTO mechanisms for inducing compliance, but also to extralegal pressures, such as withdrawal of foreign aid. The United States, followed by the EC, are the most frequent noncompliers with panel and Appellate Body rulings. Sending a Message A case may be worth pursuing because it communicates a message. The type of message and the intended target may vary. A good case may facilitate the “education” of the citizenry and political leadership of a trading partner about a trade problem and create pressure for action through visibility in mass media. This is especially important when expectations of compliance are weak. A second form of disputing-as-communication intends to trigger diplomatic action to resolve the grievance. Referencing scholarship on civil litigation, this has been termed negotiating in “the shadow of the law” (Mnookin and Kornhauser 1979). The initiation of a formal complaint can thus contribute to an informal settlement. Complementary Goals A good case furthers government goals and priorities in areas beyond the dispute at hand. National governments may prioritize issues such as intellectual property rights or obtaining greater market access. Disputes will be chosen that further those goals. More dramatic, a good case may be intended to affect ongoing WTO negotiations. In



this scenario, a dispute will be chosen with the intent of altering the bargaining position of the participants by clarifying obligations under the WTO treaties. Systemic Issues Although informants reported that disputes are rarely initiated for purely systemic reasons, concern for shaping WTO jurisprudence and the procedures of the dispute system are factors considered in combination with substantive trade issues. A U.S. official reported that systemic disputes are unlikely unless vigorously pushed by private industry. Shame Avoidance At the WTO, legal counsels appear particularly attuned to the risks of political embarrassment for themselves and their superiors and, as a result, will only take good cases to litigation. This concern underpins all other considerations of a good case. Informants reported that embarrassment is attached to losing a case among Genevabased officials. Other informants reported a sense of national shame associated with high-profile losses at the WTO.

Discussion and Conclusion Litigating for legal victory and full compliance is the highest standard of the good case, and disputes that most closely approximate this tend not to be litigated. At the same time, this motive is less frequently available to members from developing countries. Like Galanter’s typology of repeat players and one-shotters, unequal access to human and legal resources, unequal experience with the processes of the dispute settlement system, and lower expectations of compliance shift the good case toward emphasis on relative gain, symbolic victory, and communicative power, particularly among the “have-nots.” In these instances, it is no longer rational to expect the “benefits” of litigation to exceed the “costs” in terms of economic gain. While each participant confronts uncertainties in WTO litigation, the flexibility of the good case covers over differential capacities of unequal members to confront them. The good case provides a basis for action while institutionalizing inequality in the practice of international trade law. The multiple elements subsumed in the good case thus demarcate the limits of rational behavior in disputing for each member of the WTO. In this fashion, the good case reflects the hegemony of the economically powerful in WTO proceedings, who have the greatest latitude for rational behavior, while legitimating the dispute settlement mechanism as a formally fair and open forum for settling disputes for all.

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Convictability and Discordant Locales Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking Lisa Frohmann

What categories do prosecutors use to assess sexual assault cases? What are the ramifications of using case convictability as a decisionmaking standard? How do race, class, and gender become salient in prosecutors’ decisions? In this article I attempt to answer these questions by analyzing ethnographic data about prosecutors’ work in a sexual assault unit. Previous research has demonstrated how descriptive practices have been used in legal processing. Person descriptions have been used to constitute moral character for purposes of negotiating plea bargains; to determine an organizationally relevant response to a juvenile’s behavior; and to assess the credibility of a rape account. Place descriptions have been invoked by police and prosecutors to identify trouble and suspicion, suspects, and motives and identity. Activity descriptions have been used to identify persons and infer moral character. A little-explored dimension of categorization work is the interplay of place and person descriptions. An examination of prosecutors’ discourse on case convictability (the likelihood of a guilty verdict at trial) reveals how when deputy district attorneys (DDAs) categorize both victims, defendants, jurors, and their communities and the location of crime incidents, they are constructing discordant locales. By ascribing stereotypical characteristics of a neighborhood to victims, defendants, and jurors, prosecutors construct distinct groups with different cultures who live in geographically separate spaces and have different schemes under which they interpret the everyday world. In other words, “discordant locales” refers to a clash of cultures represented by these disparate locations. These descriptions are informed by prosecutors’ knowledge of the sociogeographic landscape, cultural images of race and class, and work-related knowledge. I use “discordant locales” as a shorthand for a discourse practice used by prosecutors to justify case rejection. Discordant locales create good organizational reasons for case rejection. When jurors, victims, and defendants are from discordant locales, prosecutors anticipate that jurors will misunderstand the victim’s actions and misinterpret case facts and thus lower the probability of guilty verdicts at trial. This is highly problematic for Abridged from Law & Society Review 31, no. 3 (1997): 531–66.



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prosecutors because convictability is the organizational standard on which prosecutors file cases. If cases are unconvictable, prosecutors have to bear the consequences. An analysis of prosecutors’ decisionmaking discourse refines our understanding of the use of moral character by legal agents. In addition to providing an example of how place and person descriptions work together in legal settings to construct moral character, prosecutors’ construction of places as discordant locales is significant because it acknowledges multiple sets of normative behaviors against which prosecutors can evaluate standards of moral character. This differs from how scholars traditionally have viewed moral character, as a moral or normative standard from which some people deviate. It opens up the possibility of more than one cultural norm. Recognition of more than one normative standard has the potential to decenter dominant social relations, depending on how prosecutors use their knowledge when constructing discordant locales. For prosecutors, these multiple normative standards are connected to race and class, and the prosecutors routinely focus on gender norms because the cases being considered are sexual assault cases. Thus this study examines how race, class, and gender are made salient within the organizational structure and logic of case convictability.

Data and Method This research is drawn from a larger ethnographic field study on the prosecution of sexual assault crimes by deputy district attorneys in special sexual assault units. The data for this study were collected through participant observation. For eight months I observed case processing in the sexual assault unit of the prosecutor’s office in Center Heights, one of 11 branch offices in a major metropolitan area on the West Coast. During this time I observed 40 case processings. Four attorneys staff this unit. The cases brought to the Center Heights courthouse are drawn from five police jurisdictions, which cover predominantly poor black and Latino communities. Jury panels are drawn from a 20-mile radius of the courthouse. The communities that fall within this circumference are segregated by race and class and range from poor to very wealthy. Potential jurors are randomly chosen from voter registration, driver’s license, and welfare roll lists. I recorded my observations of the interactions in detailed field notes. I was not permitted to tape any of the case proceedings; thus I attempted to record the talk and interactions I observed as accurately as possible. I supplemented my field notes with open-ended interviews with the prosecutors and detectives in the unit. These interviews were recorded. The data for this study are drawn from a mixture of observations and interviews.

The Context of Prosecutorial Case Filing Decisions Case filing is the point when prosecutors decide which cases will go on for adjudication by the courts. The standard used by prosecutors for this decision is case



convictability—the likelihood that a jury would return a guilty verdict. Typically, prosecutors assess cases as unconvictable and they are rejected from the system. The concern of district attorneys with convictability is shaped by the organizational policies and procedures of the prosecutor’s office and the courts. The decisions are made within the organizational context of the prosecutor’s office, the institutional structure of the court system, and the political context of the community. Prosecutors’ decisions have implications for promotion possibilities, transfers, their own reputations as well as the reputation of their unit, and the branch office. Concern with convictability creates a “downstream orientation” in prosecutorial decisionmaking—that is, an anticipation and consideration of how others (i.e., jury and defense) will interpret and respond to a case. During complaint filing, prosecutors orient particularly toward “the jury,” an ideal type formed from a composite of their previous trial experience, discussions with other prosecutors, and prosecutors’ general cultural knowledge about the norms and mores around sexuality, heterosexual relations, and violence. This orientation takes two forms. First, prosecutors anticipate defense arguments to assess whether they can construct a credible account of the incident for the jury. Second, prosecutors invoke anticipated jurors’ interpretations of case “facts” as the standard of convictability. Thus, the ability to construct a credible narrative for the jury and the jurors’ ability to understand what happened from the victim’s viewpoint are pivotal in prosecutors’ assessment of case convictability. A prosecutor’s anticipated inability to get a guilty verdict from a jury is a legitimate justification for case rejection.

Constructing Discordant Locale Categorizations Prosecutors presume that we live in a segregated society and that since the occupants of these segregated spaces have distinct cultures, they use different interpretive frames for making sense of and organizing the world. Living in segregated space means people have limited first-hand knowledge of people who are different from themselves. When people have limited contact, they form “place images” of other communities and their residents to make sense of their lives. The [following] example is a passage from an interview, with comments to the detective after the interview. The DDA’s questions and comment reveal two categorical descriptions: the Center Heights community and the victim. The DDA intimates the power of these different descriptions when considering how the jury, who reside outside of Center Heights, may interpret the situation.

DDA: So you left LaDonna’s house about 1:15–1:20 a.m. and you got to the corner about 4:30–5:00 a.m. Do you think the jury will believe that? You walked a 30-minute mile—six miles equals three hours. Right on the money. I’ve got to figure this out because if we establish something way off the mark, the defense will use that to say you are lying. Will these people be willing to come in and corroborate you?


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Detective Palmer told you what the defendant said: same old story. “You were all out there selling your bodies for cocaine and you agreed to sex in exchange for cocaine he gave you.” At the hospital if they tested the blood for any drugs would they find any? Witness: No. DDA: Drugs stay in the system a long time. Cocaine for 72 hours. PCP for two weeks and marijuana for two days. Will we find cocaine? Witness: No. DDA: That is something else we can use to rebut the defense lie that you were out selling your body for drugs.

Throughout this interview, the DDA tried to “make sure” that the defense could not successfully argue that the women were trading sex for drugs. When the women left, the DDA asked the detective: What do you think? I kept them here a little longer to make sure they were playing it straight. They didn’t have the money to get home any other way so they have to walk long distances. People might wonder, but when you are less fortunate . . . 

The DDA initially categorizes the victim as a prostitute by quoting the defendant’s account of events: “You were out there selling your bodies for cocaine and you agreed to sex in exchange for cocaine he gave you.” Preceding the quote with the statement “same old story” suggests that this defense is often used against rape allegations in Center Heights; it is a form of “discursive hegemony” that makes prostitution activity appear “natural” and “normal” for Center Heights. The DDA plays this categorization of women in Center Heights off an alternative description of women in Center Heights as poor, well-meaning individuals who, because of their lack of resources, are often victimized. The “people” whom the prosecutor suggests might wonder about the victim’s behavior are the jurors. The jurors, we know from previous characterizations, are typically described as white and wealthy. The victims and suspects are black and Latino and poor. By expressing concern that the jury will view the victim’s behavior through the lens of drugs and prostitution rather than poverty, he is suggesting that jurors categorize Center Heights as a drug- and crime-ridden community. By anticipating the jurors’ viewpoints, he constitutes discordant locales, two places where residents have distinct categorizations schemes for making sense of the victim’s behavior and describing her moral character.

Voice and the Construction of Discordant Locale Categories Prosecutors voice the positions of others to evaluate actions, actors, events, and locations and as a strategy for producing legitimate, authoritative, and persuasive accounts of case decisions. Through expressing others’ positions, the DDA displays the



complexity of case processing, giving their accounts a measure of professionalism and authority. They also demonstrate objectivity by taking account of various participants’ standpoints (i.e., victims, jurors, and court officials). These multiple positions are a key element in the construction of discordant locales; by shifting between the perspectives of jurors, victims, residents, defense attorneys, and prosecutors, the DDA voices the discordant categorization schemes. [I]n the next account, the DDA’s categorization of discordant locales is constituted through her understanding of the jury. Here the prosecutor plays the role of knowledgeable outsider and cultural translator. The DDA is telling me about a preliminary hearing she just finished at which some of the suspects who had not yet been arrested appeared in the courtroom to watch the hearing. When the victim walked into the room, she identified her other attackers and police arrested them immediately. The DDA is telling the story of the case. I asked her why she didn’t say anything about it [a previous rape]. She said it would get back to her girlfriend and they would know who did it and they would kill her. I asked how come she reported this rape. She said that there were three girls on the corner with her, and they [the attackers] wouldn’t know which one told. It is such a different world. I go home to Oakdale Beach and watch the sunset, and they are here thinking about survival. I don’t think someone is going to shoot me or rape me. I have to understand the way of life here or I’ll never be able to convince a jury. If I don’t, they won’t understand why she was out at 5 a.m., and why she didn’t report the first rape but she did report the second.

The DDA categorized the locations as discordant locales by contrasting her concerns at night with those of victims who live in Center Heights. On a continuum of familiarity with life in Center Heights, the DDA positions herself as more knowledgeable than jurors. By acknowledging her limited understanding of life in Center Heights, she locates jurors farther out on the continuum, increasing the cultural distance between places, bolstering the categorization of discordant locales. Her knowledge of life from the standpoint of the victim suggests the outsiders are the naive jurors. Her role as cultural translator recognizes that although jurors may be outsiders, their ability to understand the victim’s standpoint is crucial to case convictability. Prosecutors construct Center Heights and “Other” areas where jurors live as discordant locales. Through the interplay of person and place descriptions they characterize these areas as distinct geographically, racially, economically, and culturally. Categorizing these places and persons as discordant locales provides an organizationally sound justification for case processing decisions. In accounting for cases, prosecutors voice the standpoints of different court players. Although they temporarily decenter the mainstream standpoint of the jurors by adopting that of Center Heights residents, this decentering becomes a technique for demonstrating the prosecutor’s own objectivity. The prosecutor’s shifts in alignment allow the DDA to display consideration of a case’s complexity and the power of organizational logic. It is a mechanism for the prosecutor to express frustration at


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jurors’ ignorance, the prosecutor’s position vis-à-vis the victim and prosecution, and to display one’s position as an organizational player. The prosecutor’s ability to shift standpoints shows the potential for change if legal agents can act from those nonhegemonic standpoints. It also demonstrates the power of institutional logic that they do not act from other standpoints.

Conclusion Discordant locales are prosecutors’ categorizations of places and the people associated with them that they encounter in the work of case prosecution. DDAs’ categorizations are informed by their typifications of area activities, residents and their lifestyles, and cultural images and ideologies of specific race/class groups. Mapped onto the place descriptions are sets of attitudes, behaviors, values, and norms that are attributed to those who reside in, use, or pass through these areas. Through the interaction of place and person descriptions, prosecutors constitute the moral character of persons and place. Categorization of places as discordant locales is a justification for case rejection. Prosecutors maintain that different race and class groups create separate cultures, which in turn have distinct categorization schemes for understanding the social world. These differences, according to prosecutors, lead to misinterpretations by jurors of victims that would result in “not guilty” verdicts if the cases were forwarded. The organizational concern with convictability renders discordant locales a legitimate and frequent unofficial justification for case rejection. This would not appear on official, written accounts of case rejection; reasons given there typically would be “victim’s unwillingness to cooperate” and “insufficient evidence.” Given the convictability standard, what are the implications of discordant locale categorizations for the legal system? In addition to possible individual miscarriages of justice that occur when prosecutors decide not to pursue cases that they believe to have factual basis, I suggest that the pattern of their decisions has wider sociolegal significance. An intended consequence is the evaluation of cases as convictable or unconvictable, winnowing “weak” cases out of the system. This is seen as organizationally necessary, to relieve the overburdened court system of cases that would use up resources and lead “nowhere.” An unintended consequence of prosecutors’ decisions is to legitimize specific ideologies of race and class and contribute to the reproduction of social inequality in the criminal justice system. Whether prosecutors are recognizing the force and reality of the moral judgments of middle-class white jurors or adopting these judgments as the basis for their decisions, certain people are more likely to be excluded from justice. As Merry (1990) argues, participation in the justice system is part of a sense of entitlement. Whatever the paradoxes of victims actually using the legal system, when some victims are routinely dismissed because their stories do not fit the hegemonic group’s image of a real victim, that widens the division between those who have access to the law and those who do not. Furthermore, prosecutors using this justification reinforce the idea that social arrangements organized around race and class are “natural,” which in turn reifies the differences and misunderstandings.



For those working to create a just legal system, these data suggest that changes in organizational policies may be necessary to expand and equalize citizens’ access to the law. Reformulating how the convictability standard is used through policy changes would be one possible intervention. For example, allowing prosecutors to file a certain percentage of believable but risky cases without regard to convictability without negative consequences may open the boundaries of what prosecutors conceive as convictable. In addition, giving anticipated jurors’ norms and values less weight at the filing process might also bring a greater variety of cases into the system. If prosecutors dealt with actual juries to prosecute more of these cases, they might learn how to win the cases, hence expanding what is perceived as “convictable.” Examining how prosecutors construct discordant locales reveals the depth at which we must look to see how race, class, and gender systems are constituted and maintained through legal decisionmaking. The ideologies that constitute the social order are not just perpetuated by overt or purposeful activity. Micro-level interpretive practices that may not appear to have race-, class-, or gender-biased intentions nevertheless contribute to the institutionalization of these biases. Prosecutorial accounts can unintentionally perpetuate historical social relations by contextualizing prosecution decisions in cultural representations of places and people. We live in a culture that has been built on an unequal distribution of economic and political resources by race, class, and gender. Drawing on these frameworks of interpretation to make sense of case facts and to justify case decisions continues the current social order and its division of resources and influences.


The Reconstitution of Law in Local Settings Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime Ryk en Grat tet and Valerie Jen n ess

One of the more enduring assumptions about how law works (or should work) in society—held by many social scientists and citizens alike—is that legal rules announced from a ‘‘high level’’ (i.e., executive officials, legislatures, and courts) are thereafter simply invoked by a group of officials at a ‘‘lower level’’ in order to arrest, prohibit, or compel some sort of action. Of course, a significant body of work in the social sciences demonstrates that lawmakers’, administrators’, and citizens’ aspiration for the rules to dictate enforcement action is seldom fulfilled. The reasons given for this vary. Some argue that extralegal actors, such as business and interest groups, influence or even ‘‘capture’’ particular agencies; somewhat differently, others depict enforcement as a bargaining process in which enforcement officials and extralegal actors negotiate to determine the meaning of the law and compliance. Other scholars highlight the discretion of regulatory officials in deciding what gets enforced and how enforcement takes place. Such discretion permits ideological factors, operational philosophies within an agency, bureaucratic conflicts, and the career goals of officials to shape the ways rules get defined and enforced. As a result, local law departs from higher law because the discretion inherent in the enforcement process permits it. Yet another set of arguments focus on the ambiguity of the law, emphasizing that most rules fail to specify direct instructions for their enforcement. The ambiguous nature of the law requires officials within the system to engage in ‘‘rulemaking’’ to determine exactly how to apply it, the effect of which is to elaborate and, in some cases, narrow the scope of the law’s application. Taken together, these arguments envision the misalignment between higher law and local law as a function of extralegal actors who insert themselves into the enforcement process, the type and extent of discretion officials possess, and the degree of uncertainty that surrounds legal rules. [W]e are less interested in explaining the specific choices any given agency makes in an effort to respond to a legislative mandate and more interested in how an entire field of organizations responds to a larger public policy mandate. In other words, our unit of Abridged from Law & Society Review 39, no. 4 (2005): 893–942.




analysis is the field of organizations, not the law enforcement agency. How local agencies respond to new enforcement [requires] understanding the professional, bureaucratic, and political networks within which enforcement agencies are situated. In this article, we focus on the entire network of actors and organizations that have shaped how California’s local law enforcement agencies are responding to the mandate to enforce hate crime laws. We use the case of hate crime policing in California law enforcement agencies to identify how extralegal influences, discretion, and statutory ambiguity affect the reception, interpretation, and ultimately the reconstitution of law at the local level. [S]tate criminal law enforcement systems in America comprise largely autonomous local agencies that have substantial discretion to define law and pursue particular enforcement agendas; yet local police departments often exhibit strong tendencies toward conformity with other peer agencies, as well as prevailing state, national, and international standards and ideals about policing. The latter, what Crank (1994, 2003) calls the ‘‘institutionalized myths’’ of policing, originate from the activities of various types of ‘‘standards-bearers.’’ Standards-bearers are collective actors that distill and promote conceptions of law, such as state and federal agencies, professional associations, and ‘‘leader’’ organizations that are understood to have ‘‘model’’ policies or approaches. Some of these standards-bearers are official governmental sources, and others are nonstate entities that provide information to law enforcement agencies and are thus well-positioned to influence law enforcement policy and practice. Combined, these groups constitute what organizational sociologists call an interorganizational field. In this study, a population of organizations (i.e., local law enforcement agencies) and the key producers of meanings (i.e., standards-bearers) comprise the interorganizational field. The presence of a diverse array of standards-bearers in the environment of local law enforcement agencies means that the ambiguity of law is characterized . . . by a surplus of legal meanings that provides different models for local agencies to use. A legal surplus exists when there are multiple legitimate expressions of the same rule. This results when groups promote divergent interpretations of the law. Each expression highlights different aspects of the law, reflects the interests of its proponent(s), and offers distinct ways of envisioning the basic nature of the problem to be addressed by the law. A legal surplus also characterizes a situation in which the law itself presents alternative expressions of the rule (e.g., multiple statutes defining the same phenomena). In either case, the ambiguity of ‘‘what the law is’’ derives not from a debt of legal meaning but more from a surplus of possible interpretations. Under such conditions, agencies in a state criminal law system select the model they deem most desirable from a range of options. This aggregate pattern is revealed in a patchwork of definitions employed by agencies across the state.

Theoretical Considerations Although elected politicians, interest groups, social movement organizations, and the media are almost exclusively focused on the dynamics and drama that precede the moment when a policy proposal becomes transformed into a statute—as if it is the moment


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of greatest consequence—legislative enactment is really just the beginning, rather than the end, of a larger lawmaking process. A law enacted by a legislature or pronounced by a court inevitably undergoes a translation or filtering process as it moves down to the officials charged with applying the abstract law to concrete, ‘‘real-life’’ circumstances. Actuarial processes are reflected when the development of policy is heavily influenced by the privileging of data collection over other organizational concerns, including following the strict ‘‘letter of the law’’ or conceding to the types of external influences discussed above. Actuarial thinking prioritizes the efficient management of personnel and populations based on a statistically grounded risk assessment of the problem at hand; as a result, administrators prioritize collecting aggregate statistics and performance measures about a particular problem as the key to determining how the agency should respond. The rise of actuarial practices in law enforcement has led to the displacement of other disciplinary practices related to the allocation and operation of power in society and the organizations that comprise it. In policing, the older disciplinary practices are reflected in the professional knowledge about how to effectively capture criminals and prevent crime and are rooted in the assumption that behavior can be normalized through crime control policies. Actuarial practices, on the other hand, derive from the assumption that crime is relatively unpreventable and thus must be managed in a way to reduce risks and optimize collective security.

Research Site, Data, and Method of Analysis We chose California as the site for this research because the state legislature has been at the forefront of hate crime policymaking for the last two decades and, as a result, the State of California arguably has the most comprehensive, complex, and demanding system of hate crime laws in the nation. In addition, California accounts for nearly one-quarter of the reported hate crimes nationwide, and it has a large and vibrant community of social movement and professional groups focused on the issue. At the same time, local agencies in California exhibit variation in their responses to hate crime law that reflect the range of variation found in other states. Some agencies have responded with detailed policies that reveal considerable effort and thought, others have adopted a more minimalist approach, and many have not adopted anything. California lawmakers have defined hate crime in different ways. With this in mind, the data described below provide a view of how these laws have been received and interpreted by local law enforcement agencies throughout the state. To understand how California law enforcement agencies have articulated the meaning of hate crime, we gathered three types of data. First, we solicited ‘‘general orders’’ from all the municipal police and county sheriff ’s departments in the State of California. General orders are local agency policies that provide the departmental definition of hate crime and, in so doing, signal to the community in general and officers in particular what counts as a hate crime and who counts as a hate crime victim. In addition, these policies specify an agency’s protocol for



dealing with hate crime incidents and responding to the needs of hate crime victims. Because officers rarely consult the criminal code directly, such documents are particularly salient. As the lieutenant in charge of a bias crime unit in a large city in Northern California explained, ‘‘Officers themselves generally don’t deal with the penal code.” Thus, general orders form an important part of the local understanding of the law. In 1999, and then again in 2000 and 2001, we requested the policies pertaining to hate crime from all 339 municipal police and all 58 sheriff ’s agencies in the State of California. Of the 397 police and sheriff ’s agencies in the state, 39 did not to respond to the three successive requests for policies, constituting a 90% response rate. One hundred sixty-one (40.6%) of the police and sheriff ’s agencies in California informed us that they do not have a hate crime policy. One hundred ninety-seven (49.6%) of the 397 police and sheriff ’s agencies provided us with a copy of their policy. The majority of the policies begin with a ‘‘purpose’’ section that describes the purpose of the policy. All the policies for sheriff ’s departments and all but one of the policies for municipal police departments detail the official procedures officers are to follow when responding to potential hate crime, including if and how the officer must provide victim services and engage with the community as part of enforcing the law. Most important for our analysis, the vast majority of the policies provide a definition of hate crime. While the procedures described in the policy are important, the definition is where the behavior regulated by the state laws is articulated in local terms, and, as such, it most directly expresses what the local agency thinks the law covers. Therefore, we coded these definitions along a variety of dimensions, including the specific provisions relating to the victim’s status (e.g., race, religion, sexual orientation), perpetrator’s conduct, perpetrator’s motivation, and targeted entity (e.g., person, property, business, family), as well as the verbiage used to describe each. These components are essential to any definition of hate crime. Based on these dimensions, we derived ‘‘model’’ definitions. Agencies adhering to the same model possess definitions that substantially share conceptions of conduct, motivation, status, target, and phrasing. To situate agency policies in a larger context and set the stage for an analysis of the development of a surplus of legal meaning and the reconstitution of law at the local level, we also collected data on other highly visible forms of hate crime policy and definitions emanating from the interorganizational field in which California law enforcement agencies reside. Specifically, we collected archival data from organizations and agencies that have developed and circulated hate crime definitions, policies, and procedures designed to facilitate awareness of bias-motivated violence, define the parameters of hate crime, and direct law enforcement agents on how best to operationalize and enforce hate crime law. In particular, we tracked the way each of these entities defines hate crime, when it first put forth a definition of hate crime for public consumption (usually via a publication), and how the entity’s definition does or does not circulate among other players in the interorganizational field. These data enabled us to develop what we call a ‘‘genealogy of law’’ that focuses on definitions of legal constructs in particular (i.e., definitions of hate crime). That is, these data combine to provide a comprehensive empirical record of the key producers


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and the point of origin and destination of each and every policy and attendant definition of hate crime contained therein. As such, the policies enabled us to determine how agencies are—and in some cases are not—attentive to different sources of legal meaning. Finally, in addition to the many informal discussions we held with officers as we collected the policies, we conducted formal in-depth interviews with 13 law enforcement officials from nine law enforcement agencies throughout the state in order to understand how hate crime policies are written, circulated, and used both inside the departments and in the public realm more generally. As such, we selected interview subjects who had formal roles in creating or authorizing policies, subjects involved in policing hate crime, and a handful of rank-and-file officers to understand how they orient to the policies in the course of doing their job.

The Development of a Surplus of Legal Meaning in the Interorganizational Field Local law enforcement agencies in the United States are surrounded by an array of collective actors that supply models for policing particular kinds of problems. Other police departments, community organizations, national associations, social movements, professional groups, state agencies, and the federal government all contribute to a surplus of meaning attached to the term hate crime. [A]gencies wanting to create a hate crime policy confront a situation in which many options are available. That is, a surplus of legal meaning is attached to the term hate crime, and contributors to that surplus come in various forms (see Figure 5.1). State law provides one source for defining hate crime, but other viable definitions are available from official governmental sources, such as the FBI; yet other definitions of hate crime are promoted by professional, social movement, and community groups. No doubt, this environment possesses ambiguity about which kind of policy is best. Professional Groups (e.g., National Organization of Black Law Enforcement Executives)

Social Movements (e.g., Anti-Defamation League)

Federal and State Sponsors (e.g., FBI, California Bureau of Criminal Statistics)

Early Prototypes (e.g., Boston Police Department)

Local Agency

Peer Agencies (e.g., Los Angeles Police Department)

Community Groups (e.g., Los Angeles Hate Crime Task Force) Figure 5.1. Influences on Local Agency Policies



Notably, however, the ambiguity does not result from just the inherent vagueness of the statutes alone; instead, the situation is filled with ambiguity because there are so many ways of defining hate crime from a variety of legitimate sources. This is the environment local law enforcement agencies in California face as they develop a policy on hate crime enforcement. Therefore, the next question is: what kinds of policies do agencies across an organizational field develop in the context of this surplus of law? And related, what influences the adoption of some types of policy and not others?

Characteristics of Hate Crime Policies Our analysis of local policy reveals immense variation in the definitions of hate crime found in local law enforcement agencies’ policies. This variation is apparent via an examination of how hate crime policy (1) recognizes some status provisions and not others, (2) circumscribes conduct that qualifies, and (3) identifies the elements of motivation required for the law to be invoked. The definitions of hate crime vary in the policies in terms of the categories of persons covered—what we refer to as its “status provisions”  .  .  . such as race, religion, ethnicity, ancestry, sexual orientation, gender, disability, and so on. As Table 5.1 shows, the most frequently included status provisions in law enforcement hate crime policies are race, religion, and sexual orientation. More than 90% of definitions reference these groups. The next most frequently used status provisions are disability and gender, as well as some of the alternative ways of referencing race and ethnicity. These are included in roughly two-thirds of the policies. The least frequently included categories are age, political affiliation, and position in a labor dispute. The selective use of status provisions means that some agencies do not explicitly recognize some acts as hate crime in their policy. For example, when gender or disability is not included, officers are not made aware or reminded that those categories are also part of the law. This might play a role in the underreporting of hate crime incidents and the underenforcement of hate crime law. [T]he policies also vary in terms of the conduct they describe as covered by hate crime law. One hundred eleven agencies (56%) have policies that describe the scope of activities that officers must respond to as “any act of bias,” whether criminal or not. This extremely broad focus is frequently accompanied by a purposeful delineation between hate crimes and hate incidents, but other times it is not. An officer in a Professional Standards unit reported in an interview that his department wanted officers to track and respond to noncriminal incidents involving bias because such incidents can escalate into criminal offenses at a later point and because identification of potential “hot spots” of bias-related activity can help officers correctly classify subsequent cases. However, such a broad definition of the behavior clearly goes beyond what the criminal statutes require. As is the case with status provisions, some of these conduct descriptions are overinclusive relative to the state statutes, and others are underinclusive. Thus, if the policies were followed closely, we would expect to see variation in terms of the types of incidents that are classified as hate crime.

Table 5.1 Distribution of Status, Conduct, and Motivation Provisions in Local Law Enforcement Policies in California









Sexual orientation



National origin



















Political affiliation



Position in labor dispute





Conduct Any act of bias Intimidation, harassment, force, or threat of force



Criminal acts



Acts designed to induce fear or emotional suffering



Prejudiced bias incidents



Victim associate



Mixed motives



Perceived status of victim






Appearance of bias



Motivated by hatred (rather than bias)




Note: Percentages are based upon the total number of agencies that have orders. N=197



The definitions also vary in the way motivations are depicted. All of the policies define hate crime in ways that direct officers to assess certain mental states. One hundred twenty-three agencies (62%) use definitions that explicitly direct officers to recognize circumstances involving “mixed motives” as a hate crime. When an agency’s definition of hate crime includes acts motivated “in whole or in part” by bias, it is explicitly instructing officers not to dismiss a case as a hate crime just because there may be other motives for the incident. Such phrasing also does not require bias to be the “primary” motivation for the crime. Nor does it indicate a “but for” standard (i.e., but for the element of bias the crime would not have happened), which is used in some departments.

Model Definitions of Hate Crime Despite the patterns of variation described above, commonalities do emerge across agencies. Of the 197 agencies that have written policies, 176 (90%) rely on one of eight definitional models. All but one of the models . . . were traced to sources in our genealogy of law. Accordingly, each model was available in the interorganizational field and was a candidate for adoption by any given California law enforcement agency. Nineteen agencies (10%) created their own “anomalous” definition, and two agencies have policies that do not define hate crime. Thus, most agencies rely on a definition created somewhere else or by someone else. This is significant evidence that agencies do not exercise their autonomy in purely particularistic ways. Rather, how an agency selects a definition is a product of several different kinds of processes. To understand the role these influences play in policy design requires a closer examination of the content of definitions of hate crime found in policies that gain enough traction in the interorganizational field to be copied by a handful of agencies—what we call “model policies.” By model we do not mean to imply preferable or ideal; rather, we merely mean to imply that the policy type was replicated across the organizational field. With 65 adherents (33%), the most common approach is to use the definition of hate crime contained in the California Law Enforcement Training statute. In fact, 28 of the 65 policies were written by a single Southern California attorney and then sold to agencies. This “boilerplate” approach to policy design has resulted in the development and circulation of a single policy among some California agencies. These policies, bearing the label “338” on the top left-hand corner of the policy, represent an “off-the-shelf ” solution sold to agencies that chose to purchase a policy that promises to withstand litigation, rather than develop their own. Even when an agency has conformed to a model definition, it may add or subtract wording. Most of the 65 agencies that use the California Law Enforcement Training statute, including those that purchased the 338s, have modified the definition in small ways. Sometimes words are added or omitted in order to tailor the model to the specific needs of the agency. Other times, fragments of text added by one agency are copied into the policy of another. Akin to a genetic mutation, alterations to definitions are then replicated by subsequent agencies that may themselves add or subtract text. Mutations then compound over successive generations, even while core parts


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of the definition remain unchanged. The result is that agencies have policies that are standardized in important ways but also contain differences. In light of this, the final question is as follows: what influences how simultaneous standardization and particularization unfold?

Mechanisms Influencing the Proliferation and Content of Policy Design [A]gencies are attentive to different sources of legal meaning-making. Consistent with the theoretical concerns discussed earlier, sometimes an agency copies another agency, sometimes it takes its cue from a professional or social movement organization, and sometimes it copies the language contained in a statute. [S]ome agencies are subject to peer influence, what DiMaggio and Powell (1983) call mimetic pressure. As a police chief of a mid-sized department in Southern California explained in an interview, quite often police chiefs consult with each other, in person and over e-mail, on policy matters. He stated: Well, you probably know that in law enforcement not much is new, certainly not policy. There’s not a lot of original thought. The California police chiefs have an e-mail system. We talk with each other. When things come up we ask each other “What are you doing? Does it work?” We shop for policies. We get our policies from all over. Once we find one we like, we modify it in ways that we think will meet the specific needs of the community.

These communications often result in agencies copying each other. In addition to mimetic pressure, normative influences on policy design are also present. Normative pressure comes from extralegal influences, in this case, from professional bodies, social movement organizations, and community groups. As for the influence of more localized community groups, the Los Angeles County Hate Crime Task Force developed a model policy in 1988. The approach to defining hate crime contained in this policy has since been appropriated by local law enforcement agencies in California. Interviews with officers with administrative responsibilities that include developing agency policy revealed a commitment to communicating with visible sectors of the community to secure input on policy design. For example, a captain in a police department in an affluent, mid-sized beach community in Southern California proudly declared that she routinely looks to “organized groups that speak for the types of folks we police” to get ideas about “how best to proceed, especially on something new.” As a result, her agency’s hate crime policy quite literally reproduces prose found in guidelines promoted by the Los Angeles County Hate Crime Task Force. Finally, . . . there is evidence of actuarial pressure. That is, agencies are drawn to policies that conform closely to the demands of the crime data collection system. Specifically, 29 agencies adopted a definition of hate crime that originated in the California Bureau of Criminal Justice. Later, that same definition surfaced in the state’s hate crime data collection law. It was reinforced in a 1994 information bulletin sent to all agencies in the state by then Attorney General Lungren ordering the collection of hate crime data.



Some departments explicitly elevate reporting as the top concern. For example, a small city in Southern California titles its policy “Hate Crime Reporting” and defines the purpose of its policy as follows: To establish a reporting policy and procedure pursuant to California Penal Code Section 13023, wherein all local law enforcement agencies are to report to the Department of Justice such information that may be required relative to any criminal acts or attempted criminal acts to cause physical injury, emotional suffering, or property damage where there is reasonable cause to believe that the crime was motivated, in whole or in part, by the victim’s race, ethnicity, religion, sexual orientation, or physical or mental disability.

In short, for a large number of agencies, having a definition that guides the counting of hate crime—as opposed to a definition based upon the criminal law or a professional source—is the paramount concern. Although normative processes born of professional standards-bearers . . . exercise most of the influence over how local law enforcement agencies define hate crime, actuarial pressures are the next most common, followed closely by mimetic pressure. In sum, in the interorganizational field under study, normative, mimetic, and actuarial processes operate simultaneously to produce a patchwork pattern of legal definitions across the state. As a result, the end product, policy design in this case, is not purely reflected in a homogenization or standardization of organizational approach. Rather, the processes of both homogenization and differentiation characterize how policy design unfolds in this densely packed organizational field containing a surplus of meaning.

Discussion Our findings reveal that agency-level policies are not idiosyncratic in the ways one would expect if agencies were indeed maximizing their discretion. The use of model definitions indicates that agencies mostly conform to standardized approaches. Indeed, 90% of the agencies use one of  .  .  . eight definitional models.  .  .  . [H]owever, most agencies have modified the phrasing in minor ways. Despite the preponderance of models, the policies examined here have not become more standardized over time. California agencies used several different definitions from the beginning and, at present, continue to rely on a highly varied set of approaches. Thus, despite the clustering pattern, substantial cross-agency variation in the meaning of hate crime remains. Moreover, such variation has potentially important consequences. For example, presuming the policies have one of their intended effects (i.e., to influence officer behavior), an agency that does not include gender in its definition fails to signal to its officers that such cases can be classified as hate crime. Gender-based hate crime would be ignored or, more likely, classified as some other kind of crime. An agency that does not acknowledge that hate crime law applies to circumstances where mixed motives exist similarly fails to orient officers to recognize some situations as hate


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crime. Definitional differences, in turn, may contribute to observed differences in official statistics across similar types of jurisdictions. Because district attorneys rely heavily on the recommended charges, evidence, and classification work by police officers, underinclusive definitions can result in some jurisdictions being less likely to pursue hate crime prosecutions. To the extent that the policies reflect and impose the operational definition of hate crime for the department, they can have quite dramatic effects on how hate crime law is translated into practice at the local level. [T]he legal meaning-making that takes place within an agency cannot be understood by looking at the agency in isolation from the larger interorganizational field in which it exists. To do so ignores how definitional activities surrounding hate crime law occur through a process of what the organizational theorist Karl Weick (1995) calls “collective sensemaking.” Collective sensemaking is collective precisely because it occurs at the level of the interorganizational field (i.e., the system of policing represented in Figure 5.1) rather than at the level of the individual agency. Collective legal sensemaking occurs through the interaction of organizations with one another and with other promoters of standards. Understanding how local law enforcement agencies exercise discretion at the organizational level by creating agency policy requires orienting to police and sheriff ’s departments as sites of legal meaning-making. That is, they are places where statutory law is given meaning for the benefit of officers as well as other audiences to whom the agency is oriented (e.g., professional standards-bearers, community groups, data collection agencies). Criminal statutes frequently serve as reference points for legal meaning-making at the agency level, but statutes do not determine those local meanings. When writing policies, individual agencies filter and reconstitute legal meaning, rather than merely appropriate it in a one-to-one fashion. In other words, statutory law casts a shadow over policing, but it does not operate as an algorithm that dictates or determines what police organizations or officers are to do at the agency level. Further research needs to address the consequences of such a situation for actual police behavior. After all, local policing policies are no more self-executing than statutes.


Popular Constitutionalism’s Hard When You’re Not Very Popular Why the ACLU Turned to Courts E mi ly Z ac ki n

In recent years, prominent constitutional law scholars have made arguments for greater popular participation in determinations about the U.S. Constitution’s meaning. Kramer and Tushnet have offered two of the most prominent arguments for restricting the court’s role in determining the meaning of the Constitution. Kramer emphasizes popular conclusions about the Constitution, while Tushnet stresses congressional deliberation. Yet these authors share the central conviction that courts’ active involvement in constitutional politics discourages and distorts the participation of nonjudicial actors (Tushnet 1999; Kramer 2004). The main thrust of both arguments is that American politics would be more democratic, and therefore better, if courts played an extremely limited role in determining how Americans understand and apply their fundamental law. Thus these authors argue for the normative desirability not only of constitutional debate outside the courts, but also of constitutionalism without the courts. [B]y focusing on why the American Civil Liberties Union (ACLU) might seek to use courts, this study uncovers (and challenges) some of the empirical assumptions upon which Tushnet’s and Kramer’s normative arguments rest. I do not wish to argue that popular deliberation or pluralist politics are normatively undesirable, or even empirically impossible. Instead, I want to examine organizations’ move to litigation in light of the historical and institutional realities that these groups may face. Historical circumstances may place groups squarely on the wrong side of public opinion and, as a consequence, they may find that political institutions other than courts are effectively unavailable as avenues for advancing their political arguments. The ACLU’s history is instructive in comparing such political realities to the empirical assumptions of scholars such as Tushnet and Kramer. While it is now one of the most prominent examples of a litigation-based interest group, it began its existence demonstrating a significant commitment to constitutionalism outside the courts. In fact, during the first decade of its existence, the ACLU began to litigate largely in response to its mounting unpopularity both within and without the government. Thus this case study suggests that, while constitutional activism without courts may prove successful some of the time for some groups, others will find themselves unable to Abridged from Law & Society Review 42, no. 2 (2008): 367–96.



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pursue their constitutional visions without using courts. It is certainly possible that the normative dangers of judicial review may outweigh the problems associated with the suppression of unpopular arguments, but an empirical assessment of the challenges that unpopular minorities face when they pursue constitutional change without courts as well as the role courts may play in popularizing constitutional debate provide a useful caveat to arguments opposing constitutional litigation.

Constitutionalism Outside the Courts The existence of constitutional debate outside the courts has garnered increasing scholarly attention. Tushnet (1999) advances an argument about the normative desirability of constitutional interpretation inside institutions such as Congress and the consequent undesirability of judicial review. In Tushnet’s view, the active exercise of judicial review hinders elected representatives’ abilities to deliberate about the meaning of the Constitution. Tushnet suggests that the national project to make constitutional meaning may well be better served if courts were deprived of the authority to overturn the constitutionality of legislation. At the very least, he argues, “Doing away with judicial review would have one clear effect: It would return all constitutional decision-making to the people acting politically. It would make populist constitutional law the only constitutional law there is” (1999: 154). Although Tushnet’s earlier work focused on the National Association for the Advancement of Colored People’s (NAACP) litigation campaign on behalf of minority rights, he nonetheless suggests that minority groups, such as the NAACP, both can and should advance their agendas through legislative bargaining, rather than litigative, means. Like Tushnet, Kramer is particularly disturbed by the assertion that court rulings ought to trump populist or popular constitutional interpretations. Instead of emphasizing the role of the legislature, he argues that ordinary citizens must claim the primary responsibility for interpreting their highest law. Kramer emphasizes the people’s interpretations of the Constitution, while Tushnet stresses congressional interpretations. Yet these authors share the central conviction that courts’ active involvement in politics is damaging to democracy, and therefore normatively unappealing. The main thrust of both arguments is that American politics would be more democratic, and therefore better, if courts played a much more limited role in constitutional politics. Thus they call on “the people” to both consider themselves the proper arbiters of constitutional meaning and to “take the Constitution away from the courts.”

The ACLU and Constitutionalism Outside the Courts Despite its now-famous tradition of litigation, the ACLU was founded predominantly by activists who professed and demonstrated a strong commitment to both institutional and grassroots forms of constitutionalism outside the courts. The story of the ACLU’s founding begins in 1914, when Americans began to debate the wisdom of



entry into the European war. Those who opposed participation formed a host of antiwar organizations. The most prominent of these was founded at the end of 1915 by [a] group . . . associated with well known Progressives such as Hull House founder Jane Addams and, later, Roger Baldwin, a young social worker making a name for himself in St. Louis. It adopted the name American Union Against Militarism (AUAM). Congress declared war in April 1917 and instituted a draft in May. The day after Congress passed the Selective Service Act, Baldwin began to organize a special bureau of the AUAM to defend those who would choose not to fight. From the outset, the Conscientious Objectors’ Bureau argued that draft laws were unconstitutional and, in July 1917, it expanded its mission to the wartime defense of all personal liberties, renaming itself the National Civil Liberties Bureau (NCLB). The NCLB became independent of the AUAM in October 1917 and began to distance itself from its pacifist and internationalist roots (Witt 2004: 46–48). Under Baldwin’s leadership, the organization adopted a new focus on the rights of labor rather than on conscientious objectors and renamed itself the American Civil Liberties Union (ACLU). The minutes of the ACLU’s executive committee describe its efforts to coordinate letter-writing campaigns and petitions, stage mass meetings and protests, and sponsor lecture tours by prominent liberal intellectuals. The NCLB employed many of these tactics in an effort to secure amnesty for conscientious objectors who had been jailed during the war and for those who had been jailed under the Espionage and Sedition Acts for the content of their speech. Throughout its early years, the ACLU also published a large volume of pamphlets, aimed at creating popular support for conscientious objection and the exercise of other civil liberties. This approach can be seen as an outgrowth of Progressive Era calls for popular constitutionalism. Many of the Progressive Era’s left-leaning political figures defined their views on courts in direct opposition to the Supreme Court’s famous Lochner decision [(Lochner v. New York 1905), in which the court struck down as a violation of the individual’s freedom to contract a New York statue that capped the workday of bakers at 10 hours], concluding that democratic majorities ought to determine the Constitution’s meaning in light of societal needs rather than individual freedoms. In addition to promoting popular activism, the ACLU also made constitutional arguments to elected representatives. This version of constitutionalism outside the courts can also be understood in light of Progressive politics. Progressives argued that democratically elected governments should play a strong role in regulating industry and improving the living conditions of the urban poor. Consequently, they stressed the social benefits of strong and interventionist government and attempted to work alongside government officials in their social improvement projects. While Progressives are known for their admiration of social science and expertise, the general antipathy of judges to the protective legislation that Progressives valued made some of the organization’s founders quite leery of courts and judges. Accordingly, the ACLU attempted to make constitutional arguments in Congress and to work alongside government agencies as counselors and allies. Throughout its early years, the ACLU continued negotiating with government officials about the meaning of civil liberties.


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From its inception, the NCLB was also active in the courts. Affiliated attorneys defended conscientious objectors at their trials and before their draft boards. Yet . . . it is clear that, in the first years of its existence, the NCLB/ACLU placed far greater emphasis on extrajudicial methods of interpreting and applying the Constitution than it did on judicial methods.

The ACLU’s Embrace of Litigation Despite its early commitment to both institutional and grassroots forms of constitutionalism outside the courts, over the course of the 1920s, the ACLU placed increasing emphasis on the value of the same legal, procedural protections and judicial interpretations that its founders had once derided. [T]his study of the ACLU’s tactics not only illustrates a shift in thinking about liberties, but also describes a liberal shift in thinking about, and seeking support from, courts and judges. The domestic politics of World War I not only convinced liberals of the importance of individual liberties, but also convinced some liberals of the importance of courts and judges in interpreting and enforcing constitutional guarantees of liberty. Another influence on the ACLU may have been that other left-wing organizations of this period were also beginning to employ test-case litigation, most notably the NAACP. In fact, almost from its inception in 1909, the NAACP used courts as one avenue to promote its political agenda. By 1915, the NAACP even achieved a significant legal victory at the Supreme Court level through its participation in Guinn v. United States. The case declared Oklahoma’s “grandfather clause” unconstitutional, thereby addressing electoral disenfranchisement, one of the organization’s earliest concerns. [O]ver the course of the 1920s, the ACLU’s Executive Committee used an increasing percentage of meeting time to discuss court-based tactics  .  .  . [with] a corresponding decrease in the percentage of the meeting time used to discuss tactics that involved constitutional interpretation by actors outside the courts. This transformation is evident most clearly in ACLU members’ opposition to it. [F]ounding member of the AUAM Zona Gale’s  .  .  . primary concern was with the ACLU’s defense of individual liberties at the expense of social harmony. When the end of World War I allowed the ACLU to spend less and less time defending conscientious objectors, it turned its attention to the defense of other forms of suppressed political speech. In particular, the ACLU intensified its defense of Communist rhetoric, some of which urged the need for a violent, proletarian revolution. For the antiwar Progressive Gale, the ACLU’s defense of the individual right to advocate violent revolution was simply beyond the pale. [I]n her final letter of resignation from the ACLU’s board, Gale revealed that she had tolerated, but disliked, the ACLU’s move toward the use of court-based tactics. She wrote, “I have even been willing to pass over the need to use the courts—which I do not use, and by which I feel one loses more than one gains, even when anything is gained.” By the end of 1924  .  .  . the ACLU began to intentionally generate test cases. For instance, Baldwin explained his arrest to the New York Times by telling the paper, “[i]t [is] part of the tactics of [my] organization to defy efforts to prevent meetings and



thus force such cases into Court.” By 1927, 10 years after the NCLB was founded as a “clearinghouse for complaints of injustice,” the ACLU’s annual report stated, “It should be remembered that we do not take up all cases involving civil rights. We are not a general defense organization. The Union tackles test cases involving laws and regulations, demonstrations in places of conflict, proceedings against lawless officials, public protests and propaganda against repression and intolerance in any form.” This description of tactics reveals the ACLU’s eventual reliance not only on legal defense, but also on the intentional challenge of laws through the careful selection of test cases. Thus by the late 1920s, not only was the ACLU still active in courts, but this activity had also become central to its mission, which had become the realization of legal change.

Why Litigate? Though some of the literature on interest group litigation suggests that groups begin to litigate when they begin to believe judges will rule in their favor, the ACLU’s leadership shifted the organization’s resources to the courts before they believed it would win cases. Despite the fact that the ACLU did not accomplish its first real Supreme Court victories until 1931, it had already devoted most of its energies to a strategy of litigation. Though the ACLU’s shift in tactics cannot be attributed to a change in the courts, it can be explained in large part by the failure of its original strategies. Throughout the 1920s, the ACLU was primarily committed to defending the speech of decidedly unpopular figures, such as labor leaders, socialists, and communists. These defendants did not engender broad public support for their civil liberties and made it extremely difficult for the ACLU to pursue grassroots, activist strategies. During World War I, Baldwin attempted to organize a series of mass meetings to rally public opinion behind freedom of conscience, but he found some auditorium managers unwilling to rent space to him when they discovered the topic of his meetings. On occasion, the ACLU was also denied the use of public venues because of its association with radicals. When ACLU leaders were allowed to speak, their affiliations with extremists were often held up as their sole cause for existence. One particularly expressive Washington Post columnist wrote [in 1924], “[The ACLU] is a part of the malignant movement which has been extant for some years for sapping the spirit of American patriotism and poisoning our national life with Sovietism and international Communism.  .  .  . They clamor like howling dervishes for the right to promote every anarchistic fad that has oozed out of the ferment of old world corruption.” Even more discouraging to the practice of direct, popular constitutionalism were the extremely violent responses that radicals faced while trying to enact their vision of the Constitution through public meetings, speeches, and strikes. They often found themselves targets of vigilante justice perpetrated by groups such as the Ku Klux Klan and the American Legion. According to the ACLU’s estimates, more than 800 alleged radicals fell victim to mob violence between September 1920 and June 1922 alone. In light of this extraordinary hostility, it also seems foreseeable that the ACLU would


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begin to place less emphasis on popular interpretations of the Constitution while stressing the need for judges to enforce due process protections and individual rights. The ACLU’s shift to the courts was also driven by the failure of its attempts to promote its vision of the Constitution among members of the government. Though the ACLU began its existence hoping to serve as a friend and advisor to the Wilson administration during wartime, it soon found that most members of the administration desired neither the organization’s friendship nor its advice. Furthermore, although President Wilson had appointed a liberal staff to the Department of War, this staff became much less friendly to the NCLB after military intelligence agents investigated the NCLB and determined that it was encouraging draft-dodging. In his oral history, Baldwin explained, “In the First World War Years, the savage repression of dissent alienated us from government.” Given the antagonism that the Wilson administration displayed toward the ACLU, it is not surprising that the ACLU was forced to abandon its strategy of cooperating with the government.

The Empirical Assumptions Underlying Calls for Constitutionalism without Courts In order to understand the ACLU’s turn to the courts, it is necessary to understand the state as the ACLU leaders came to understand it—as an active agent with its own agenda and coercive power. Yet this view of the state is notably absent from calls to abolish judicial review. For instance, Tushnet (1999) declares that, despite the conventional wisdom that disadvantaged and insular minorities require judicial protection, he sees no reason why such minorities should not simply use conventional political bargaining to overcome their disadvantages. He suggests that disadvantaged minorities ought to identify an issue on which the majority is closely divided and offer its entire vote share to the side that agrees to meet its terms. The ACLU’s early history speaks to this suggestion. Though ACLU leaders professed and demonstrated devotion to the principle of popular constitutionalism, they found themselves unable to bargain in the way Tushnet suggests. Tushnet’s image of bargaining assumes that unpopular minorities function as well-organized political units. However, in the case of the ACLU’s early clients, the formation of such political units was exactly what the state and federal governments had outlawed through the Espionage Act and criminal syndicalism laws and punished through mail stoppages, surveillance, and office raids. Not only had the government banned the political expression of unpopular groups, but the high levels of private violence perpetrated against these groups made it difficult for them to assemble, let alone trade votes. This fly in Tushnet’s bargaining ointment highlights his assumptions about the state, as well as the empirical problems with those assumptions. The bargaining that Tushnet describes takes place within a state that appears to be an arena, one that sets the rules for political competition but never enters the fray. However, the state that the ACLU and its radical clients encountered had its own agenda, largely independent of the citizens it governed. It sought to eliminate criticism of its methods,



actions, and existence by outlawing such criticism. While an outraged citizenry might have been able to overcome this agenda, the ACLU’s clients were generally so unpopular in this period that private actors also made it difficult for them to argue their cases outside the courts. In short, it became difficult for the ACLU to motivate constitutional deliberation outside of the courts without using the courts. The ACLU discovered that litigation could facilitate the kind of grassroots movement around constitutional meanings that it was trying to spark. Advocates of court-free constitutionalism assume that constitutional litigation precludes popular interpretation of the Constitution. They are particularly rankled by ACLU-style litigation, which often relies upon courts to nullify laws passed by elected legislatures or to interpret the law in order to forbid a widespread practice. Yet many leaders of the early ACLU conceived of their court-based tactics as serving the goal of stimulating constitutional deliberation among the general public. [T]he ACLU began to employ test meetings and cases as part of a larger strategy of popular constitutionalism that included more recognizably democratic tactics, such as demonstrations and the petitioning of public officials. While judges were determining the meaning of the Constitution in a court of law, informed citizens were simultaneously determining the meaning of the Constitution in the court of public opinion. This image of dual courts suggests that litigation was not merely aimed at generating publicity, but that the publicity it generated was in the service of public deliberation and interpretation about constitutional cases. Litigation packages an abstract rights claim into a particular narrative, centered on a single incident and defendant. Such cases are made even more educative because the proceedings offer defendants (and their lawyers) an opportunity to argue for the justness of their claims. These arguments are protected when made inside a courtroom and are amplified by the media attention that court cases, particularly those before high courts, often draw. These properties help explain why the ACLU turned to litigation well before it was likely to win any notable judicial victories. Even when a judicial victory is outside the realm of possibility, test cases may secure a victory “in the court of public opinion” by dramatizing civil liberties issues. The ACLU’s transition to litigation is interesting not only because of what it can tell us about theories of constitutionalism without courts, but also because it illustrates why courts may be useful to unpopular minorities. It is important to note that the courts are by no means guaranteed to protect the rights of unpopular minorities. Yet as the ACLU discovered, even when judges decide with the majority, litigation may still aid unpopular minorities. Because courts had the power of judicial review, they provided the ACLU with an avenue for political participation when the organization found its more accustomed avenues inaccessible. No matter how unpopular it got, the ACLU could engineer test cases, and at least lower-level courts could not keep them out. This property of litigation has been noted in other contexts, most explicitly in McCann’s study (1994) of women’s pay equity struggles of the 1970s and 1980s. McCann explains that even when the courts do not serve as countermajoritarian heroes, litigation provides activists with a vehicle for challenging a firmly entrenched status quo.


Beyond Backlash Assessing the Impact of Judicial Decisions on LGBT Rights Thomas M. K e ck

Judicial decisions defending the rights of lesbian, gay, bisexual, and transgender (LGBT) persons have regularly been criticized for going too far, too fast. It is no surprise that opponents of gay rights have denounced these decisions as examples of illegitimate judicial activism, but some supporters of gay rights have also criticized them as strategically unwise. In doing so, these supporters have echoed a long-standing scholarly argument that rights-based litigation strategies are ineffective at best and counterproductive at worst. In the gay rights context, one version of this argument has been particularly prominent: even when rights advocates win in court, those victories inevitably spark a political backlash, with the voters and their elected representatives reversing the judicial decisions and enacting regressive policies that are worse than the status quo ante. A closer inspection of the actual sequence of victories and defeats for LGBT rights advocates in the United States, both in court and out, complicates this backlash narrative to a significant degree. Judicial decisions supporting LGBT rights have repeatedly fueled political countermobilization, but that has not been their only or even their most prominent effect. To the contrary, litigation has contributed in a variety of ways to expanding the rights of LGBT persons to act on their sexual identities without government interference, to be protected from invidious discrimination, and to form family relationships that are recognized by the state.

The Backlash Thesis One of the leading claims of the scholarly literature on the limits of judicial power is that unpopular judicial decisions provoke political reactions that undercut their effectiveness. This thesis has been developed most fully by Klarman, who has argued for more than a decade that the chief impact of the Supreme Court’s landmark decision in Brown v. Board of Education (1954) was to exacerbate the racist rhetoric and segregationist policies that characterized Southern politics at the time. On Klarman’s account, Brown sparked massive resistance, polarizing Southern racial politics and undermining Abridged from Law & Society Review 43, no. 1 (2009): 151–86.




the efforts of white moderates. As a result, when Southern blacks turned to direct action protest in the early 1960s, they were met with increasing violence. Toward the end of his 2004 book on civil rights, Klarman identifies same-sex marriage (SSM) litigation as one of several recent examples that fit the counterproductive pattern set by Brown. Elaborating the claim in a subsequent article, he insists that the Massachusetts high court’s landmark 2003 decision legalizing SSM met a fate similar to that which followed every other effort by judges to defend a rights claim that lacked popular support: “The most significant short-term consequence of Goodridge [v. Department of Public Health, 2003], as with Brown, may have been the political backlash that it inspired. By outpacing public opinion on issues of social reform, such rulings mobilize opponents, undercut moderates, and retard the cause they purport to advance” (Klarman 2005: 482). Like Klarman, Rosenberg is most well known for his revisionist and pessimistic account of Brown but has also advanced a similarly negative assessment of contemporary SSM litigation. Where Klarman has long emphasized the political backlash sparked by Brown, Rosenberg has generally characterized the decision as inconsequential rather than counterproductive, emphasizing that judges are usually unwilling and always unable to impose unpopular rights on the nation at large. In a revised 2008 edition of The Hollow Hope  .  .  . Rosenberg has added 80 pages of new material on SSM litigation, extensively documenting the conservative countermobilization that followed the LGBT rights movement’s state high court victories in Hawaii, Vermont, and Massachusetts. According to this backlash narrative, SSM litigators won three big cases from 1993 to 2003, but each of these judicial decisions provoked political setbacks that made things worse. The Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin reached no final judgment on the state’s discriminatory marriage laws but imposed a legal standard for justifying those laws that the state was unlikely to meet. Far from advancing the cause, however, this judicial victory produced a state constitutional amendment reversing the decision, a similar state constitutional amendment reversing a copycat judicial decision in Alaska, a federal statute declaring that the national government would not recognize SSMs and authorizing state governments to refuse such recognition as well, and statutory bans on SSM in more than 30 states by the end of 1999. The organized [LGBT rights] movement is now fully committed to the SSM campaign, but some of its most prominent scholarly supporters have continued to object on strategic grounds. Echoing the conclusions of the Rosenberg/Klarman thesis, these internal movement critics have complained that litigation leads either to judicial defeats that achieve nothing or to judicial “victories” that provoke a counterproductive backlash. Either way, litigation campaigns draw resources from alternative strategies that are likely to be more effective. A number of detailed scholarly accounts of LGBT rights litigation have advanced more optimistic (or at least more nuanced) assessments, but these works have drawn less attention than have the broad critiques of litigation. These competing assessments are rooted in competing conceptions of judicial power and historical change. If American courts are too weak to do anything helpful, then LGBT rights advocates should stop appealing to them for help. But if litigation sometimes has positive—even


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if complex—effects, then it may remain a promising avenue for pursuing policy changes whose prospects are otherwise quite limited.

Courts and Causal Mechanisms [T]here are a variety of mechanisms by which litigation and court decisions have sometimes produced meaningful change. Most directly, court orders are sometimes effectively implemented. In at least 20 states, for example, litigation led directly to the decriminalization of consensual sodomy, with a long series of state-court victories from 1990 to 2002, followed by the U.S. Supreme Court’s landmark 2003 decision in Lawrence [v. Texas]. Less directly, but no less significantly, successful instances of rights claiming often heighten expectations that further change is possible, particularly by “altering the expectations of potential activists that already apparent injustices might realistically be challenged at a particular point in time” (McCann 1994: 89). Indeed, every judicial decision expanding marriage rights for same-sex couples has inspired more couples to claim such rights. The courtroom victories in Hawaii sparked further litigation in Alaska and, even more important, political organizing followed by further litigation in Vermont. In addition to heightening expectations among supporters, legal mobilization can sometimes transform the agenda of the nation’s lawmakers as well. Before the 1993 Baehr decision, no state legislature had passed even a limited domestic partnership bill; the vast majority were unwilling even to consider the issue. But the decision had what Eskridge calls an “agenda-seizing” effect (2002: 3), fueling the efforts by advocates on both sides and drawing the broader public’s attention as well. One reason lawmakers became increasingly willing to expand partnership rights after Baehr is that the Hawaii decision immediately changed domestic partnership policies from radical, cutting-edge proposals to moderate compromises. In other words, by pushing the policy envelope, ambitious litigation can clear space for legislative progress in its wake. Asking for too much, too soon is sometimes counterproductive, but aggressive demands can also shift the spectrum of compromise in valuable ways. In this sense, every state legislature that has expanded partnership rights has done so in the shadow of the ongoing litigation campaign. The operation of this causal mechanism does not require judges to persuade or enlighten legislators who were once opposed or blinded. The mechanism simply requires judges to provide political cover for legislators to declare their support for a policy that they previously considered too great a political liability. Even when they spark substantial opposition, moreover, court decisions can change the policy status quo in ways that are difficult to reverse. [O]nce gay rights advocates have won a policy victory in the United States, the famously gridlocked American lawmaking process begins to work in their favor. Before Baker (1999) and Goodridge (2003), SSM opponents in Vermont and Massachusetts needed only to block legislative proposals to expand partnership rights, while SSM supporters had to run the gauntlet of legislating in a system of separated powers. After the decisions,



those positions were reversed. In addition to reversing the relevant veto points, these decisions immediately created a group of people with a vested interest in defending the new, legally recognized same-sex partnerships. In a variety of ways, then, judicially crafted policies can have significant self-reinforcing effects. By compelling compliance, removing barriers to legislative change, heightening expectations, forcing the issue, pushing the policy envelope, providing an excuse for sympathetic or apathetic legislators, reversing the relevant veto points, and creating new constituencies inspired to claim and defend their rights, even unpopular judicial decisions can prove difficult to dislodge. With these causal mechanisms in mind, I turn now to an examination of the broad patterns of legal and political change affecting LGBT rights from May 1993, when the Hawaii Supreme Court first threatened to legalize SSM, through November 2008. In the course of this examination, I assess the degree to which these patterns are consistent with three principal claims advanced by backlash proponents: (1) that judicial victories have regularly been followed by political defeats, (2) that the end result has been regressive policy change, and (3) that some other strategic choice would have worked better.

The Political Reaction As I have noted, backlash proponents argue that judicial victories are almost always followed by electoral setbacks. This claim is true but partial, as judicial victories are sometimes followed by electoral gains as well. The 1993 Baehr decision came down in the midst of a period of heavy use of ballot initiatives by opponents of gay rights. This strategy had succeeded in Colorado the previous year and was rapidly proliferating nationwide. The chief electoral impact of Baehr was to add SSM bans to the list of antigay policies that were regularly included in these initiatives. The fact that the Hawaii and Alaska electorates voted by significant margins to reverse pro-SSM judicial decisions was certainly a setback for the movement, as were the large number of antigay initiatives adopted at the municipal level during this period. Often overlooked are the electoral defeats of antigay initiatives in Idaho, Oregon, and Maine, but the balance is clearly negative on the whole. In Vermont, the local legislative reaction to the high court ruling was positive, but backlash proponents have emphasized the subsequent electoral setbacks that occurred. On this account, the Baker decision (1999) forced Vermont’s legislators to take a politically unacceptable position, and those legislators paid for it at the polls. As Eskridge has noted, the fall 2000 statewide elections were “conducted in significant part as a referendum on civil unions” (2002: 81), and 16 incumbent legislators who supported the civil union bill were unseated. This electoral backlash was real, but its severity should not be overstated. The state house switched hands from Democratic to Republican, and from pro–civil union to anti-, but the senate and governor’s mansion remained in the hands of civil union supporters. The Democratic governor who signed the civil union bill was reelected handily, as was the Democratic lieutenant governor, who supported full marriage equality.


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The local electoral reaction to the 2003 Goodridge decision was even more striking. As Massachusetts legislators considered their options, there was much discussion about the electoral costs that their colleagues had suffered in Vermont just three years earlier. But this time around, SSM advocates successfully fended off all seven primary challenges faced by their legislative supporters in 2004, while unseating two incumbents who opposed SSM and picking up three open seats as well. SSM supporters picked up three additional seats in special elections held in early 2005, and in 2006, they captured the governor’s mansion as well, with SSM supporter Deval Patrick elected to succeed SSM opponent Governor Mitt Romney. In sum, once Goodridge’s dust had settled, the state’s elected institutions were significantly more supportive of SSM than they had been at the outset. The nationwide electoral impact of Goodridge was more complex, but it was far from uniformly negative. The most direct result was that voters in 16 states enacted anti-SSM constitutional amendments in 2004, 2005, and the first half of 2006. These amendments represented significant policy setbacks for SSM advocates, and they may have had broader electoral consequences as well. Klarman and Rosenberg each argue that the presence of these amendments on state ballots in November 2004 contributed to President Bush’s reelection and the GOP’s pickup of four additional seats in the U.S. Senate. Since President Bush and the Republican Senate subsequently named then-Judges John Roberts and Samuel Alito to the Supreme Court, Klarman suggests that SSM litigators may bear responsibility for entrenching a conservative judicial majority as well (2005: 468). Taken together, Rosenberg and Klarman make a strong case that the Massachusetts decision contributed to President Bush’s victories in Ohio and Iowa and to GOP Senate victories in Kentucky, Oklahoma, and South Dakota. But while the Goodridge decision clearly mobilized opponents of SSM, it seems to have mobilized supporters as well. In February 2004, San Francisco Mayor Gavin Newsom responded to President Bush’s recent denunciation of the “activist judges” of the Massachusetts court by announcing that city officials would begin issuing marriage licenses to same-sex couples. Within weeks, 4,000 such couples had married in the streets of San Francisco, drawing nationwide front-page coverage and inspiring a variety of copycat effort. In short, the Goodridge decision sparked a wave of mass action to claim the rights that the Massachusetts court had promised. In addition to the copycat actions by local executive officials, the controversy led to a nationwide wave of new SSM lawsuits, with the leading national LGBT rights organizations filing state constitutional challenges in Connecticut, Florida, Maryland, New York, Oregon, and Washington during the spring and summer of 2004. In New Jersey, California, and Connecticut, the state legislature voluntarily expanded partnership rights while the legal challenges were pending, but in each case, the state high court held that the existing policies did not go far enough. In October 2006, the New Jersey Supreme Court ordered the state to provide same-sex couples with all the legal rights and benefits of marriage; a year and a half later, the California Supreme Court ordered the state to provide same-sex couples with access to marriage itself; and five months after that, the Connecticut Supreme Court followed California’s lead.



The New Jersey and Connecticut victories are particularly notable for causing no discernible electoral backlash. Lewis v. Harris (2006) came down two weeks before the nation’s congressional elections, including a close Senate race in New Jersey, but it had no apparent electoral spillover, either locally or nationally. Civil union supporter Robert Menendez won the Senate race, helping the Democratic Party to capture both houses of Congress for the first time in 12 years, and unlike 2004, the national exit polls revealed little evidence that SSM was a key issue, despite the presence of antiSSM initiatives on the ballot in eight states. The available polling data indicate . . . increasing public support for SSM nationwide. [N]ational polls conducted since Goodridge almost always find at least 30 percent support for SSM and on several occasions have found support exceeding 40 percent, marking an unambiguous increase over pre-Baehr levels. The breadth of public support for granting same-sex couples the legal rights of marriage is most clearly indicated by polls providing respondents with the full range of policy options: that is, asking whether they support SSM, civil unions, or no legal recognition for samesex couples. [A]ggregating the public support for SSM and civil unions in these polls makes clear that a position that “would have been considered a utopian gay fantasy” at the outset of the litigation campaign—that same-sex couples should have access to all the legal rights and benefits of marriage—now receives consistent support from popular majorities (Hirsch 2005: ix).

The Policy Impact Even if the general public has not turned against gay rights, the courtroom victories may have provoked regressive policy change—that is, legislative actions that left LGBT rights advocates worse off than they were at the beginning. In support of this claim, backlash proponents repeatedly emphasize that 45 states have banned the recognition of SSM, with 27 of those states enshrining the ban in their state constitutions. Congress declared in the 1996 Defense of Marriage Act (DOMA) that the federal government would not recognize SSMs and that each state was free to refuse recognition as well. This claim implies a greater degree of policy retrogression than has actually occurred. No state recognized SSM prior to the onset of litigation, so the statutory bans effected no actual change of policy. The constitutional bans have made it more difficult for SSM advocates to achieve their desired policy change, but in the vast majority of these 27 states, the odds that either the legislature or the courts would have legalized SSM were pretty low from the beginning. These concrete policy setbacks, however, should be weighed against the concrete policy advances that have occurred during the same period. Most directly, tens of thousands of same-sex couples have won access to legal rights and economic benefits that they did not have before. Beginning with Hawaii, every state in which a court has ruled in favor of expanded partnership rights for same-sex couples has indeed subsequently seen an expansion of such rights. None of these expansions represent full victories for SSM advocates, but in every state, there has been progress rather


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than retrogression. Several additional states have expanded partnership rights in the absence of a court order, and most if not all of these policy changes are at least partly attributable to the ongoing litigation campaign. All told, since the Hawaii suit was filed, ten states and the District of Columbia have created a legal status, similar to marriage, which same-sex couples may choose to enter. An even greater number of same-sex couples have benefited from the rapid proliferation of employer-provided domestic partnership policies that has coincided with the SSM litigation campaign. When the Baehr decision came down in 1993, only a handful of private employers offered such policies; by 2008, more than 8,000 did so. Among Fortune 500 corporations, the number providing such benefits rose from 10 in 1993 to 270 in 2008. In the public sector, no states provided domestic partnership benefits to their own employees until 1994; by 2008, 15 states (and the District of Columbia) did so. [In May] 1993, when the Baehr decision came down, . . . 23 states still criminalized consensual sodomy, as did the District of Columbia and Puerto Rico; no state does so today [November 2008]. Only 11 states had laws addressing hate crimes on the basis of sexual orientation or gender identity; 32 states have such laws today. Only eight states prohibited private employers from firing a worker on the basis of his or her sexual orientation, and only one did so on the basis of gender identity; today, those numbers are 20 and 12, respectively. No state provided any legal recognition or economic benefits to same-sex partnerships, and only a small number of local jurisdictions did so. Today, 15 states provide health care benefits to the same-sex partners of their own employees, with 11 of them extending some broader set of legal rights to same-sex couples as well.

Compared to What? Despite these policy victories, backlash proponents repeatedly charge that SSM advocates have been lured by the “myth of rights” to adopt a suboptimal strategy. In Rosenberg’s judgment, strategies that emphasized legislation rather than litigation and incremental rather than radical change would have provoked less opposition and hence been more successful (2008: 383, 417). In claiming that SSM advocates in the early 1990s should have pursued their goals both more cautiously and more democratically, backlash proponents tend to misspecify the actual strategic dilemma that these advocates faced. The modern wave of SSM lawsuits was not initiated by the national LGBT rights organizations and could not have been stopped by them. It was initiated by gay and lesbian couples in Hawaii (and elsewhere) seeking health insurance, parental rights, and other legal and financial protections for their families. The actual choice faced by movement leaders was whether to join and help shape these efforts or to watch them continue as uncoordinated actions of individual plaintiffs and their private counsel. From this angle, in a world of constant litigation by friend and foe, the choice faced by movement leaders is not whether the courts should be involved but whether they should hear your claims before deciding your fate.



Once having joined the fray, moreover, the LGBT rights advocates did not decide to litigate and do nothing else. Like their opponents, these advocates have relied on both judicial politics and democratic politics, making a series of tactical decisions in individual circumstances. Drawing on their earlier experience litigating against criminal sodomy laws and the military ban on service by gays and lesbians, they were well aware of the cautious, incremental, and deferential tendencies of judicial institutions, and they knew full well that their efforts had to proceed on multiple, simultaneous fronts. That said, SSM advocates often decided to discourage litigation when the time was not right. Prior to the Hawaii case, movement litigators repeatedly rejected requests to bring SSM lawsuits, and while that litigation was pending, the leading advocates discouraged gay and lesbian couples from filing or continuing SSM lawsuits in Alaska, Arizona, Florida, and New York. In addition to overstating the degree of legislative progress that had occurred prior to the litigation campaign, backlash proponents generally fail to acknowledge that when LGBT rights advocates did win legislative victories, these victories frequently provoked political backlash. The most well known story took place in Colorado, where a series of state and local lawmakers either enacted or considered proposals to ban discrimination against gays and lesbians in the late 1980s and early 1990s, prompting local leaders of the religious right to launch a campaign to amend the state constitution to prohibit any governmental unit in the state from adopting or enforcing such policies. The state’s voters enacted this proposal in November 1992, a result that immediately prompted copycat efforts around the country. The LGBT rights movement responded with multiple state and federal legal challenges, raising both procedural and substantive objections to these antigay initiatives. After several preliminary victories in state courts, this litigation campaign culminated in Romer v. Evans, the 1996 Supreme Court decision invalidating Colorado’s Amendment 2. In similar fashion, the legislative expansion of partnership rights for same-sex couples has repeatedly sparked countermobilization. In at least 28 local jurisdictions since 1993, the actual or prospective expansion of partnership rights by elected officials has provoked either a ballot campaign seeking to repeal the policy or a lawsuit seeking to invalidate it. In nine of these jurisdictions, this countermobilization has been successful. In short, all victories by LGBT rights advocates have sparked legal and political countermobilization, regardless of whether the victories occurred through legislative, executive, or judicial channels.

How Weak Is the Weakest Branch? Given the complex pattern of decentralized policymaking on LGBT rights issues, it is difficult to reach a definitive evaluation of the movement’s overall success. But whether or not the policy victories . . . outweigh the defeats, it does not seem reasonable to treat this record as evidence supporting a sweeping indictment of the movement’s leaders. LGBT rights advocates have surely made some strategic errors along the way, but since their efforts have produced widespread legal and policy gains, the


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sharply negative conclusions (and the hectoring tone) of the backlash accounts seem unwarranted. Put another way, the backlash narrative captures several important features of the recent history of LGBT rights litigation, but it does not support the sweeping and one-sided conclusions that have often been drawn from it. [T]he effectiveness of legal mobilization is quite variable, depending on a variety of contextual factors, including political and legal opportunity structures and the political and legal resources available to advocates. In seeking to impose a single narrative on the role of courts in American politics, purveyors of the backlash thesis flatten this complex reality. For outsider groups facing public and private violence, the criminalization of their family relationships, and systematic discrimination in all sectors of civil society, constitutional litigation may look like a fool’s errand. But it may nonetheless be the best available tool. So long as this country’s courts remain open to groups whose interests are inadequately represented in our elected institutions, those groups will turn to the courts, in conjunction with other protest strategies, in an effort to eke out what victories they can. Conventional scholarly wisdom has it that the story of all such efforts since Brown is a story of failure. That wisdom may not be so wise.

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Organizations and Law

As discussed in the first section, a significant part of the law and society perspective has been to see systems in contemporary society: the features that endure even as individuals move through them and shape them. Law itself is one of the longest enduring of institutions; however, many of its details change and it is often in these very details that the effects of law take shape. One particularly important dynamic of legal change over the twentieth century was the expansion of large-scale corporate organizations and corresponding attempts to limit, through regulation, the effects of their activities. The works in this section consider the intersections between law and organizations. We cannot begin to study law and society today without recognizing the place of organizations in shaping modern life. Over the past two hundred years, economic activity has been revolutionized, particularly by technological developments ranging from railroads to the Internet. Law helped to enable those changes, just as it enabled the large-scale public and private organizations that develop, support, and maintain those innovations. The sheer expansion of these organizations and their wide scope of activities has had significant consequences for law and everyday life (Friedman 1994). The emergence of economic forces changed how individuals relate to one another. The people you know and depend on are not just your extended family or the people in your town. Today, minute by minute, you are connected, through organizations, to people around the globe. From the chair you’re sitting on to the food you ate for breakfast, organizations have enabled ideas and products to flow over great distances with remarkable speed. The working lives of most people will also be tied inexorably to organizations and systems on the widest scale. The consequences can be simultaneously wonderful and worrisome. The same tools that allow you to send an e-mail to a friend a thousand miles away allow your privacy to be invaded by hackers in another country. The same companies that can deliver energy from the other side of the continent can also produce toxic emissions that can envelop the atmosphere. The large organization that can invest in procedures and practices to protect its workers also has the additional resources it needs to fight and frustrate the law with greater creativity. Lawmakers and public interest advocates have sought to devise regulatory mechanisms that temper the excesses of capitalism and the consequences of decisions that large-scale private organizations make. The impact of those measures has been difficult to disentangle. The enduring concern of critics has been that the noblest 71


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motivations and the spirit of the public interest can fade over time, leaving opportunities for corporations to influence or “capture” the regulators. In turn, the scale of operations available to modern organizations gives these firms the means and motive to become the “haves” in the development of law. They often can afford to play for the rules. They seek efficient modes of operating. They can make use of the most sophisticated legal advice. To some observers, it wouldn’t be going too far to claim that organizations seek to build the world in their image. While many forces influence organizations, the significance of an organizational perspective on law also lay in the way that organizations themselves act; these organizational processes can exert a strong influence on the operation of law. Law has become part of the routine activities inside corporations and other organizations. Consequently, organizations have to determine how to integrate law and legal requirements into their daily operations. Law and society research has drawn on and advanced research about organizations that demonstrates that uncertainty leads organizations to seek cues from their environment (including how other organizations have responded). Law and society research has demonstrated that contrary to the belief that regulation acts on organizations, it is how organizations respond to and internalize legal requirements that actually mediates law. In other words, the law in practice is endogenous to organizational environments—its effects grow from organizational practices (Edelman 1992). Not all hope has been lost, however, and scholarship has become increasingly sensitive to nuances across national cultures, organizational cultures, individual leadership, and economic circumstance. With a swirl of external and internal pressures acting on organizations, how much light have we shed on corporate decision making? Law and society scholars have proved some of the most incisive observers of the influence over the law wielded by organizations, yet they have also developed a sensitivity to the unexpected or complex ways that organizations and law shape one another. As the study of regulation extends beyond industrialized, common law countries, the relationship between organizations and the law must confront new complexities. How do law and legal cultures shape the development of the economy and human potential?


Explaining Corporate Environmental Performance How Does Regulation Matter? Robert A. Kagan, D orothy Thorn ton, and Ne i l Gunningha m

In what ways and to what extent does regulation matter in shaping corporate behavior? How important is it compared to other incentives and mechanisms of social control, and how does it interact with those mechanisms? As all firms do not respond in the same way to law or to other external pressures, how do we understand variation in corporate behavior? In seeking to answer these questions, the sociolegal and policy literature on regulatory administration traditionally has focused on explaining corporate compliance and noncompliance with existing legal requirements. The tacit assumption has been that legal compliance by targeted groups is the key to meeting the objectives of social regulation. Underlying that assumption is another: that regulated business corporations take costly measures to improve their performance only when they believe that legal noncompliance is likely to be detected and harshly penalized. From the viewpoint of traditional models of corporations as “amoral calculators” (Kagan and Scholz 1984), why would a profit-maximizing company want to do more than the law requires since compliance is itself often expensive and overcompliance even more so? Yet it is becoming apparent that an increasing number of companies now perform, to a greater or lesser extent, “beyond compliance” with existing regulatory requirements. This suggests that the degree of variation in, and the motivations for, corporate behavior may be much broader than many researchers have imagined. This is of practical importance: some existing regulatory strategies, in focusing on compliance, have failed to facilitate, reward, or encourage beyond-compliance behavior, or even inadvertently discourage it, while other regulatory reformers, in contrast, have argued that government-mandated self-regulation is the key to progress. There is no better illustration of the importance of studying “overcompliance” as well as compliance than the arena of environmental regulation. For here there is considerable variation in how firms respond to external pressures, including regulation, and in at least some industries, considerable evidence of “beyond-compliance” behavior. [A]lthough it is widely assumed that variations in regulation and regulatory enforcement account for differences in environmental performance by regulated Abridged from Law & Society Review 37, no. 1 (2003): 51–90.



Robert A. Kagan, D orothy Thorn ton, and Neil Gunningham

businesses, it is far from clear that this is indeed the case. It is equally plausible (at least in economically advanced democracies) that differences among regulatory regimes have narrowed sharply, and that local social pressures, market incentives, and corporate environmental management are now the chief determinants of variations in firm-level environmental performance, and of beyond-compliance behavior in particular. In this article, we seek to advance the empirical understanding of these questions by reporting the results of our study of 14 pulp and paper manufacturing mills in British Columbia, Canada; Australia; New Zealand; and the states of Washington and Georgia in the United States. We have used a combination of qualitative and quantitative data gathered in 1998–1999 to examine a number of alternative explanations for variation in “environmental performance” across business corporations. We have particularly focused on the role of (1) regulatory regimes; (2) economic variables (such as firm-level economic incentives and resources); (3) political and social pressures; and (4) corporate environmental management and attitudes. We address these questions: What explains both a narrowing in the gap between best and worst performers and the substantial variation that remains? To what extent, and how, do various external environmental drivers, such as regulation, market, or community pressures impact on corporate environmental performance? What is the relationship between managerial attitudes and environmental performance—to what extent does “management matter”? And do different types of regulatory regime achieve different environmental outcomes?

Research Methods The manufacture of pulp is chemically intensive and historically a major source of serious air and water pollution. Because the industry is closely scrutinized, we were able to examine the influence of environmental advocacy organizations and local communities, as well as regulatory agencies, on corporate environmental performance. Because pulp mills have been obliged to develop complex systems of internal regulation and record keeping, we were able to study differences among firms in management styles and to obtain relatively detailed data concerning their control technologies and emissions. The industry’s ubiquity enabled us to compare the impact of regulatory regimes on the same industrial processes in four nations—Canada, Australia, New Zealand, and the United States. Qualitative Environmental Performance Data At each facility, we conducted lengthy on-site, semi-structured interviews with environmental managers and, in most cases, mill managers. Our discussions were designed to elicit information about each facility’s environmental management and pollution control history, control systems, challenges, approach to problems, and relations with regulators and environmental activists. In most cases, we also interviewed



officials in corporate headquarters, regulators, and environmental activists familiar with the mills in question. We sought additional perspective on each facility through interviews with industry association officials, environmental consultants, financial analysts, corporate lawyers, other commercial third parties, and, on occasion, mill employees. Quantifiable Environmental Performance Data Because good environmental performance requires progress on many dimensions, measuring relative success, even within an industry with comparable processes, is far from simple. In this article, we focus on water pollution alone, partly because of the elusiveness of comparable measures for the many types and sources of air pollution in pulp mills. We concentrated, therefore, on obtaining the following measures of water pollution data . . . 1. Biological Oxygen Demand (BOD), the standard measure of organic pollutant content of water, is a universally measure of effluent quality. 2. Total Suspended Solids (TSS), the standard measure of particulate content of water, is another universally important measure of effluent quality. 3. AOX measures the level of absorbable organic halides in mills’ effluent waters standardized by production level. Assessing Environmental Management Style Our field research . . . sought to identify “environmental management style” at each of the mills and corporations in our sample. By management style, we refer to the combination of managerial attitudes and actions that mark the intensity and character of each management’s “commitment” to meeting environmental responsibilities. We focus on both attitudes and implementing actions because we learned that that managerial attitudes toward environmental matters could best be inferred from managers’ accounts of the decisions and actions they had taken in response to particular regulatory or community challenges. Thus we based our assessment of each mill’s “environmental management style” on (1) managers’ “expressed attitudes” toward environmental problems, (2) managers’ actions and implementation efforts to meet specific economic, regulatory, and community challenges, and (3) their explanations for those actions. We constructed five ideal types: Environmental Laggards, Reluctant Compliers, Committed Compliers, Environmental Strategists, and True Believers.

Findings General Pattern: Compliance, Declining Pollution, Narrowing Differences Over the last few decades, the pulp and paper industry has gradually reduced many important categories of environmentally harmful emissions. Mill-level data from our sample facilities mimic that industry-wide trend. In 1999, none of the mills we


Robert A. Kagan, D orothy Thorn ton, and Neil Gunningham

studied were regulatory laggards in the sense of being ignorant of or systematic evaders of their “regulatory licenses.” All the mills in our sample generally were in compliance with their regulatory permits, and indeed their emissions of BOD and TSS generally were substantially lower than the levels required by their permits. Nevertheless, at the end of the twentieth century there remained significant differences among pulp and paper mills in environmental performance. [W]e are left with an important puzzle. Why have some pulp mills done a better job in reducing pollution than others? Regulatory Regimes and Facility-Level Environmental Performance Underlying the tradition of “command and control” regulatory laws, as well as much popular and academic writing about regulation, is a “deterrence model” of firm behavior, which holds that business firms abate environmental impacts only as required to by law and when they believe that noncompliance might be detected and penalized. In this model, variation in environmental performance depends on the interaction of: (1) the stringency of official environmental regulations; (2) the likelihood that violations will be detected (by officials or complainants); and (3) the severity of sanctions for noncompliance, as applied. Other theories of regulation, however, argue that a uniformly aggressive style of regulation is likely to engender legalistic and political resistance, and that a more cooperative and flexible style of regulatory enforcement will generate higher levels of compliance, at least if regulators have the credible capacity to invoke strong legal sanctions against firms that fail to cooperate. Whichever theory is correct, however, one would expect a significant correlation between regulatory style and environmental performance. Prior research strongly indicates that the United States tends to employ a more prescriptive, deterrence-oriented style of regulation, whereas Canada, New Zealand, and Australia  .  .  . generally employ a more cooperative, negotiated mode of enforcement. [O]ur comparative data . . . found no consistent difference among regulatory jurisdictions in the environmental performance of “their” pulp mills. Notwithstanding the supposedly greater deterrent threat of the American approach to regulation, the mills in the United States . . . were as likely to be in the bottom half as in the top half of the environmental performance league. Moreover, the American mills in Washington (considered by some a politically “greener” state) did not do significantly better on average than those in Georgia. Similarly, we failed to detect any significant statistical relationship between regulatory jurisdiction and the extent to which pulp mills had invested in state-of-the-art pollution control or reduction technology. In no jurisdiction do regulations and regulators make all facilities march exactly together, as in close order drill; rather, like cowboys during a long, slow cattle drive, they prod a group of individuals in the same general direction. Hence it is more likely that other factors, associated with the firms’ economic situations, community pressures, and environmental management styles, are equally if not more important.



Economic Variables and Environmental Performance Logically, firms that are more profitable and have greater financial depth should be able to sustain better environmental records than firms in the same industry that are pinched for profits and financially strained. Thus we tested the proposition that mills owned by larger corporations, and those with larger current profits and rising stock prices, would have better environmental improvements than those owned by corporations with lower sales, smaller (or negative) earnings, and declining share prices. Our data provides some support for this proposition, provided that one assumes that it takes time for a corporation to translate economic good times into good environmental performance. Social Pressures A growing body of literature focuses on the role of social pressures (or their absence) in shaping firm behavior vis-à-vis regulatory values. In some communities, environmental advocacy organizations, neighborhood groups, and local governments have intensified legal pressures by lodging complaints with regulatory agencies and courts. Environmental activists can intensify economic pressures by generating adverse publicity about polluting firms and organizing consumer boycotts. Mobilized communities also can have a direct political effect, inducing firms to improve environmental performance beyond the dictates of current law in hopes of forestalling tighter governmental regulation, or in hopes of preserving the local goodwill that facilitates smooth relations with local government and employees. Virtually every pulp mill we visited reported significant environmental pressures from their host communities, which could hardly fail to notice the unpleasant odors and plumes of steam emitted by these facilities. Many mill managers spoke to us of having to meet the terms not only of their regulatory license but of their “social license.” As a mill manager told us, “We have to continuously convince the public we have a right to exist.” We could not generate quantifiable measures of the degree of social pressure on each mill, that is, of the relative “stringency” of the terms of each firm’s social license. Thus we cannot compute a quantitative relationship between social license pressures and firm-level environmental performance. A qualitative analysis, however, suggests that variations in social pressures have significant effects on firms’ relative environmental performance. [M]anagers at different mills responded to social pressures in different ways. In some cases, our interviewees claimed that dramatic demonstrations against them by Greenpeace operated as a “wake-up call” that changed their corporation’s attitudes toward its environmental responsibilities. But it took a change in management before [Mill] TS, despite its salience to the local community, adopted an open and receptive stance toward local activists. Mill AT, located in New Zealand, responded to Greenpeace’s campaign against it by seeking court injunctions to restrain individual group members and engaging in its own media campaign to counter Greenpeace’s arguments. As AT’s


Robert A. Kagan, D orothy Thorn ton, and Neil Gunningham

environmental manager described it: “We decided to take the battle to Greenpeace, and our PR guy enjoyed the scrap. We decided we can win this war. We can visit the schools before they do, and build relationships with indigenous groups. It comes down to individuals and over time, to trust.” In summary, the company does not acknowledge any change in its behavior as resulting from the Greenpeace campaign and prefers simply to “tough it out.” Environmental Management Style and Environmental Performance AT’s response suggests that the influence of social pressures on environmental performance depends on an “intervening variable”—managerial attitudes. Our interviews, too, convinced us that firm-level “environmental management style” affects how firms respond to pressures from regulatory regimes and economic constraints. As noted earlier, we classified each mill’s environmental management style on a scale extending from Environmental Laggard through Reluctant Complier, Committed Complier, Environmental Strategist, to True Believer. We then correlated environmental management style with environmental performance. The results are striking. [A]verage BOD emissions for True Believers were substantially lower than those for Environmental Strategists, whose emissions were substantially lower than the average for Committed Compliers, whose emissions were substantially lower than the average for Reluctant Compliers. The same relationship emerges, albeit somewhat less dramatically, with respect to control of AOX and TSS (except that the Environmental Strategists did better than True Believers, on average, in controlling TSS). The correlation between environmental management style and environmental performance was 0.76 for BOD, 0.66 for TSS, and 0.57 for AOX. Thus in a cross-sectional analysis in 1998–1999, environmental management style was a much more powerful predictor of mill-level environmental performance than regulatory regime or corporate size and earnings. One reason that environmental management style is associated with better environmental performance is that True Believers and Environmental Strategists tend to invest in better pollution control technology. But better technology is far from the only reason for better environmental performance by Environmental Strategists and True Believers. Much of their edge, our interviews suggest, stems from more active “scanning” for “win-win” measures (which improve environmental performance and cut costs) and from a dedicated approach to day-to-day environmental management (what we have called “implementation”). Environmental Strategists and, especially, True Believers also do a better job of building “reputational capital” with regulators and with environmental activists (in local communities and nationally), which appears to pay off in attaining more flexibility in regulatory permits. At the same time, environmental management style operates within important economic constraints. It is far from omnipotent in shaping environmental performance, and may well be shaped in part by the firm’s economic situation. We are left, therefore, with a complex, multivariate explanation for interfirm differences in environmental performance.



Discussion Both our quantitative and qualitative analyses leave us convinced that theories of corporate environmental behavior that focus on a single variable—whether legal, economic, or attitudinal—are almost always doomed to be incomplete and inadequate. Corporate environmental behavior appears to be shaped by two sets of interactions, first among “external variables”—legal, economic, and social/political—the second between corporate managerial attitudes and each of the external factors. Notwithstanding substantial convergence in environmental performance, and at levels that often go beyond regulatory requirements, some pulp mills still do a much better job than others in curbing pollution. To explain that kind of interfirm variation, much of the literature on business strategy and environment has pointed to external “drivers” of behavior, such as the firm’s economic circumstances and opportunities for profit through environmental activism, or the degree of political and social pressure for environmental improvements that the firm faces. However, we found it more useful to think of the various external pressures (as indeed industry itself increasingly thinks of them) as terms or conditions of a multifaceted “license to operate.” In contrast with the concept of unidirectional drivers, the concept of a license captures the complexity of the relationship between the regulated enterprise and key stakeholders, and it accords with an important reality we observed: the relationship between the licensors and licensees is interactive, not unidirectional, and many of the terms of the license are open to interpretation, negotiation, and company-initiated amendment. Traditionally, the notion of a business’s “license to operate” referred only to the company’s legal obligations. [T]hese regulatory obligations and permits might be referred to as a facility’s legal or regulatory license. Today, however, the concept of “license to operate” must include “economic reality” requirements such as the need to maximize shareholder return on investment (or at least to provide a reasonable rate of return). In addition, the “license to operate” concept has been extended to include the demands of social actors. The regulatory, economic, and social licenses are monitored and enforced by a variety of stakeholders, who commonly seek leverage via the other licenses as well. Environmental groups not only enforce the terms of the social license directly (e.g., through shaming and adverse publicity) but also seek to influence the terms of the economic license (e.g., generating consumer boycotts of environmentally damaging products) and of the regulatory license (e.g., through citizen suits or political pressure for regulatory initiatives). Thus the interaction of the different types of license often exceeds the effect of each acting alone. The terms of some legal license provisions extend the reach and impact of the social license by directly empowering social activists or by giving them access to information that they can use to pressure target enterprises. Conversely, a company that fails to respond appropriately to social license obligations risks a tightening of its regulatory license, as frustrated community activists turn for help to politicians and regulators.


Robert A. Kagan, D orothy Thorn ton, and Neil Gunningham

Conclusion [R]egulation matters a great deal. Regulation has been directly responsible for the large reductions in pulp mill pollution that stem from capital investments in very costly pollution control technologies. Less directly, regulatory rules (and corporate compliance or noncompliance with them) serve as a benchmark for groups other than regulatory officials who evaluate and influence corporate behavior—financial analysts, environmental advocacy groups, politicians, and corporate environmental managers. Yet governmental regulation, as conventionally viewed, does not fully explain two clear and important findings. First, the pulp mills we studied did not merely comply with regulation but operated “beyond compliance” in significant ways, for example, by reducing water pollution to levels well below the limits required by the companies’ regulatory permits. Second, notwithstanding substantial convergence over time, the pulp mills differed significantly in the extent to which they had gone beyond legal compliance. That variation did not correlate closely with the demands of the firms’ regulatory licenses. Nor did the purported greater prescriptiveness and deterrence threat of U.S. environmental regulation make pulp mills in the United States better environmental performers, on average, than those in Canada, Australia, or New Zealand. More broadly, there was more variation within than across regulatory jurisdictions. Rather than regulation, social license pressures and the character of corporate environmental management appear to be the most powerful factors that prod some firms further beyond compliance than others. Conversely, in a highly competitive commodity market such as pulp manufacturing, economic pressures limit how far even the most environmentally committed firm can leap ahead of its competitors, at least in making nonincremental environmental gains through costly new technologies that are not clearly likely to pay for themselves in financial terms. Although the Environmental Strategists and True Believers in our sample were able to make steady incremental progress through “win-win” measures such as better employee training and dedicated maintenance regimes, we found little evidence of a rich supply of major “win-win” investments that environmentally committed corporate managers could make, and hence little evidence that simply exhorting managers toward “environmental excellence” could substitute for regulation in overcoming tough economic constraints. Management does matter, but to paraphrase Marx, while companies make their own history, they do so in circumstances not of their own choosing. If the pulp industry is any guide, governments pay attention to economic constraints facing the industry as well. They rarely mandate the use of such costly new environmental technologies in the absence of the demonstrated economic viability of the technology or major public pressure, as in the case of the dramatic reaction to the discovery of dioxins in pulp mill effluent. Far from inflicting a technology-forcing, one-size-fits-all set of regulatory requirements on all regulated firms, as critics of regulation often suggest, a close examination of the permits of pulp mills reflects a



governmental propensity, in all jurisdictions we studied, to tailor requirements to the technological and economic constraints of particular regulated entities. One lesson of this study, therefore, is that government regulation might be viewed less as a system of hierarchically imposed, uniformly enforced rules than as a coordinative mechanism, routinely interacting with other sources of pressure for socially responsible corporate behavior such as markets, local and national environmental activists, and the culture of corporate management. If regulation is less important than environmental management and social pressures in inspiring “beyond-compliance” corporate activity, a competent regulatory system spurs progress by reassuring corporate environmental leaders that their less-committed competitors also will be compelled to spend the money to achieve environmental outcomes that the leaders have demonstrated are technologically and economically feasible. Moreover, in the programs we studied, regulators issued permits that required firms to file their own plans for analyzing and reducing designated emissions or environmental hazards; after review and perhaps renegotiation by regulators, the company plan became a binding regulatory obligation. By “delegating the details,” regulated entities were prodded to undertake periodic, if not continuous, efforts to keep up with or advance the state of the art in environmental protection.


The “Compliance” Trap The Moral Message in Responsive Regulatory Enforcement Christine Pa rker

The scholarly literature on enforcement suggests that enforcement often fails to improve compliance because it insufficiently deters. The “deterrence trap” means that penalties for noncompliance will either not be big enough to deter rational misconduct, or they will be so large that they exceed the capacity of firms to pay, thereby damaging innocent employees and creditors. Moreover, there is a low probability of detection and successful enforcement action for most business offenses, making the perception of deterrence even less potent. Scholarly evidence and regulatory best practice suggest that regulators should generally use mixes of regulatory styles or strategies to improve compliance, rather than relying on deterrence alone. The leading theory for explaining and prescribing that mix is responsive regulation. It proposes that enforcement strategies tend to be, and should be, arranged in a regulatory pyramid, with more cooperative strategies deployed at the base of the pyramid and progressively more punitive approaches utilized if and when more cooperative strategies fail. The objective is that firms and individuals will comply, even without enforcement action, through internalization and institutionalization of compliance norms, informal pressure, and the indirect threat of the “benign big gun” at the top of the pyramid. This article argues, however, that these strategies too will lead regulators into a trap—the “compliance trap”—that can only be resolved with political support. Simple deterrence will often fail to produce compliance commitment because it does not directly address business perceptions of the morality of regulated behavior—it merely puts a price on noncompliance, and the ability of that price to deter misconduct will depend on the operation of the deterrence trap. Responsive regulation, by contrast, seeks to build moral commitment to compliance with the law. This article shows that a regulator can overcome the deterrence trap with the skillful use of responsive regulatory techniques that “leverage” the deterrence impact of its enforcement (and settlement) strategies with moral judgments and public interest considerations (such as failing to settle early if public interest conditions are not met, or using publicity to underline the social unacceptability of the conduct). But this leads it into the compliance trap. Abridged from Law & Society Review 40, no. 3 (2006): 591–622.


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As this article shows, business offenders and onlookers are likely to interpret morally leveraged deterrence as unfair or stigmatizing, and business perceptions of regulator unfairness are likely to have a negative influence on long-term compliance with the law and cooperation with the regulator. Moreover, big businesses that perceive regulatory enforcement as illegitimate are also likely to actively lobby for the removal or non-appointment of key regulatory staff and for accountability mechanisms to rein in “illegitimate” enforcement activities. Where fulsome political and moral support for the enforcement regime is lacking, then the compliance trap is set. Responsive regulators find themselves in a dilemma: overcome the deterrence trap by making morally tough demands that may not only undermine business commitment to compliance in the longer term (because they lack political legitimacy), but also undermine their own political support (because business will respond by lobbying government to emasculate the regulatory enforcement agency). Or avoid conflict with businesses by not making any difference at all. Since political support for a tough, moralizing enforcement approach to business regulation is often lacking, “responsive” regulators are likely to find themselves jumping out of the deterrence trap frying pan into the compliance trap fire. It is a compliance trap because it occurs only when regulators are actively seeking to improve business compliance, and commitment to compliance, through their enforcement activity. A regulator that engages in formalistic enforcement activity for its own sake will not face this dilemma. It is a trap because, in the absence of external political support, there is nothing the regulator can do to escape. The regulator must either choose weakness (no compliance impact) or have weakness thrust upon it (lack of legitimacy leading to emasculation). The regulator itself can overcome the deterrence trap by the skillful use of responsive regulatory technique. The compliance trap can only be resolved politically, external to any particular regulatory enforcement encounter. The empirical evidence in this article comes from qualitative research on the impact of Australian Competition and Consumer Commission (ACCC) cartel enforcement activity on business compliance with competition law between mid-1997 and mid-2003. The ACCC is Australia’s federal competition and consumer law regulator, responsible for investigating and enforcing provisions of the Trade Practices Act 1974 (Commonwealth) (“the Act”), including Section 45, which prohibits anticompetitive agreements (which can include price-fixing and market-sharing agreements). At the time of the enforcement activity reported on in this article, the ACCC was explicitly committed to using a responsive regulatory pyramid of enforcement strategies. The data are based on qualitative interviews with ACCC enforcement staff, business people, and their external lawyers. These data are supplemented with secondary analyses of contemporaneous accounts . . . (e.g., court documents and newspaper reports) and interviews with 37 ACCC staff and 21 specialist trade practices lawyers on the impact of ACCC enforcement activity generally. The Freight case was the ACCC’s first major cartel enforcement action success, and it is therefore used as the central case study in this article. [In the Freight case, three large companies that dominated the market—TNT Australia, Ansett Transport Industries, Mayne Nickless—agreed


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informally that they would not “poach” each other’s customers, that they would “compensate” each other for customers that moved, and that uniform prices would be charged for “air satchels.” After enforcement, the companies agreed on court orders totaling A$14.2 million in penalties and injunctions.]

Overcoming the Deterrence Trap with Leveraged Deterrence: Responsive Regulation Australia’s antitrust provisions do not set in place a tough enforcement regime. The enforcement agency, the ACCC, must prosecute contraventions of the competition provisions of the Act in court through a civil, not a criminal, process, and it has no power to impose penalties of its own. The main compliance mechanism evident in the Act is to deter misconduct through the application of penalties. While the penalties available in court since 1993 amendments to the Act are large relative to other Australian regulatory regimes (A$25,000 for individuals and A$10 million for firms per offense), they are paltry compared with the possibility of jail sentences and fines of a percentage of turnover in other jurisdictions, such as the United States, European Community, and Japan. Moreover, penalties never even approach the maxima in practice. In a number of the ACCC’s later cartel enforcement actions, it found evidence that cartel participants were well aware of the penalties levied in earlier cases but continued their activity anyway. [B]etween 1997 and 2003 most cartel cases settled. Of the 21% that were litigated, the ACCC won the vast majority. The Freight and Concrete cases, two of the earliest cartel cases finalized after the higher penalty regime had been introduced in 1993, set a benchmark for high penalties that received much media coverage. Before 1993, by contrast, the ACCC generally had a poor record at both settling matters and winning in cartel litigation. The ACCC strategically and intentionally overcame deterrence failure in two ways to achieve these successes. First, the ACCC leveraged up the deterrence value of the modest financial penalties available under Australian competition law with the administrative and personal cost and inconvenience of the investigation process and the reputational damage caused by publicity. Consistent with previous research on motivations for compliance, all the interviews indicated that businesses and their lawyers saw the process of ACCC investigations, and the publicity associated with ACCC enforcements, as more effective motivators of compliance than penalties. TNT’s settlement in the Freight case illustrates well the ways in which the process becomes the main punishment for those firms that face enforcement action. The potential penalty, if found liable for the cartel conduct, did not even have to be factored into the equation to make this a wise decision: [M]ake no mistake when the litigation was proceeding there was at least one story per week in the Australian Financial Review about [the] litigation. The company and its

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advisers had no doubt that the TPC [Trade Practices Commission] kept feeding the media. This exposure generated a negative sentiment about the company within the financial sector and make no mistake this may have been a bigger incentive to settle than the costs of the litigation. There is equally no doubt that the costs of the litigation were a major issue for the TNT group.

The Freight case began a trend of settling trade practices enforcement matters with the Commission. The interviews with lawyers indicated that in most of these cases, the reputational, legal, and management costs of the enforcement process were what provided these firms with the commercial imperative to settle, rather than the amount of penalties that might be awarded by the court. Second, the ACCC targeted a range of individuals and organizations (such as industry associations, compliance professionals, and potential whistle-blowers) with the capacity to improve business compliance by putting in place a web of controls that reduced the opportunities for, or the advantages of, offenses and embedding norms and practices for avoiding noncompliance in the social structure of industry. The ACCC developed a policy of holding as many parties—individual and corporate—legally liable as actually contributed to the conduct, rather than just focusing on the main corporate participants in the cartel. Even if penalties against firms are too small relative to the firm’s size and profits to be of deterrent value, this strategy spreads the deterrent threat to individuals who are likely to be more sensitive to smaller penalties, or even just to the shame of having a finding of liability and an injunction against re-offending against them. According to responsive regulation theory, the deterrence trap is a trap not only because regulators may not be able to levy a financial penalty sufficient to deter, but also because assuming that people make decisions about compliance on the basis of cost-benefit calculations is often likely to be a mistake. Responsive regulation responds to the complexity of the motivations and contextual factors that influence compliant and noncompliant behavior. It seeks to build on people’s intrinsic commitment to comply, where it exists, and broaden the targets of regulatory enforcement so that the regulator is more likely to find “softer” targets that can be motivated by modest deterrent penalties or by the shame of being implicated in wrongdoing (Braithwaite 2002: 110). As we see in the next section, however, these strategies communicated too potent a message about the moral seriousness of cartel conduct to be palatable to businesses and their lawyers. The resulting conflict between businesses and the ACCC showed that the ACCC was in a compliance trap.

The Compliance Trap Businesses, including the CEOs of a number of Australia’s biggest companies, regularly and openly criticized the ACCC for adversarialism that they perceived as procedurally unfair, and publicity that was stigmatizing. From the business point of view,


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the ACCC’s leveraged deterrence strategies lacked legitimacy because they disagreed with the ACCC’s implicit and explicit moral stand on cartel conduct and how it should be treated in the enforcement process. Businesses would prefer the ACCC to take a technical, purely economically rational deterrent approach, where noncompliance has a financial price but not a moral and reputational one. This difference of opinion about the moral status of cartel offenses and therefore how the ACCC should exercise its enforcement powers in this area is evident in the two sides’ conflicting views about (1) the ACCC’s use of its powers of investigation, (2) the ACCC’s use of publicity to draw attention to offenses, and (3) the meaning of a settlement of enforcement action, as shown in the following sections. In each case, businesses (and business lawyers) complained that ACCC enforcement action was stigmatizing, overly aggressive, and adversarial. They would prefer a more cooperative, reparative, and rehabilitative approach. ACCC’s Use of Powers of Investigation Despite the fact that the Act gives the ACCC fairly substantial powers to compel the production of documents and attendance at interviews, and even to enter premises to make copies of documents, businesses and business lawyers seemed to feel that the ACCC should avoid appearing to act “like police.” [T]he ACCC was also criticized by lawyers interviewed for using Section 155 notices (requiring individuals and businesses to produce evidence or answer questions) too early in other investigations and without adequately trying cooperative methods of investigation first—a practice that makes businesses feel they are being treated like criminals: They don’t call first or anything—they just start with a s155 notice. They’re cautious of tipping people off, I suppose. They feel the people they are investigating are baddies and they don’t want them to go away and start shredding documents.

ACCC’s Use of Publicity Some interviewees believed that the ACCC intentionally and unfairly made an example of cases for the sake of publicity, or that the ACCC had publicized enforcement activity before there was any court decision to announce. Business and lawyer interviewees criticized ACCC publicity for portraying offenders too starkly as evildoers motivated purely by the possibility of obtaining excessive profits and gains for themselves by price gouging. The ACCC did intentionally make media statements pointing out each of its successes in cartel enforcement and identifying what it believed to be the social harm of each case of cartel conduct as it was settled. At the same time, the ACCC had also been campaigning for criminalization of cartel conduct. The juxtaposition of the ACCC’s campaign for criminalization of cartels with its

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proactive media statements about the social harmfulness of the conduct in particular cases made some offenders who settled with the ACCC feel stigmatized. The Meaning of Settlement of Enforcement Action Businesses and business lawyers also tended to think that the ACCC was excessively adversarial in its approach to negotiating settlements. The ACCC’s approach to cooperative settlement of cartel enforcement matters clashed with the business approach, which sees decisions about settlement or litigation as a commercial matter implying no admission of moral blameworthiness: “The Commission is obsessive about getting declarations of guilt . . . .” Businesses saw agreeing penalties, court orders, and enforceable undertakings with the ACCC as a nolo contendere. They simply saw themselves as “not contesting” the regulator’s case but making admissions “for the purposes of proceedings only.” In doing so, they expected to escape moral opprobrium and accountability, just as they normally try to do in private civil law disputes. The ACCC, by contrast, saw the bringing of enforcement proceedings as a matter of public morality to show that standards were being maintained and misconduct remedied. The ACCC was not willing to abandon this objective merely to get a settlement. The Compliance Trap and the Failure of Responsive Regulation What amounts to compliance with the law is a matter of interpretation, negotiation, and frequently argumentation, between businesses and regulators, their lawyers, and, where matters are litigated, the courts. Compliance is meaningless, or rather has contested meanings, in the absence of some commonly accepted understanding of the way regulatory requirements should be interpreted and applied. The literature on regulatory compliance and responsive regulation suggests that enforcement action should be an opportunity to bring regulators and those regulated closer together in their views of compliance with the law. Enforcement action might provide an opportunity (1) for businesspeople to be persuaded of the value of compliance with the law (through both deterrence and conversion to the values of the law), and for (2) regulators to understand more fully the motivational complexity that leads to violations of the law and learn how to improve the law and their enforcement of it to cope with that motivational complexity in a fair and nonstigmatizing way. This subjective interpretation of the process of regulatory enforcement action, however, is fueled by a conflict about the substance of the morality of businesses’ own involvement in cartel conduct that has not been resolved. Businesses may subjectively believe that theirs is a posture of compliance in settling matters with the ACCC. But if this posture exists in concert with what the regulator sees as noncompliance behavior, then a conflict must occur. This is the heart of the compliance trap dilemma. In the absence of authoritative, broader political and cultural support for the regulator’s view of the law, the regulator


Christine Pa rker

is trapped. There is no technique, style, or approach the regulator can utilize to improve compliance where the meaning of compliance is politically contested. The regulator has only three choices: First, the regulator can revert to going soft on compliance in order to avoid criticism and illegitimacy. In other words, the regulator can capitulate to business interpretations of what compliance requires and how the Act should be enforced. Second, the regulator can revert to taking more enforcement matters through the formal court process—a more formal, punitive enforcement style, which leaves it to the courts to determine any conflicts. But this approach runs the risk of falling back into the trap of simple deterrence and failing to promote the cultural and moral change that is necessary for compliance. Third, and from the regulator’s point of view, ideally, a business’s views of the morality of its own conduct and the social context for cartel conduct might change so that the regulator’s enforcement methods come to be seen as legitimate after all and compliance with the regulator’s interpretation of the law comes to be seen as normal. The ACCC tried to take the third path with its leveraged deterrence strategy. But ultimately it appears to have failed to garner the political support necessary to sustain the legitimacy of its interpretation of the law and its moral seriousness. The ACCC’s apparently most successful cartel enforcement action ultimately lacked legitimacy in the eyes of business regulatees. Much of the ACCC’s leveraging was viewed as procedurally unfair and stigmatizing of “ordinary honest businesspeople.” [T]he lawyers and compliance advisers interviewed for this project cited many instances where they believed that clients were certainly willing to behave in compliance with competition law after ACCC enforcement action, but they felt that the ACCC’s actions had broken down the intrinsic motivation to comply, leading to the development of attitudes of resistance, defiance, or disengagement toward the ACCC and its enforcement of the Act. More significant than this, however, is evidence that big business has regularly attempted to influence the way the ACCC carries out its statutory functions by complaining to government ministers, including the Prime Minister, both openly and secretly, about particular ACCC decisions, enforcement strategies, and investigations and about ACCC commissioners, particularly the chair. Such complaints can result in legislative and administrative reform, media attention, and public critique. The compliance trap analysis in this article suggests that where a regulator fails to gain political and community support for its moral messages, it will tend to relapse into one of the first two options above. Regulators are forced into a situation where they feel they have to avoid the conflict engendered by strong enforcement action and strong statements of moral responsibility. This may be one reason why regulatory enforcement agencies often seem to seesaw between formal and punitive, or soft and facilitative enforcement approaches.

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Conclusion Responsive regulation is not merely a matter of technique, style, or skill that can be controlled by the regulator. Ultimately, whatever processes a regulator uses to take enforcement action, there are likely to be conflicts between business and regulator over the substance of the law, its application in business contexts, and the moral seriousness of the social harm caused by its breach. The ACCC cartel enforcement data in this article show that businesses will interpret regulatory enforcement processes in the light of any substantive conflict over the moral message implicit in that enforcement action. The ACCC may avoid stigmatization of cartel offenders by being careful to label the conduct as so harmful it should be criminalized, rather than labeling the people as criminals. But if businesses do not see the conduct as criminal, then they will perceive this as stigmatizing. In this context, conflict between businesses and a regulatory enforcement agency is necessary. It is a sign that the regulator is doing its job and is raising the issues that need to be decided. Confrontation about the moral and social consequences of wrongdoing is required. The compliance trap highlights the moral and political instability of cooperative strategies in the absence of broad political and democratic support. In order for responsive regulation to even be possible, regulators must have the capacity to convince people that regulatory offenses represent shared values as criminal offenses do. John Braithwaite (2002: 30) puts a rider on his theory of responsive regulation that regulators must be enforcing a “just” law—otherwise most activity at the bottom of the pyramid will need to be dialogue about whether the law is just or not. Presumably, he means not only that the law must be just, but that it must be recognized as just (or morally appropriate and democratically supported), in order for the pyramid of responsive regulation to promote compliance rather than conflict. This rider should be printed in capital letters on every page of every scholarly or policy-oriented discussion of responsive business regulation. The type of criticism and conflict suffered by the ACCC is a symptom of a socio-polity that does not take business crime seriously enough to treat it as crime. In the absence of a full arsenal of enforcement tools, and political and cultural support for the law that they are required to enforce, business regulators are being given an impossible task to promote compliance—even if they are skillful enough to overcome the deterrence trap, they will fall into the compliance trap, which can only be resolved politically.


Labor Regulation, Corporate Governance, and Legal Origin A Case of Institutional Complementarity? Beth Ahlering and Simon Deakin

The legal origin hypothesis claims that diversity across national systems of production can be explained by the influence of common law and civil law modes of regulation on economic development. If this hypothesis were correct, “liberal market” systems such as the United States and Britain would owe their liquid capital markets and shareholder-oriented corporate governance, in part at least, to their common law heritage; in the “coordinated market” systems of mainland Europe or East Asia, by contrast, multistakeholder forms of governance would be underpinned by civil law practices and precepts. Thanks to the transplantation of Western legal systems as a result, for the most part, of colonization and conquest in the nineteenth and twentieth centuries, the influence of legal origin would extend to developing economies. This claim has been highly influential, not least in informing the policy and working methods of the World Bank and other international financial institutions. The legal origin hypothesis has recently been applied to labor regulation. It is claimed that legal origin influences the predominant regulatory style of a given country, which leads in turn to a greater or lesser propensity to adopt protective labor legislation (among other things), after taking into account the roles of politics and culture. The intensity of regulation, in turn, has consequences for long-run economic growth and development. [M]uch of the extant legal origin literature relies upon an ahistorical and inaccurate understanding of the significance of the common law/civil law divide: proponents of the legal origin claim present a picture of a “decentralized,” market-friendly common law, and a “centralized,” government-friendly civil law. This view relies excessively upon a few stylized facts and an outdated and largely superseded literature that modern comparative legal analysis has (rightly) rejected. It follows that many of the claims associated with the legal origin hypothesis cannot be substantiated. There is no sound basis for the argument that the common law is more conducive to economic growth than the civil law, either in the developed or the developing world; nor can the diversity of outcomes be explained by the relative weight of judge-made law and legislation as modes of regulation in particular national systems. Abridged from Law & Society Review 41, no. 4 (2007): 865–908.




[W]e offer an alternative, historical-institutionalist basis for understanding the role of law in contributing to diversity in national systems of production. Historical analysis points to contingencies surrounding the emergence of the principal legal forms that define the modern business enterprise, namely, the employment relationship and the joint stock company. The way in which these concepts developed within different common law and civil law systems was, we argue, a reflection of the timing and nature of industrialization in those systems. Britain’s Industrial Revolution preceded the emergence of mature institutional forms for describing organizational and corporate structures. This was to have a profound and destabilizing effect on legal and economic institutions in Britain. In the field of labor regulation, the predominant influence of English law on other systems was not freedom of contract in labor relations, but the export and transplantation of a premodern master-servant regime. On the continent of Europe, by contrast, many of the institutional changes associated with the shift to a market economy came before industrialization, in large part thanks to the liberalizing influence of the private law codes of the nineteenth century. The transition to a market economy was, as a result, less abrupt, and less socially destabilizing than it was in Britain, a trend reflected in the legal doctrines by which social values were infused into contract and property law. The legal systems of Britain and continental Europe were accommodated to industrialization in distinctive ways, without any one route being uniquely successful. Their divergence cannot be explained by the kinds of factors highlighted by the legal origin literature, in particular the supposed predominance of judge-made law in one system and legislative regulation in others.

Institutions, Complementarities, and Comparative Legal Development In the context of comparative political economy, institutions are defined as “rules of the game” whose purpose or function is to minimize transaction costs associated with market activity. Because institutions have the character of a public good, it cannot be assumed that markets will generate them spontaneously; but since the state is composed, in its turn, of agents and coalitions pursuing their own interests and operating under conditions of uncertainty, nor can it be assumed that the public power will necessarily act in the general interest when setting and enforcing rules. This implies that institutions are the result, to some degree, of design, but also that ex post adjustment, trial and error, and experimentation play key roles in the emergence of stable forms. It further follows that an understanding of more formal institutions, including the legal framework, must be complemented by an appreciation of how they interact with informal norms, social conventions, and tacit beliefs in shaping behavior. A second focus of the new institutional research agenda is on the explanation of diversity. The persistence of different institutional forms across national boundaries, in the face of common technological and market pressures, implies the possibility of multiple equilibria or pathways to economic development. While institutions contain elements of design, the way in which they relate to one another at a systemic level is the result of an evolutionary process whose outcome,

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to a significant degree, cannot be planned or predicted. Thus complementarities often arise from unexpected contingencies or conjunctions. Once increasing returns set in, arbitrary or contingent initial conditions may become fixed. These are sources of “path dependence,” or the tendency of systems to become locked into specific historical trajectories. By virtue of the existence of multiple pathways to economic development, cross-national diversity follows. [M]arket economies share many of the same legal institutions: these range from the basic forms of protection of individual and collective property rights and recognition of the capacity to contract, to more specific types of support for the business enterprise (limited liability and corporate personality), regulation of the employment relationship (labor law), provision of a welfare state (taxation and social security law), and so on. However, the particular forms taken by these institutions differ across national systems, in ways that reflect variations in the evolutionary path. Formal divergence may, however, be compatible with a degree of functional continuity across systems. Functional equivalents for a given legal mechanism may be found in completely different areas of law, or outside the legal system altogether, at the level of social norms or commercial practices. By virtue of functional continuity, in addition to observing complementarities within national systems, we are likely to observe functional substitutes or equivalents—institutions that substitute for one another, in the sense of performing a similar function in different ways—across such systems.

Legal Institutions as a Source of Divergence between National Systems of Production [I]n so-called liberal market systems, the predominant form of employee representation is collective bargaining between employers and trade unions. Collective bargaining operates in a manner akin to setting up a contractual mechanism for negotiation. This can be done by the employer voluntarily recognizing a particular union or unions, which is the norm in Britain, or through various regulatory mechanisms, which, as in the United States since the 1930s, have required the employer to negotiate with a certified bargaining agent that can demonstrate that it has majority support in the relevant bargaining unit. Outside those areas where employers concede collective bargaining or have it forced on them by public regulation, there is no legal obligation to deal with employee representatives. In their emphasis on collective bargaining, these systems may be characterized as voluntarist. Voluntarism at the level of the enterprise tends to go hand in hand with a partial approach to regulation at market level. Thus although both Britain and the United States have national minimum wage laws and some legislation governing basic terms and conditions such as working hours, the tendency has been for statutory regulation to impose only minimal constraints on the employment contract outside those sectors governed by collective bargaining. Coordinated market systems, on the other hand, tend to combine an integrative approach to the role of employees in the enterprise with universalism in labor market



regulation. Integration implies the incorporation of employee voice directly into the decisionmaking structures of the firm. The form this takes varies considerably across systems. In Germany and the Netherlands, employee representatives sit on supervisory boards. [In France], enterprise committees have only a limited say on personnel matters by comparison to works councils in Germany. However, the concept of a general obligation of consultation, which arises independently of whether the employer recognizes a particular trade union for the purposes of collective bargaining, is well established in most continental European systems. Universalism in labor market regulation takes various forms. In Germany, sectorlevel collective bargaining between trade unions and associations of employers sets basic minima. The effects of agreements can be extended to non-federated employers by statutory order. In France, where sectoral bargaining is also observed, a statutory minimum wage and legislation on working time also underpin terms and conditions of employment. Italy does not have a minimum wage, but it does possess legislative and constitutional mechanisms that, by judicial interpretation, can be deployed to extend the effects of collective agreements. In each case, legal devices ensure that all sectors of the economy, more or less, are subject to labor regulation that guarantees workers certain basic protections in the form of “social rights.”

The Influence of Legal Origin on Labor Regulation Legal origin theorists hold that the common law or civil law origin of a given country’s legal system is a major cause of its approach toward the regulation of business. The influence of legal origin on labor regulation is placed in the context of a wider set of claims made by these authors about the effects of the common law/civil law divide. Thus they argue that common law systems provide superior protection to shareholders and creditors than civil law countries, impose lighter entry regulation, have less “formalized” dispute resolution procedures, and rely on private contracting and litigation, rather than regulation, for the enforcement of securities laws. As in other cases, the influence of legal origin on the labor market is indirect; it is mediated through the practice of regulation, or “regulatory style.” If a system has adopted a particular regulatory approach in one area, it is more likely to do so in another. The method used by proponents of the legal origin approach to test their hypotheses is to construct, in each case, an index intended to measure the strength or weakness of laws on a given area in different systems. Individual country scores are then regressed against a number of possible causal factors or independent variables, including legal origin, to see how far they are correlated with them. Possible correlations with a number of economic outcomes are also measured. The results reported in Botero et al. (2004) essentially extend the legal origin hypothesis to labor regulation. Civil law countries are found to regulate the employment contract more intensively than common law countries; the effect is less, but in the same direction, for industrial relations laws. When the analysis is extended to outcomes, evidence is presented to show that higher scores on the labor index are


Beth Ahlering and Si mon Deakin

associated with lower levels of male labor force participation, higher youth unemployment, and a larger unofficial economy. On this basis the authors conclude that labor regulations do not, on the whole, operate to cure market failures. To evaluate these findings, it is necessary to consider the methodological status of the labor index and what it is able to tell us about complementarity, efficiency, and diversity. The sources of the values attached to the variables in the labor index are simply stated as “the laws of each country” in the dataset, as they stood in the mid-1990s (Botero et al. 2004: Table I). These are supplemented by a number of cross-country secondary sources, including the International Encyclopaedia for Labour Law and Industrial Relations, the International Labour Organization (ILO)’s Conditions of Work Digests, and the U.S. Social Security Administration’s Social Security Programs Throughout the World. On the face of it, then, the labor index measures “law on the books” rather than the impact of legal regulation in practice. What of the wider claim of the legal origin school, to have identified a causal link running from legal origin to regulatory style and economic outcomes? Here the central problem is the mechanism by which legal origin plays the role attributed to it. As we have already suggested, strong path dependencies must be at work if the adoption of one or another of the main legal families at some point in the nineteenth century was still having a preponderant influence on the substance of law at the end of the twentieth. However, the method relied on by the legal origin school is not well equipped to throw light on this question. It is time to shift focus, toward an historical explanation for the origins of complementarities.

Historical Origins of Complementarities: The British Experience of Industrialization Because the first phase of the Industrial Revolution in Britain preceded the general availability of the corporate form by several decades, it is not possible to ascribe Britain’s early lead in industrialization to its system of company law. Even following the enactment of limited liability in 1855, whether through inertia, suspicion of the new legal regime, or otherwise, the majority of mining, engineering, and textiles companies were slow to incorporate. It was only at end of the nineteenth century that incorporation became the norm in these sectors, at the same time as a wave of consolidations and mergers occurred. The comparatively late emergence of the legal infrastructure for enterprise in Britain is also evident in the law governing the employment relationship. The British Industrial Revolution was not marked by a straightforward move from household production to factory labor. Workers resisted the factory in large part because many of the early factories were centered around compulsory workhouse labor for those receiving poor relief, or they copied the same model. Not only did “putting out” survive well into the nineteenth century in numerous industries, but even when production was brought in-house, an “internal contracting” system was maintained under which employers normally dealt with labor intermediaries who, in turn, hired other



family members or “underhands” to work for them. Partly in response to worker resistance, harsh disciplinary laws were passed to control labor. At a point when few manufacturing firms had integrated managerial structures, the criminal law was used as an alternative means of underpinning employer prerogative. Up to the 1870s, there were thousands of prosecutions a year in the industrial heartlands of the north and midlands of England; prosecution rates were driven by the business cycle, increasing in the upturn when labor supply was at its most restricted. The disciplinary emphasis of “master and servant” was to have a formative influence on employment law, on the development of collective bargaining, and on managerial practice. Like limited liability, the master-servant model was also exported; as a by-product of colonization, it spread to most of the common law world in the course of the nineteenth century and also had an influence upon American law during the early phases of industrialization. The effects of this particular exercise in transplantation have been slow to wear off. Long after the development of integrated organizational forms and modern management techniques reduced the need for the penal enforcement of employment contracts, the legacy of the master-servant model is still discernible within the contractual form of the modern employment relationship. The reluctance of organized labor to support the use of legal means to underpin labor regulation, and the resulting preference for voluntarist solutions outside the law, principally in the form of collective bargaining, owed much to a deep-rooted belief that the law was an instrument of the employer “class.”

Status and Contract in the Origins of Continental European Labor Law There is evidence that the nature of enterprise was understood differently in continental European systems from the very early stages of industrialization. Factory owners saw themselves as having “duties as well as the privileges that such a position entails” (Landes 1969: 191). This type of industrial paternalism was not simply a legacy of preindustrial practices, however; it owed much to the scarcity of the labor supply in systems where the rural population continued to have access to the land, and hence to alternatives to waged employment, long after this had ceased to be the case in Britain. [T]he emerging forms of wage labor were grafted onto the traditional Roman law concept of the locatio conductio in the post-revolutionary codes. In relying on the model of the locatio, the drafters of the codes were grouping work relationships with other types of contracts, the effect being to stress that, in common with them, they were based on exchange. Thus labor, or in some versions labor power—as expressed, for example, in the German term Arbeitskraft—became a commodity that was linked to price (not necessarily the “wage”), through the contract. The further consequence was to align the work relationship with the law of things rather than the law of persons: the notion of the personal “subordination” of the worker was absent from the formulae used by the early codes. Thus the codes helped propagate a strongly contractualist notion of the work relationship.

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This basic contractual model was accommodated to the growth of industrial and labor legislation in the course of the nineteenth century in two distinct ways. In the French-origin systems, the power of the state to regulate conditions of work was instantiated within the legal system through the concept of ordre public social, that is, a set of minimum, binding conditions that applied as a matter of general law to the employment relationship. The implicit logic of this idea was that in recognizing the formal contractual equality of the parties to the employment relationship, the state also assumed, by way of symmetry, a responsibility for establishing a form of protection for the individual worker, who was thereby placed in a position of “juridical subordination.” In German systems, by contrast, a “communitarian” conception of the enterprise qualified the role of the individual contract. Contrary to the argument of Botero et al. (2004), the civil law approach cannot be characterized as more regulatory than that of the common law. Thanks to the liberalizing influence of the French Code civil, legal innovation preceded economic development: nearly all the continental systems, including those influenced by the German tradition, acquired a liberal-contractual model of the employment relationship not just in advance of the English common law but, in marked contrast to the British experience, before industrialization affected more than a tiny proportion of the labor force. As industrialization advanced, legal systems responded to the growing wave of labor regulation in ways that incorporated the principle of worker protection while at the same time recognizing the primacy and legitimacy of capitalist modes of economic organization. Thus the civilian approach was different from that of that English common law, but not in the way that the authors of the legal origin hypothesis suggest: regulation was not preferred to contract, it was conjoined with it.

Legal Cultures as “Carriers of History” What we have just been describing is not simply the development of different systems of substantive rules, but the evolution of distinctive legal cultures. However, there is general agreement that legal systems generate commonly understood “ground rules,” or shared assumptions, as aids to the interpretation of the law. Thus the meaning attributed to superficially similar legal texts may differ from one jurisdiction to another according to the prevailing juridical style or underlying assumptions guiding legal interpretation. Thus diversity in the experience of industrialization is embedded in the legal forms that have developed to describe the business enterprise and the related economic institutions of market economies. The influence of legal origin on the present-day substance of labor regulation is the result. If this is the case, we have a rather different explanation for the significance of the law for economic development than that provided by the legal origin school. As we have seen, they have argued that common law systems have an inherent tendency to produce rules that are market-compatible, by virtue of their greater reliance on judicial adjudications and other decentralized forms of law making, in contrast to the civil law, which relies to a greater extent upon centralized regulation and thereby



gives rise to greater potential for governmental interference with property and contract rights. The main problem with this line of argument is that it is not an accurate description of the common law/civil law divide, either in general terms or in the specific context of labor regulation. Civil law judges have considerable power to shape the terms of contractual relationships through the application of open-ended general clauses, such as the principle of good faith, in ways which have no equivalent in the common law. Thus in the civil law, the tendency is for freedom of contract to be socially conditioned when, in common law systems, it is, formally, unconstrained. This fundamental difference in approach permeates many contemporary features of labor and corporate law. However, it is not so much the differences in substantive rules that matter; many of these are transient in nature. The enduring difference between common law and civil law systems operates at the level of the ingrained assumptions and understandings that are deployed in legal analysis, and in the values they serve to perpetuate. Above all, the common law and civil law systems operate on different assumptions about the nature of the enterprise and the role of the legal system in regulating it.

Conclusion We have argued that there is evidence for the long-run influence of legal styles or cultures on economic development, and that enduring complementarities between legal and economic institutions may account for cross-national diversity in such areas as labor regulation and corporate governance. However, existing explanations present an overly static description of inter-country variations, downplaying within-country differences, and tending toward excessively functionalist accounts of existing institutions. We have suggested that a way out of this impasse is via a deeper engagement with historical evidence. The critical causal factor that has shaped the relationship between law and economic development is the timing of industrialization with regard to the emergence of the core legal institutions of market economies. Many of the features associated with the common law approach to labor regulation and corporate governance are, we have argued, the consequence of Britain’s early Industrial Revolution, which began before mature legal institutions for governing the employment relationship and the business enterprise were in place; in France and Germany, this sequence was reversed, with the modernization of the legal order, through the civil codes of the early nineteenth century, preceding industrialization. It is only in the light of this basic observation that the subsequent history of these different “parent” systems can be understood, and their wider influence assessed. The normative implication of our analysis is to reject the claim that any one system represents a uniquely successful path to legal and economic development. For the most part, laws have been matched to national conditions, placing a limit on what can be achieved, or should be attempted, by way of convergence. There is much to be said for a policy position that accepts the enduring nature of this institutional diversity and respects its contribution to the sustainability of market systems.

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Internal Dispute Resolution The Transformation of Civil Rights in the Workplace L auren B. Edelman, Howa rd S. Erl anger, and John L ande

Civil rights law, in particular Title VII of the 1964 Civil Rights Act (Title VII), creates administrative and legal channels for redressing complaints regarding equal employment opportunity and affirmative action (EEO/AA). Employers cannot forbid employees to use these formal legal channels to express their EEO/AA complaints, but they can encourage employees to use internal complaint procedures in an attempt to satisfy complainants and to insulate the employer from lawsuits, liability, and intervention by regulatory agencies. To the extent that employers handle EEO/AA complaints internally, they essentially privatize the adjudication of public rights. This has enormous potential to affect the rights of minority and female employees who claim to be the victims of discrimination, as well as the rights of those (primarily white and male) employees who are accused of discrimination. Similarly, the privatization of EEO/AA complaint handling has the potential to affect both employers’ liability for discrimination and their practices to prevent and deal with future problems of discrimination. Thus, the personnel within organizations who are charged with handling discrimination complaints (“complaint handlers”) can critically affect the impact of civil rights law within organizations. Since the vast majority of EEO/AA (and other) complaints never reach the courts or even administrative agencies, the internal handling of EEO/AA disputes largely determines the nature of the environment that employees work in and the de facto civil rights in employment. Thus, it is especially important that sociologists of law study the construction of EEO/AA (and other) law within the firm. In this article we examine the role of law in complaint handlers’ orientations toward EEO/AA complaints within organizations. In particular, we are interested in how both legal and organizational values shape complaint handlers’ conceptions of EEO/AA law and complaint resolution and the implications of these conceptions for the ways they handle discrimination complaints. To address these issues, we conducted semistructured interviews with complaint handlers in ten organizations. [O]ur focus is on complaint handlers’ working principles and conceptions of EEO/AA complaint handling, which reveal much about the construction and role of law within organization. Abridged from Law & Society Review 27, no. 3 (1993): 497–534.



L auren B. Edelman, Howa rd S. Erl anger, and John L ande

Theoretical Perspectives on Complaint Handling The law and society tradition holds that the formal legal process generates and shapes dispute handling outside of the formal legal process. A view that has greatly influenced recent law and society research holds that laws tend to cast shadows over private negotiations so that, overall, the outcomes of private negotiations should be similar to the outcomes of formal litigation. Organization theory, however, suggests that because of efficiency and legitimacy concerns, the shadow of law may be significantly reshaped in the organizational context. Organizations may create complaint-handling procedures in part to buffer or insulate their core activities from the threats posed by their legal environment. By handling complaints internally rather than allowing them to reach formal legal channels, organizations avoid the cost, time, and harm to public image that may result from litigation. Thus, internal complaint handling enhances organizational efficiency by insulating organizations (to varying extents) from interaction with the external legal system. A complaint-handling procedure is an adaptive mechanism, facilitating organizational rationality in the face of (what is to management) environmental irrationality. The rational perspective, then, suggests that employers’ primary goal in complaint handling will be to keep the complaints out of the formal legal system. Insulating the technical core does not necessarily imply compliance; it may instead imply greater emphasis on grievance resolution without a concomitant effort to reduce discrimination. Institutional organization theory, however, challenges the idea that organizations are motivated only or primarily by efficiency concerns and suggests that there is another important component to organizations’ response to law: normative pressures for compliance both within the organization and in the larger environment. Over time, this process leads to a gradual incorporation of principles of legality or the progressive reduction of arbitrariness. [O]rganizations elaborate their formal structures to create visible symbols of attention to law and legal principles. Discrimination complaint procedures are an example of these symbolic structures; they signify attention to civil rights laws and due process generally. Thus organizations may create discrimination complaint procedures for their legitimacy value as much as for their efficiency value. The literature on organizations, then, offers somewhat diverse views of how organizations will respond to civil rights laws, which in turn have different implications for the internal handling of discrimination complaints. Rational accounts suggest that organizations will attempt to insulate themselves from legal threats and that they are strongly motivated to resist laws that interfere with traditional managerial prerogatives. Institutional arguments suggest that organizations are responsive to their legal environments and adopt institutionalized practices and structures for their legitimacy value. This implies that managers charged with handling discrimination complaints may seek methods of compliance that both minimize the interference of legal requirements and demonstrate attention to legal ideals. The literature on alternative dispute resolution (ADR) suggests that even if law exerts a shadow over organizations, the informal nature of dispute resolution within



organizations is likely to change the focus of complaint handling from legal rights to the individual disputants’ problems or interests. [M]any of the issues raised by that literature also pertain to employers’ internal complaint procedures, which might be called internal dispute resolution (IDR). Like most forms of ADR, IDR is less constrained by formal legal procedure, statutory rights, and precedent than are courts. Proponents of ADR . . . see the courts as overly concerned with legal rights. They contend that parties have interests or needs that often differ from or go beyond legally justifiable claims and that mediators can help parties to discover their real interests, which may differ from the interests that the parties articulate. Whereas proponents see the shift from rights to needs as beneficial to all parties, critics of ADR argue that legal rights are important especially when they protect people who do not enjoy political and social power and that ADR may seriously undermine those rights by ignoring them, lowering parties’ expectations of what they are entitled to, or changing the way in which disputes are framed. The ramifications of the shift from rights to interests and needs goes beyond the immediate case: claims based on rights are generalizable whereas claims based on interests and needs are more often individual in nature. To the extent that dispute resolution forums transform disputes from rights claims to individual problems, they depoliticize those claims and preclude future claimants from grounding their claims in precedent. These arguments have important implications for the employment context because they suggest both that there is a potential for IDR to undermine legal rights and that the orientation and discourse of complaint handlers may critically affect the scope of claims and of remedies. To the extent that IDR complaint handlers focus on the parties’ needs or interests rather than on rights, and to the extent that IDR complaint handlers employ the logic and discourse of therapy or morality rather than of rights, especially in the domain of EEO/AA law, there is a potential for the rights of minority and female employees to be undermined substantially. Claims framed in terms of rights are often absolute: in theory, law grants minorities and women in the workplace an absolute right not to be discriminated against by their employers. When claims are framed in terms of interests rather than of rights, they become more conducive to compromise, which is important in modes of dispute resolution like mediation where resolution requires agreement between the parties. When the logic of problems and therapy is brought to bear on employees’ claims of discrimination, the claims are effectively individualized and depoliticized. In cases where one party (in this case, the employee) has a legitimate rights-based claim, then, the shift from legal logic to the logic of interests, needs, or problems requiring therapy can undermine both legal rights and the public policy underlying those rights. Dispute handling in work organizations raises several distinctive issues. First, . . . IDR complaint handlers are both adjudicators (or mediators) and management representatives. Within the organization, they play the role of “neutral,” but should the complainant file an external complaint, the complaint handler who investigated the complaint is likely to assist or represent the employer. Thus, complaint handlers may be cautious about “finding” illegal discrimination because to do so could hinder the organization’s position should the complainant file an external complaint.


L au re n B. E delman, Howa rd S. Erl anger, and John L ande

A second and related point is that even within the organization, complaint handlers’ responsibilities and career interests require them to consider many extralegal factors. On the other hand, employers’ interest in avoiding the costs and adverse publicity of litigation may lead them to take actions to appease aggrieved employees so that in some instances they may grant concessions that are not legally required. Further, employers may view disputing as a feedback mechanism that facilitates management. Gutek (1992), for example, argues that disputing is normal and that it may help management to recognize problems and recuperate from a decline.

Data and Methodology Our research seeks to explore the tension between legal and organizational goals in the context of workplace dispute resolution. Thus, the general question we address is: What roles do law and organizational goals play in organizational complaint handlers’ orientations toward EEO/AA complaints? Our data are based on semistructured interviews with management personnel who handle internal EEO/AA complaints in ten large organizations. We spoke with the person in each organization who was principally responsible for handling EEO/ AA complaints and setting policy regarding the handling of these complaints.

Findings Our research suggests that law plays a very peripheral role in complaint handlers’ orientations toward discrimination complaints. Although complaint handlers are concerned with avoiding external complaints and litigation and are therefore attentive to what courts would do in a given case, they tend to subsume legal goals under managerial goals. Although a major goal of legal forums is to define and announce the boundaries of compliance, the overriding objective of IDR is to maintain the smooth functioning of the organization. Thus, complaint resolution is seen as synonymous with the traditional managerial goal of smooth employment relations, and allegations of rights violations are often recast as typical managerial problems. The result is that . . . the focus is more on the resolution of conflict than on the realization or definition of legal rights or ideals, and conflicts over rights are often transformed into interpersonal problems. Management Logic and the Focus on Complaint Resolution Dispute resolution is also seen as beneficial to the smooth functioning of the employment relation. Two examples from our interviews demonstrate these concerns. Obviously we’re trying to keep things out of the legal system and resolve them on an internal basis. So certainly there’s a good business reason for having this in addition to just a good way to treat your employees. [Clinic]



You’d like to be able to handle stuff internally because it’s less burdensome to the organization in terms of resource drain, because it is a fair amount of time and energy that has to go in the documentation being sent and there’s always multiple letters and things that go on. And so from an expedient standpoint we’d rather deal with it internally. [Insurance]

Consequences for Complaint Handlers’ Construction of Civil Rights Law Although there was some variation among the complaint handlers in their awareness and apparent understanding of civil rights law, it was striking that none of the complaint handlers adopted formal legal standards in their internal dispute handling. Several pointed out that they were not lawyers and could not be expected to be conversant with legal details. Rather than adopting the calculus of the courts and EEO agencies, complaint handlers simply construe law as a requirement of fair treatment. The focus on fair treatment is evident in the following quote from a complaint handler who said that his understanding of law came from interpretations in professional journals and by legal counsel. I think the fact that the laws exist give us, if you want, the hammer, the tools necessary to enforce—not the law so much but the fact that we believe in fairness, consistency, for this open-door mutual respect kind of situation. You can’t just nilly-willy pick situations and say, “We’ll do it one way this time and the next time we’ll do it this way.” You tend to start focusing on things like fairness and due process and consistency in your approach. [Bank]

When asked to elaborate what fairness meant, complaint handlers had a variety of responses, but in general they were based more on broad notions of procedural fairness than on the substantive requirements of EEO/AA law. They mentioned consistent treatment, prior notice of rules, protection from retaliation, giving the complainant an opportunity to be heard, and impartial consideration of complaints. Four complaint handlers suggested a more substantive element of fairness: they said that the resolution should be fair. Only three complaint handlers said that fairness meant consistency with law. [C]onstruing law as a fair treatment requirement renders law quite consistent with general principles of good management; thus, complaint handlers need not view law as a new constraint. The following [example illustrates] the nexus complaint handlers draw between compliance with law and good management. The objective is to assure that our work environment is a positive one that maintains dignity of all employees and doesn’t subject any employee to anything that we feel is of a harassing, discriminatory, or intimidating environment or situation and that we resolve it based on those premises. It’s a win-win kind of thing; it’s the right thing to do for the employee in relationship to the expectations and the work environment. [Insurance]

Although complaint handlers’ construction of EEO/AA law leads them to be quite attentive to the need to treat employees consistently, it also shifts the focus from legal


L au re n B. E delman, Howa rd S. Erl anger, and John L ande

rights to good organizational governance, thus deemphasizing the specific legal goals of racial and gender equality. The Transformation of Rights Claims to Management Issues Just as the construction of law is itself subsumed under managerial goals so that compliance becomes synonymous with good management, complaints of discrimination tend to be redefined as indications of managerial problems. Complaint handlers tend to identify typical management problems, for example, inadequate or inconsistent management or interpersonal difficulties, as the problems generating discrimination complaints and thus to recast discrimination complaints in those terms. The following examples illustrate some of the ways in which complaint handlers recast discrimination complaints as poor management problems, personality clashes, or both. [Sexual harassment] had nothing to do with it; it was a larger work group issue in terms of how these people work together and so I brought in a psychologist who worked with the group on how to . . . work together as a team. It wasn’t that this person was putting down women, he was putting down everybody. [Clinic]

I can think of one case about four months ago where we had a person of color, female employee who was complaining about her manager. And when we did the investigation, we couldn’t really say that it was discrimination. [What we] kind of found out is . . . it really wasn’t that he didn’t like black females or she didn’t like white males, it was the difference in the management style, the difference in the cultural background. [Bottling]

Complaint handlers do not always recast discrimination complaints as management or personality problems. They also offered examples of situations in which they agreed that there had been discrimination. In our sample, these were mostly sexual harassment cases where either there were corroborating witnesses or the respondent admitted contact with the complainant. It is important to note that when complaint handlers do recast discrimination complaints as typical managerial problems, they try to resolve the problem. In this regard, IDR differs substantially from legal forums where, if adjudicators decide that a complainant did not present a valid legal claim, they dismiss the case. Because internal complaint handlers’ objective is to ensure smooth organizational operations, they are willing typically to handle any type of complaint that presents a managerial concern. Complaint handlers’ interest in resolving all complaints that could disrupt organizational activities suggests that they will resolve cases actually involving discrimination (often labeling them managerial problems), but they will also resolve cases that do not actually involve discrimination. But at the same time, organizational concerns tend to eclipse the shadow of law and, as critics of ADR argue, to undermine the legal right to nondiscrimination.



Complaint handlers in organizations not only equate law with good management but also interpret many claims of law violation as instances of bad management. Impact on Procedure In their efforts to remedy managerial problems and avoid litigation, the internal complaint handlers reported that they conduct thorough investigations of all complaints they receive. Unlike legal forums, where a complainant may drop a complaint and thereby stop the investigation process, complaint handlers in six of the ten organizations report that they investigate discrimination complaints whether or not the employee wants them to. This approach follows from management logic: managers’ task is to detect and remedy managerial (and potential legal) problems and they, rather than complainants, control the process. In sum, complaint handlers’ general concern for fair and thorough investigations is evident in their discourse and consistent with the logic of management: thorough investigations are more likely to allow them to detect problems that might interfere with organizational productivity. Because their primary focus is not on the determination of whether rights violations have occurred, however, they do not incorporate specific due process protections that are meant to constrain bias. Impact on Remedies [O]ur data suggest that unlike remedies in the legal system, which are aimed at compensating the plaintiff for loss due to illegal discrimination and ordering remedial employment actions, remedies in internal complaint forums are primarily geared toward repairing and improving management techniques and relations between employees and their supervisors. And whereas decisions in (adjudicated) legal cases involve public declarations that the employer discriminated, decisions in cases handled internally tend to be private and discreet. Remedies in IDR may be well designed for redressing typical management problems. However, they yield a potential to undermine legal rights by failing to define and articulate the boundaries of those rights and by indicating to employees that problems are interpersonal, psychological, or managerial in nature rather than legal. To the extent that employees accept these classifications as the underlying causes of their problems, they may be less likely to think that their complaints merit legal redress.

Discussion and Implications Complaint handlers’ conception of dispute handling appears to subsume law within the broad confines of the managerial realm, thus transforming EEO/AA law into a diffuse standard of fairness. Fair treatment is seen as a means both of compliance and of attaining a productive business environment with good working relationships and high employee morale.


L au re n B. E delman, Howa rd S. Erl anger, and John L ande

This organizational perspective leads complaint handlers to approach EEO/AA dispute handling from a very different perspective and with very different objectives than do legal forums. Legal forums use individual cases to define the vague concept of discrimination, to articulate the nature of and limits of employees’ rights under the law, and to fashion appropriate remedies for particular violations of the law. In contrast, complaint handlers’ objective is complaint resolution, as a means of restoring good work relations and avoiding legal intervention. The legal right to a nondiscriminatory workplace in effect becomes a “right” to complaint resolution. Whereas the rhetoric of rights is central to courts and administrative agencies, the rhetorics of management and therapy are far more pervasive in organizational complaint handlers’ accounts. In contrast, there is almost no language about legal rights. By deflecting attention from legal rights and focusing instead on organizational problems, complaint handlers’ conception of dispute resolution privatizes and depoliticizes the public right to equal employment opportunity. Individual complaints are rarely linked to public rights and ideals, and the complaint resolution process does not involve public recognition of those rights or public articulation of a standard to which other employees may appeal. Thus, each employee must renegotiate the meaning of discrimination. This study also elaborates the nature of organizational mediation of law. Even in its peripheral role, law gradually modifies managerial norms and discourse; although organizations do not adopt formal legal standards for discerning discrimination, civil rights law has solidified managers’ attention to fairness and consistency in organizational governance. But at the same time the infusion of organizational values in internal dispute resolution produces a transformation of civil rights in the workplace. As courts review and (in some cases) legitimate organizational actions and the results of dispute handling, the symbolic structures that employers create to demonstrate compliance become the vehicles for the infusion of organizational norms and values into law. Thus, once in the organizational realm, law cannot contain its own appropriation; rather it is shaped and reshaped by management ideology and discourse.


The Privatization of Public Legal Rights How Manufacturers Construct the Meaning of Consumer Law Shauhin A. Talesh

This article demonstrates how the content and meaning of California’s consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. Specifically, the research question I examine is: How and under what conditions can business organizations shape the meaning of legislation, once it is enacted? I focus in particular on the capacity of private business to influence how and where disputes over public legal rights are resolved. [B]usiness organizations across a wide variety of industries are increasingly engaged in “public” decisionmaking in private settings. Private entities are actively governing themselves while simultaneously delivering services and benefits traditionally administered by public entities. Private organizations’ expanding role even includes using internal and alternative dispute resolution structures to adjudicate civil and consumer rights and remedies created by legislatures. In an era where Americans are increasingly likely to encounter law in private alternative disputing forums sanctioned by the state, it is particularly important to learn how business organizations can shape the meaning of laws enacted by the legislature and determine where public legal rights and remedies are resolved. This article develops an “institutional-political” theory that integrates political science studies of how businesses influence public legal institutions with neo-institutional studies of how organizational responses to law are shaped by and through organizational fields. I show how organizations’ capacity to shape the content and meaning of law in the legislative context results both when organizations create and institutionalize dispute resolution venues within their organizational field and when organizations directly engage in political mobilization and lobbying tactics.

Methodology In order to examine how automobile manufacturers shaped the meaning of law at the legislative level and determined where public legal rights were adjudicated, I Abridged from Law & Society Review 43, no. 3 (2009): 527–62.



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analyzed approximately 4,000 pages of legislative history concerning California’s two consumer warranty protection laws: the Song-Beverly Act and the Lemon Law. To develop my initial sampling frame, I located (1) any documents relating to the initial creation of the Song-Beverly Act in 1970, and (2) any documents relating to the enactment of the California Lemon Law in 1982 or subsequent amendments thereafter until 2006. Next, I screened the documents for relevance. I defined as relevant any documents concerning (1) consumer, manufacturer, or legislative involvement in the creation of the Song-Beverly Act; or (2) the creation of the Lemon Law in 1982 and/or amended provisions relating to either the establishment of a legal presumption or the creation of dispute resolution procedures. My purpose was to identify and closely examine the complete history of the creation and codification of private dispute resolution procedures into the Lemon Law. I was particularly interested in examining this statute because it establishes a “legal presumption” of what constitutes a “reasonable number of attempts” for automobile manufacturers to fix warrantable defects. Consumers are eager to invoke this statutory provision because it establishes specific conditions under which consumers are entitled to full restitution or replacement of their vehicles. I identified approximately 1,500 pages of relevant documents. Once my initial screening of documents was complete, I employed “process tracing” (PT) methods and carefully analyzed the legislative history. I relied on qualitative content analysis of each document and traced the content and requirements of proposed laws against what was ultimately enacted into law. I paid particular attention to the written dialogue and struggle that took place among manufacturer and consumer advocacy groups and the legislature. I explored advocacy coalition formation and behavior and venue creation by manufacturers over time.

An Institutional-Political Analysis of How Manufacturers Construct the Meaning of California’s Consumer Warranty Laws This section demonstrates how automobile manufacturers shaped the content and meaning of California consumer protection laws. Manufacturers created and institutionalized dispute resolution structures within their organizational field and then used interest group tactics to lobby the legislature to codify such structures into law. Stage 1: The Song-Beverly Consumer Warranty Act—Creating a “Legal Weapon” for Consumers California’s consumer warranty statute was an outgrowth of investigations and public hearings by the California Senate Business and Professions Committee in November 1969. The committee concluded that, aside from automobile repairs, the single largest category of consumer complaints was warranty problems. In addition to warranties being confusing and misleading, consumers complained that manufacturers and retailers



rarely accepted responsibility for making repairs under their warranties. The largest number of warranty complaints concerned automobile dealers and manufacturers. The committee inquiry convinced California State Assembly Senator Alfred Song that consumers “need legal protection” (Song press release, 2 Feb. 1970). As the leading proponent and coauthor of the Song-Beverly Act, Senator Song specifically indicated that the purpose of creating a consumer warranty protection law was to establish “legal weapons” for consumers (Song letter, 2 July 1971). If manufacturers wanted the advertising and marketing benefits of issuing warranties at the time of sale, manufacturers needed to eliminate the practice of making warranties “little more than sales gimmicks” (Song letter, 10 Aug. 1970; San Francisco Chronicle, 25 June 1970, p. 12 [quoting Song]). Not surprisingly, the original Song-Beverly Act had strong public support among California residents. Private businesses, however, opposed the bill, claiming the law was “poorly drafted,” “full of ambiguities making the measure difficult to interpret,” “an unnecessary restriction on big business,” and “absurd and ridiculous” (Legislative enrolled bill report to Governor Reagan, 11 Sept. 1970; Legislative Commerce and Public Utilities Committee analysis, 3 Aug. 1970; Lee Stoddard, Speed Queen letter, 12 Feb. 1971; Raypack Inc. letter to Governor Reagan, 12 Aug. 1970; Song letters, 3 and 10 Aug. 1970). Manufacturers indicated that the availability of civil penalties would clog the court system and put them out of business. However, once it became clear the Act was likely to pass despite contentious opposition, those opposing the bill participated in the process. Senator Song’s description of his interactions with manufacturers highlights the process whereby business values were injected into the revision process: Once they realized that I was determined to pass SB 272, they sat down quietly with me and we went over the bill section by section, word by word. They admitted the need to end warranty abuses, and I accepted a series of amendments that, without weakening the bill, brought it more in line with current business practices. (Song senatorial report 1990, pp. 1–4)

The legislative history did not indicate precisely what changes or revisions manufacturers requested in order to fall more in line with current business practices. The final bill codified into law, however, reduced recovery for civil penalties from three times actual damages to two. It also indicated that manufacturers and retailers would only be liable under the Act if they had been given a “reasonable number of attempts” to fix defects. This provision, however, was not specifically defined in the Act. Stage 2: Manufacturers’ Mediation of California Consumer Rights through Institutional Venue Creation Despite lofty goals, the Song-Beverly Act was not entirely effective during the 1970s. Testimony at the California State Assembly Committee’s hearings in December 1979, revealed a high level of consumer frustration with new cars and warranty performance. Manufacturers rarely acknowledged that they were given a reasonable number of attempts to fix a defect under warranty, especially since the


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Song-Beverly Act did not define the term. As a result, full restitution or replacement of new automobiles rarely occurred. In 1980, California Assemblywoman Sally Tanner decided to clarify and expand the Song-Beverly Act by proposing a specific law, referred to as the California “Lemon Law,” which defined what constituted a “reasonable number of attempts” for new motor vehicles. Because automobiles were the primary source of complaints from consumers and the second most expensive purchase for consumers, Assemblywoman Tanner felt that it was necessary to add some teeth to legal protections afforded consumers. Manufacturers strongly objected to the Lemon Law and lobbied against the proposal. They alerted Assemblywoman Tanner and the rest of the legislature through letters and detailed memoranda that, in response to the Song-Beverly Act’s passage in 1970, automobile manufacturers had created internal dispute resolution processes to resolve consumer disputes. In particular, the three major American automobile manufacturers, Ford, General Motors, and Chrysler, submitted reports detailing the goals and structure of their programs to the legislature. With some variation, these dispute resolution processes consisted of panels of three to five persons, often including manufacturer and dealer representatives, a mechanic, and a consumer advocate. Diffusion of institutional venues among manufacturers and dealers occurred in the 1970s and 1980s. More than 2,000 automotive dealers across the United States jointly funded and controlled a third-party dispute resolution process to resolve warranty complaints. Manufacturers often used the Better Business Bureau or other third-party organizational surrogates to administer these programs. Manufacturer advocacy to the California legislature was also uniform. Led by Ford, General Motors, and Chrysler, manufacturers without exception framed the purpose and benefits of their dispute resolution processes in terms of legitimacy, efficiency, informality, and customer satisfaction as opposed to consumer protection. Manufacturers collectively claimed that their institutional venues were primarily created to benefit consumers and provided less costly, more effective ways of resolving disputes. Despite not providing consumers with a right to oral presentation, Ford noted the legitimacy such programs provided “as self-regulating mechanisms.  .  .  . Their very existence means that our dealers and our own personnel are perceived as taking the extra steps required to resolve issues to the satisfaction of customers” (Ford Consumer Appeals Board memo, p. 2). [I]nternal dispute resolution processes provided a means through which manufacturers’ values and norms influenced the structure and content of the organizational field far more than did consumers’ interests. Stage 3: The Legislature Codifies Manufacturer Institutional Venues into the Lemon Law After the original Lemon Law was narrowly defeated in 1980 and 1981, the Lemon Law . . . was enacted in 1982, but with significant changes from the original proposal. In order to pass the bill, the California Legislature deferred to and codified the logic of manufacturers’ valuation of institutional venues without any apparent formal review



of these programs. Under the Lemon Law, a consumer was entitled to a “legal presumption” that the manufacturer received a “reasonable number of attempts” if (1) the same nonconformity had been subject to repair four or more times within the first 12,000 miles or 12 months from purchase, or (2) had been out of service by reason of repair for a cumulative total of more than 30 (not 20) calendar days within the first 12,000 miles or 12 months from purchase. A manufacturer was permitted to rebut the presumption at trial by showing that its actions in a particular case [were] reasonable. The most significant changes, however, concerned the codification of manufacturers’ dispute resolution processes into the Lemon Law. Specifically, the legal presumption as to what constituted a “reasonable number of attempts”—the main purpose of the Lemon Law—could not be asserted in court unless the consumer first resorted to the existing “qualified third-party dispute resolution process” to the extent that a manufacturer maintained one. Thus, legal protections afforded under the Lemon Law were contingent upon using manufacturers’ third-party dispute resolution processes if they existed. Moreover, in a display of deference to manufacturer venues, the Lemon Law indicated that if the consumer chose to reject the arbitrator’s ruling and sue, the arbitrator’s findings could be admitted at trial without any need for evidentiary foundation. The Lemon Law also provided that no civil penalties or attorneys’ fees could be recovered in dispute resolution processes unless the manufacturer-run program permitted such recovery. Further, unlike the all (restitution, replacement) or nothing (no award) remedies at trial, arbitrators were permitted to award consumers the opportunity to allow manufacturers another repair attempt. Stage 4: Conflicting Tensions of Symbolic Structures and Substantive Compliance Although the final codified Lemon Law encouraged consumers to use automobile manufacturer–sponsored institutional venues, the Lemon Law did not establish a means of ensuring that manufacturer-run programs operate fairly. Consumers were funneled into these processes by manufacturers claiming they were complying with the minimum requirements. However, there was no regulatory or monitoring oversight. Not a single manufacturer formally qualified its program under the Lemon Law after its passage in 1982. The legislative history indicates that many consumer groups complained to Assemblywoman Tanner and the California Department of Consumer Affairs in the mid-1980s. In 1987, Assemblywoman Tanner developed what she termed a “due process” bill. She proposed (1) establishing a program in the California Bureau of Automotive Repair to certify manufacturer arbitration programs, and (2) investigating consumer complaints regarding the qualified program’s failure to follow its own written procedures. Although this bill ultimately passed, it was not without significant revisions. Labeled the “Tanner Compromise,” manufacturers agreed to (1) certify their programs, (2) “take into account” statutory standards, (3) provide dispute resolution panels with copies of the Lemon Law, and (4) require panel familiarity with the law (David


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Collins, General Motors, 16 Jan. 1990). However, arbitrators retained flexibility and final authority regarding the standards, statutory or otherwise, that they chose to ultimately apply in particular cases. Stage 5: Deference to Dispute Resolution Procedures—Legislative Logic Converges with Manufacturer Logic Over time, amendments the legislature made to the Lemon Law had less to do with protecting consumer rights and more to do with legitimating institutional venues into law and consequently, bolstering the degree to which consumers, manufacturers, legislators, and courts deferred to institutional venues designed and funded by manufacturers. Core legal ideals about impartiality and protecting formal legal rights blurred with manufacturer logic regarding institutional venues framed as more efficient and informal. In 1989, the Lemon Law was amended to clarify the dispute resolution certification process. The amendment established that when a Lemon Law case went to court, only decisions from a qualified third-party dispute resolution process certified by the state were admissible into evidence without further foundation. Stage 6: Judicial Deference—Organizational Logic Overlaps with Judicial Logic Because many Lemon Law disputes have been privatized, there are only four published California court cases substantively interpreting manufacturer-sponsored dispute resolution processes. However, the four cases exemplify the argument that consumer warranty law is endogenous, i.e., much like legislative enactments, judicial interpretations of consumer warranty violations incorporate the presence of institutionalized venues as evidence of fair treatment, and a public policy concern for quick, informal resolution of consumer disputes. Judges, these cases suggest, reflexively interpret consumer warranty protection law not as protecting legal weapons, but as a system for keeping cases out of court in the hope that consumers and manufacturers can work problems out in private dispute resolution venues. Stage 7: The Current State of Lemon Law Dispute Resolution Since 1992, there has been very little substantive change to the dispute resolution provisions of the California Lemon Law. Today, all 50 states have consumer warranty laws. Many states channel consumers into dispute resolution provisions as a prerequisite to claiming a legal presumption in court. Over the course of 35 years since [enactment of] California’s groundbreaking consumer warranty law, manufacturers have been able to develop and legitimate an alternative dispute resolution system, with the blessing of the state, which largely transforms and privatizes legal rights to a point where manufacturers are, in effect, the legislature and court. This is a critical yet largely unrecognized mechanism through which “the ‘haves’ come out ahead” (Galanter 1974: 95).



Overlapping Organizational and Legal Fields and the Privatization of Consumer Rights Organizational construction of law in the legislative context results from both institutional legal meaning-making in the organizational field and direct political mobilization and lobbying. Private institutional venues created within manufacturers’ organizational field shaped the meaning of law among public legal institutions such as legislatures and courts. As organizational and legal fields and logics overlapped and blurred, institutionalized organizational ideas and norms about the meaning of consumer rights and what constitutes compliance with consumer protection laws seeped into the logic of the legal field. California’s consumer protection laws were intended to limit manufacturers’ ability to perpetuate social and economic advantage through the manufacturer-consumer relationship. Although the Song-Beverly Act (1970) and the Lemon Law (1982) altered the legal environment by changing public perceptions and attitudes about consumer entitlement and rights, the ambiguity of these laws gave manufacturers wide latitude to construct their legal environment. Manufacturers created internal dispute resolution procedures as evidence of fair treatment and formed advocacy coalitions that lobbied the legislature about the “legal value” (Edelman et al. 1999: 447) of the procedures. Manufacturers, similar to employers, responded in a manner that addressed both environmental demands (public perception, reputation, legitimacy) and organizational business interests (efficiency, fewer lawsuits, informal resolution). As manufacturer dispute resolution venues spread among manufacturers over time, the venues became institutionalized by organizations and legitimated by legislative codification. The legislative process became an important domain for importing ideas from the organizational field into the legal field. Amendments to the Lemon Law were less about preserving consumer rights and more about developing ways to legitimate these organizational structures without extensive review and oversight. Courts followed the legislature’s lead by indicating that the purpose of the Lemon Law was to assist parties in resolving disputes informally. Thus, courts were relevant only as a last resort even though the Song-Beverly Act’s and the Lemon Law’s original purpose was to arm consumers with legal weapons attainable in court. The legislature’s and courts’ perceptions of manufacturer institutional venues as efficient and the proper forum for these conflicts was culturally conditioned around manufacturers’ norms and beliefs that private dispute resolution was the appropriate mechanism for conflict resolution. Manufacturers constructed the meaning of laws designed to regulate them and transformed laws intended to provide consumers powerful rights into a codification of industry practices. When the legislature and courts incorporated institutionalized ideas from the organizational field into statutes and case decisions, California consumer warranty laws became endogenous. Manufacturers, like employers, do not simply resist, ignore, or obey ambiguous laws, but instead they construct compliance in a manner that serves their rational and legitimacy interests. Legislative and judicial deference to organizational


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responses to law had a powerful effect on the meaning of consumer rights. In particular, public legal rights created by the legislature were redefined and controlled by private organizations. Consumer rights have been redefined in powerful ways. First, if a manufacturer maintains a dispute resolution process, the consumer must use the process in order to claim the “legal presumption” in court that a manufacturer has been given a “reasonable number of attempts.” Second, simply by establishing a dispute resolution procedure, manufacturers create the potential for resolving disputes without providing full restitution or replacement (the only awards consumers are entitled to in court), paying plaintiffs’ attorneys’ fees (which consumers are automatically entitled to in court should they prevail), and paying civil penalties up to twice the actual damages. Instead, one final repair attempt can be “awarded” in favor of consumers. Third, if the manufacturer prevails in the private process, the manufacturer now contains a legal weapon, namely, the arbitrator’s findings, which are admissible in court without evidentiary foundation should the consumer decide to sue. The fate of California’s consumer protection laws as mechanisms for social change poignantly demonstrates the paradoxical role that law plays in American society. The legislature initially provided consumers with weapons but then limited the practical effect of these weapons when it made them contingent on the use of manufacturer dispute resolution processes. It is important to note that manufacturers’ eagerness to privatize the process is not likely driven by wanton disregard for the law or lack of concern over consumer warranty problems. The legislative history suggests that manufacturers believe that these processes are better for the consumer because they are more informal and efficient. Manufacturers also believe that these processes free the court system of these cases. However, manufacturers’ ability to control consumer warranty rights through private dispute resolution procedures transforms and potentially undermines formal legal rights in several ways. First, the punitive, compensatory, and deterrence goals of consumer protection laws may remain unfulfilled by these procedures. Manufacturers frame a new rights rhetoric geared more around therapeutic healing (letting the consumer air frustrations) and problem-solving (giving the manufacturer one final repair attempt) than substantive relief obtainable in the court system (restitution, replacement, attorneys’ fees, and civil penalties). At one point, General Motors admitted that only 250 of its 1,000 arbitrators were lawyers and purposely instructed its arbitrators not to rely on law when addressing disputes (G.M. letter, 8 July 1987). Second, an unfair dispute resolution process together with an unfavorable ruling may convince some consumers that further legal action is unwarranted or futile. The most significant way that manufacturer control transforms legal rights is that legislatures and courts view these institutional venues themselves as evidence of good faith on the part of the manufacturer when evaluating whether a manufacturer’s failure to repurchase was willful.

Part I I I

Lawyers and Legal Work

Everyone’s life is touched daily by law, directly and indirectly. But social inequalities and the dramatic complexity of modern life can make “the law” appear distant, foreign, even alienating. Like doctors, people often need lawyers during the worst moments of life, and in those moments lawyers can wield considerable power. As intermediaries between individuals and the formal organizations of law, these “priests at the temple” are an important part of how people understand law, relate to courts, and experience justice. A special and continuing goal of law and society scholarship has been to examine the roles of lawyers in people’s lives and examine the part played by social forces in their work. Law and society scholars cannot claim credit for discovering the significance of lawyers and offering a critical perspective on their activities. In the institutions of law across societies and over time, certain work must be performed, and whoever has filled these roles has claimed status and privileges. They have also received scorn. An enduring problem, then, has been to weigh the contributions of lawyers to individuals and communities against the benefits they accrue to themselves. The notion of a legal “profession”—with roots to medieval times (Brundage 2008) and a strong legacy in common law legal systems—gives lawyers a special standing, with a degree of autonomy from state control, and greater status and economic rewards, in exchange for which lawyers develop expertise and agree to regulate themselves with ethics and obligations to the public good. The relatively recent idea that lawyers have a duty to provide “pro bono” legal work—more formally, pro bono publico, or “for the public good”—reflects this “grand bargain,” whereby lawyers provide services and access to justice for those otherwise unable to afford it. Lawyers are not the only occupational group to have claimed the status of “professionals”—doctors, clergy, and the military have attempted the same—though in many places they have done so particularly effectively. When we shift attention from a general account of professions to understanding patterns within the performance of legal work, we see the importance of lawyers’ relationships to clients, institutions, and society and how these relationships influence legal practice. Students who are considering legal careers today may sense this better than anyone: where, in fact, are the great rewards of becoming a lawyer? The journey from elite law schools to the corridors of political power or a profitable private practice is difficult and uncertain. The fortunes offered by other routes are even more fickle. Lawyers individually and the legal profession collectively are not masters of their domains, but partake in a contest for status. We begin this section with articles that foreground the stratified nature of the legal profession. 119


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Understanding status variations among lawyers may get us to question of whether the legal profession can act as a monolithic entity. Certainly, path breaking research into solo practitioners (Carlin 1962) and among the lawyers of Chicago, Illinois (Heinz and Laumann 1982) helped law and society scholars see important patterns of relationships that influence how the legal profession operates. Adding in social forces and the variable of time breaks down even further the notion of a single legal community, asking us to consider how the relative position of lawyers to their clients or institutions influences their power. With the lawyers of a single country being so diverse, it becomes important to consider factors such as demographics (e.g., women in the profession), practice setting (big law firm lawyers, solo practitioners, government lawyers, lawyers working “inhouse” with companies and organizations), and practice area (such as criminal defense, tax law, civil rights law, or any of many specialties). Notwithstanding all the differences associated with the significant variations of role and status among lawyers, there remains a professional identity with a core set of values. Foremost among these values, both rhetorically and substantively, is justice. Can lawyers make a difference in the realization of justice? Although lawyers and the work being done in the world’s largest law firms, predominantly in major commercial centers, unquestionably attract much attention, we have much to learn from the lawyers working on Main Street, in the government, and in all corners of the globe. For instance, the roles of lawyers in civil rights movements provide the opportunity to observe the struggle against legal, social, and political inequality. “Cause lawyers” who work with clients and interest groups in pursuit of social change (Sarat and Scheingold 1998, 2006) may be distinctive among lawyers and hold special status in the popular imagination: lawyers so committed to the core value of justice that their career seems driven by a singular value-based vision. As lawyers think of their work beyond the representation of particular clients, how do they shape the legal system’s pursuit of justice? What fosters this role for lawyers, and what might be its limits? Together, the articles in this section and the questions they address give an opportunity to reflect on the broader questions that confront the legal profession. Scalded by criticism, there has been great hope that working for a greater good will help individual lawyers find personal satisfaction, and bring the legal profession collective redemption. How does hierarchy and inequality within the profession, or between professionals and their clients, affect the potential to uphold the noblest ideals that we might attach to law? When, if ever, does the legal profession live up to these weighty expectations?


Do Rankings Matter? The Effects of U.S. News & World Report Rankings on the Admissions Process of Law Schools Michael Sauder and Ryon L ancaster

[T]here has been a great increase in the number of rankings of educational institutions published by widely circulating magazines and newspapers both in the United States and internationally. Part of a general trend toward increased accountability and transparency through the development of social measures, this proliferation of rankings has generated much concern about their validity, how students use them, and how the behaviors of schools are changed in reaction to them. Nowhere is this concern more palpable than in the field of legal education. Perhaps because there is a single publication that dominates the field of law school rankings—U.S. News & World Report (hereafter, USN)—or because every accredited law school (as opposed to just the top 25 or top 50 schools in most other fields) is ranked on a single dimension, law schools and their governing organizations have made very public efforts to caution their constituencies about and discredit the rankings. The question of the effect of these rankings, however, is an important one. Rankings, in the language of economists, act as signals—observable indicators, such as price, advertising, or warranties, of the underlying quality and properties of that which is being represented. Signals, according to this view, are especially valuable in markets such as legal education, where quality is hard to measure and information is difficult for outsiders to gather themselves. Thus, rankings are especially useful to prospective law students because they provide clear (although, as we will discuss below, not necessarily accurate) indications of the underlying quality of law schools, a function that both proponents of rankings and the rankers themselves cite as sufficient justification for the rankings. But the relationship between the signal and the quality it is signaling is not always pure. For example, recent work by economic sociologists has pointed out that signals often become decoupled from what they are supposed to represent and can affect the behavior of actors independent of the underlying quality that the signals are designed to indicate. [S]etting aside questions of accuracy, does the process of communicating these signals itself have independent effects on the objects it is supposed to be measuring? Abridged from Law & Society Review 40, no. 1 (2006): 105–34.



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Signaling theory assumes that this communicative process is a neutral one; in the case at hand, this theory would posit that the signals produced by rankers simply reflect law school quality as they, the rankers, define it. But given the extremely precise distinctions made by the rankers, and in light of recent research documenting the powerful symbolic effects of quantification and commensuration, whether or not the communication of these signals has an independent effect on the institutions it is measuring—by, for example, amplifying small differences between schools—becomes a question of growing relevance as rankings of all sorts proliferate within and beyond the legal world. In this article, we conduct a statistical analysis of law school rankings to address both the practical and the theoretical issues outlined above. First, using school-byschool applicant data and ranking data from USN, we analyze whether the rankings have affected the admissions process at law schools. Here, we focus on two questions: (1) is the behavior of prospective students affected by a school’s USN rank? and (2) is the behavior of law schools altered in response to their rank? Next, we use the same data to examine whether the signals produced by the rankings affect the quality of a school’s applicant pool independent of other factors. We do this by testing whether changes in a school’s rank one year have reverberating effects on subsequent applicant pools; a “spiraling” scenario such as this would exemplify how these signals at least partially determine (and therefore distort) the law school quality that they purport to simply reflect or measure.

The Debate about Rankings Since 1990 . . . the annual rankings of law schools published by USN have provided a new type of signal for legal education quality, a signal that is not only easily accessible (due to the wide circulation and relative inexpensiveness of the magazine) but is also presented in a format (precise relative valuations) that is compelling to outside audiences. Providing this new type of comparative information is, according to USN, the motivation behind the rankings. [M]ost in the law school community are not as sanguine about the effects of the rankings as USN and its proponents. While few question that the USN rankings provide a new signal of law school quality, opponents of the rankings believe that this signal also creates negative effects that overshadow any informational benefits. For example, the rankings, according to many law school administrators, change how both resources are distributed and work is done within law schools because administrators feel pressure to make decisions based on what is best for the school’s rank rather than what is best for the quality of the education provided by the school. Specifically, interviewed deans have noted a dramatic increase in money spent on marketing and advertising, a much greater emphasis on LSAT scores in the admissions process, a transition from need-based to merit-based scholarships, and the transformation of the focus of career services from providing career counseling to ensuring that employment numbers are as high as possible.



Although the way in which USN has made distinctions between schools has fluctuated somewhat over time, from 1993 until 2003 the basic structure of these rankings consisted of an ordinal ranking of the top 50 law schools and a division of the remaining (approximately 130) schools into tiers (second tier, third tier, fourth tier), in which they were listed alphabetically. Using this formula, USN creates a point total for each school, which is then standardized to give the top school a final score of 100 and the remaining schools a score based on the percentage of their total points compared to the total points of the top school. So, for example, if Yale receives 22 total points and the University of Alabama receives 10.4, then Yale’s score is standardized to 100 and the University of Alabama’s score is standardized to 47.3 (100 × 10.4/22). Schools are then sorted by their standardized scores and given a numerical rank if they rank in the top 50, or they are equally divided into one of three tiers if they do not. One criticism of this methodology—that is, the accuracy of the signal produced by USN—is that it fails to take into account many of the attributes that constitute a quality law school. Opponents of rankings make similar claims about the signals produced by USN, arguing that by quantifying law school quality very precisely and creating hard lines of distinctions (the cut points between tiers, for instance) the rankings both amplify small differences between schools and create differences among schools that did not exist previously. That is, independent of what information is signaled by USN, how this information is signaled is a second important source of distortion. Signal distortion of this type is very important to law schools because they believe that small differences in rank are meaningful to their outside constituencies. Therefore, law schools are pressured to continually optimize their ranking, by, for example, basing admissions decisions on LSAT scores, spending more money on merit-based scholarships in order to “buy” students whose LSAT scores will raise the school’s median, or producing expensive glossy brochures to be sent to those who fill out the USN survey. The belief that small differences matter to outside constituencies explains why law schools pay such close attention to the rankings even if they believe they are inaccurate. Interviews with law school administrators indicate that schools employ the aforementioned strategies to improve their rank because they perceive that even changes in rank caused by normal statistical fluctuations can have considerable effects on the actual quality of the school because these changes are viewed by external audiences as real changes in quality. The “pragmatic reality” of the rankings—the belief that outside constituencies make decisions based on where schools rank—is the primary driving force behind the influence of the rankings on legal education. In other words, law school rankings are consequential, regardless of their validity, because prospective students decide which schools to attend, employers decide whom to hire, and alumni decide how much to give to their alma maters based on where a school stands in the most current USN ranking. But the pragmatic reality of the rankings is not limited to the one-time fluctuations a school might experience. Many administrators believe that the distorting

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effects caused by the precise evaluations made by the rankings can have long-term consequences as the next cohort of prospective students responds to the new rankings of the school. For example, the fear exists that a fall in the rankings will have a spiraling negative effect in which this drop in rank will lead to a negative response from these outside audiences (for example, a lower-quality applicant pool), which will in turn lead to an even worse rank. In addition, because these consequences of rankings could often be the result of the vagaries of the methodology employed by USN rather than any real change in educational quality, the existence of a spiral would also exemplify how the signal produced by the rankings can create new forms of inequality rather than simply reflect preexisting inequalities among schools. In this situation, the dangers of a loose coupling between a signal and what it is representing become clear: the signal not only might misrepresent the phenomenon it is measuring, but it could also reify this misrepresentation as future actors base their actions or decisions on this signal.

Evidence of the Effects of Rankings [T]he crucial question in the debate about law school rankings has yet to be addressed empirically: do the rankings affect the behavior of external audiences? Or, in the language of signaling theory, do the signals produced by USN influence the behavior of external audiences? To answer this question, the present study examines the effects that a school’s rank has on what many consider the most important of these constituencies: prospective students. [W]e next examine whether schools alter their admissions activity in anticipation of the effects that they believe correspond to rankings. If students do use the rankings as a signal for law school quality and make their decisions about which schools to apply to and where they accept offers from, then we expect that schools will also be influenced by the rankings in their own admissions decisions. To test the effects of the USN rankings on prospective students and law schools, we have collected data from two primary sources. Data on rankings were collected from the 1993 to 2003 editions of the U.S. News & World Report Guide to Graduate Schools. During this period, USN ranked the top 50 schools numerically and then grouped the remaining schools into three tiers within which their placement was determined alphabetically. In order to measure school characteristics that were not used in the construction of the USN scores, we collected data from the 1996 to 2003 editions of the Official Guide to ABA-Approved U.S. Law Schools, now jointly published by the LSAC [Law School Admission Council] and the ABA [American Bar Association]. Dependent Variables We tested the effects that rankings have on a number of outcomes that are consequential for law schools. We began by examining the effects of rank on three



variables that reflect student decisions: how many students apply, the percentage of all students with top scores who apply, and the percentage of admitted applicants who matriculate. To determine if schools alter their behavior in response to changes in their rank, we next analyzed . . . [the] percentage of applicants accepted by dividing the total applicant pool by the number of applicants accepted by the school. USN Ranks We calculated the effects of rankings in two ways. USN groups law schools into four broad categories, or tiers, based on the scores determined by a formula that combines measures of reputation, selectivity, employment success, and institutional resources. Schools that score in the top 50 of all law schools are placed in the first tier and given a numerical rank based on their position within the tier. We first measured the effects of tier placement. Because schools in tiers 2, 3, and 4 are not assigned numerical ranks, this is the only level of differentiation for most schools. Second, we assessed the effects of the specific numerical ranks assigned to schools in the first tier. We measured rank by using the USN ranks. Since only those schools in the first tier have numerical ranks, we did not include schools in the other tiers in our analyses of numerical rank. Controls We also included a number of control variables. Most important, we employed a fixed-effects panel regression, which allowed us to include a separate dummy variable for each school. This provided us with the ability to control for all of the unique time-invariant school characteristics (such as reputation, whether the school is public or private, if the school is independent or attached to a university, etc.) that our other variables did not account for.

Results and Discussion [W]e find that the USN ranks act as a signal to law school applicants. Independent of school characteristics, we find that these ranks affect how many students apply to a school, how many of those applicants have exceptionally high LSAT scores, the percentage of applicants who are accepted, and the percentage of accepted students who matriculate. In short, the USN rankings have a significant impact on the admissions process in law schools. Furthermore, these effects tend to be stronger for the top schools that are ranked numerically than for the majority of schools that are ranked by tier. The grouping of schools into tiers tends to segment the market for law school admissions. The only tier effects for the total number of applications is that the numerically ranked schools (the top 50) tend to receive, on average, about 180 more


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applications than other schools. The status that accompanies a top-tier ranking is a boon for applications. However, when we examine the effects of numerical ranks within the top tier, we find that each rank increases the applicant pool by nearly 19 applications. While not by itself very much, this indicates that a difference of 10 ranks within the first tier yields roughly the same number of additional applications as does the difference between schools in the fourth tier and those in the first tier. We see a similar pattern in the percentage of applicants with LSAT scores above 160. Compared to schools in the third and fourth tiers, schools in the second tier attract 1.3 percent more of these applicants, while schools in the top tier attract 2.6 percent more. Within the top tier, each rank increases the percentage by 0.13 percent, where a difference of 10 ranking positions equals the difference between second- and fourth-tier schools, while a 20-rank difference equals the difference between firstand fourth-tier schools. The percentage of students with LSAT scores in the 150 to 159 range is highest in second-tier schools, and there are actually negative effects for being in the top two tiers for the percentage of applicants with LSAT scores in the 120 to 149 range. We interpret this finding to mean that applicants use the USN tiers to match themselves to schools based on their own LSAT scores. That is, students with high LSAT scores are more likely to apply to the top-ranked schools, while students with lower scores avoid the top-ranked schools in favor of the lower-ranked schools. This strongly suggests that the USN ranks help define how this market is segmented. USN ranks also affect the percentage of accepted students who matriculate in the law school. Approximately 2 percent more accepted students choose to attend schools in the second and third tiers each year than do accepted students in the bottom tier. While the effect for first-tier schools is of similar magnitude, it fails to attain significance. However, within the first tier, each rank change increases the matriculation rate by 0.2 percent, so that a difference of 10 ranks changes the percentage roughly the same amount as the difference in matriculation rate between the bottom tier and the other tiers. Finally, the USN ranks have minor effects on the ability of schools to be more selective. While there are no significant effects for the tiers, schools within the first tier can be more selective the higher their rank. Overall, the USN ranks have a consistent and independent impact on which schools students apply to, where they can hope to be accepted, and where they eventually matriculate. But, as shown above, this is not the full extent of the effects of the rankings. The responses of students to the signals produced by the USN rankings can affect the future rank of schools in a way that compounds the initial effects of rank. The strongest effect of USN rank in our model is its influence on the schools to which top students apply, a variable that we also find to be a strong predictor of future rank. In other words, the fluctuations in the ranks of schools—which are commonplace due to the precise distinctions made in the rankings and are rarely anything more than random statistical variation—have a clear influence on where students with high LSAT scores apply, which in turn affects a school’s future ranking. Moreover, this process affects the underlying quality of schools, as schools that drop in the rankings are unable to recruit as talented students as they could before. This spiraling effect highlights the importance of LSAT scores in determining the rank of schools.



Conclusion When considering the impact that these signals have had on law schools, it is also important to keep in mind that admissions is just one of the many aspects of legal education that are affected by the USN rankings. Administrators note that the rankings also affect how other outside constituencies—most important, employers, alumni, and university trustees—perceive and behave toward the school. As one dean explained, The law school faculties and the smart administrators all say, “This [the rankings] is a bunch of hooey, we don’t care about this,” until they drop and the board of trustees says, “Hey, you’re dropping; why should we give you more money?” And the board of visitors from the law school say, “Man, your school’s really going to pot and you haven’t changed a thing. Big changes need to be made here.” And your monetary support—the alumni—say, “Well I’m not sure I want to support a school that’s going in the wrong direction.” And your money starts to dry up, and you go, “We have got to have the money; we can’t afford to lose funding or else it will spiral downhill and we will be a worse law school.”

In addition, many administrators note that internal constituencies such as current students, faculty, and even members of the administration itself are affected by changes in rank; among the manifestations of these effects are morale changes, transfers, changes in the ability to attract new faculty, and an increase or decrease in job security for administrators. [T]he present findings [demonstrate] how the process of signaling itself—that is, how the signals are presented—can distort in consequential ways that which is being signaled, regardless of its methodological accuracy. We suggest two ways in which the signal created by USN has distorted law school quality. First, by precisely quantifying the quality of each law school and then creating rigid and fine-grained distinctions between schools, USN misrepresents the actual distribution of law school quality even if its own measure of quality is accepted as accurate. This means that many of the exacting distinctions made by USN, especially those that are made toward the center of the distribution of law schools, do not indicate actual differences in law school quality. As our results demonstrate, however, this false precision has significant consequences for law schools because small differences in law school rank appear significant to influential outside audiences. The effect of these small differences supports the views of those administrators who claim that small changes, changes that are often caused by random fluctuations in the statistical measurements used by USN, can have important consequences for the school by influencing the quality of the student body. Second, the distortion created by these presentational choices can then be compounded as future decisions are made according to these signals. Our analysis shows how the effects of the rankings on the admissions process have the potential to create a feedback loop that appreciably increases the magnitude of these consequences for


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institutions that experience changes in rank. This is a case where the rankings, by transforming insignificant variations into significant consequences, play a clear role in creating—rather than simply reflecting—law school quality. While it is true that the rankings, as their advocates contend, provide useful and accessible information to prospective students and other audiences, our findings suggest a more careful consideration of the unintended, and sometimes unnoticed, consequences that these evaluations produce.


Lawyer Satisfaction in the Process of Structuring Legal Careers Ronit Dinovitzer and Bryant G. Garth

Decades of work on the legal profession have confirmed that there are hierarchies in the profession that every lawyer knows. Access to the most prestigious positions has not been attained by women and minorities in proportion to their representation in the lawyer population. At the same time, however, this inequality is not consistently reflected in measures of job satisfaction—and it is this disjuncture of expressions of job satisfaction within structures of inequality that calls for a new approach to understanding lawyer satisfaction. We therefore seek in this article to steer the literature on job satisfaction in the legal profession away from models that evaluate the internal interest of lawyers’ work or explain differences in satisfaction based solely on the obstacles or rewards that lawyers enjoy within the profession. Rather than assuming lawyer satisfaction to be a persistent problem, no problem at all, or simply one of discrimination, this article argues that job satisfaction should be understood as both a manifestation of and a factor in a stratification system that tends to lead individuals into hierarchically arranged positions. We argue that job satisfaction depends in part on social origins and the credentials related to these origins, with social hierarchies helping to define the expectations and possibilities that produce professional careers. As Bourdieu (1996) demonstrated in his work on The State Nobility in France, for example, class positions not only explain which schools students will attend, but these social origins also determine how well students will fit with the mission of particular schools. A Bourdieusian approach thereby emphasizes that social stratification is not merely externally produced, but that individuals, through their habitus—the set of practices and dispositions acquired through the repetition of living life—internalize what they can reasonably expect in life and, more important, what they cannot. And in this way, it is often their choices and expectations that reproduce patterns of stratification, so long as we recall that the “dispositions that incline them toward this complicity are themselves the effect, embodied, of domination” (Bourdieu 1998: 4). [T]his work leads us to inquire whether comparatively lower career expectations— particularly for those for whom joining the profession is itself a ticket to a bourgeois professional status—can keep large numbers of lawyers satisfied, despite positions Abridged from Law & Society Review 41, no. 1 (2007): 1–50.



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offering relatively few possibilities to move into elite legal or other careers. Others, who expect naturally to be given a position within the elite, may grumble about their work because it does not comport with their image of where they belong or because they know already that they are passing through to something higher—perhaps in business or the state. And still others, in between these poles, may express dissatisfaction with relatively elite opportunities less because of an expectation of something more elite, and more because they feel they are not welcome in a particular setting. They may translate their dissatisfaction into a need to leave their jobs or possibly even the profession, with likely downward effects on their professional trajectories. In this article, we therefore conceive of job satisfaction as a mechanism through which social and professional hierarchies are produced and reproduced, and we argue that satisfaction and dissatisfaction are part of a process that links particular people to particular careers—supplying, stratifying, and legitimating the legal profession with its various hierarchies.

Data and Methods This article relies on the first wave of data from the After the JD (AJD) study, a national longitudinal survey of law graduates designed to follow a sample of slightly more than 10 percent of all the individuals who became lawyers in 2000. The study is based on a sample representative of the national population of lawyers who were admitted to the bar in 2000. Data collection was based on a mail questionnaire that included sections on the respondent’s job history and search process; the nature of the respondent’s current job, including its content, the work environment, and the respondent’s satisfaction with it; the respondent’s law school history; and a variety of background and contextual information. Approximately 100 in-depth face-to-face interviews were conducted with a subset of respondents. Of the original sample members who were located and who met the criteria for inclusion in the study, 71 percent responded to either the mail questionnaire or a telephone interview, for a total of 4,538 valid responses. The analyses in this article rely on data from the national sample only (i.e., the minority oversample is not included), comprising 3,950 respondents. Comparisons with external data indicate that the AJD sample is representative of the general population from which the sample was selected.

Basic Contours of Satisfaction in the AJD Data Consistent with prior research, reported levels of job satisfaction in the AJD study are high.  .  .  . [F]ully 79 percent of respondents report that they are extremely or moderately satisfied with their decision to become a lawyer. In contrast, however, when asked how long they plan to stay with their current employer, the data suggest a different pattern, with 44 percent of respondents expressing that they intend to be looking



for a new job within two years—and almost one-quarter of these respondents express that they are already looking for a new position or plan to within one year. These data present somewhat of a paradox: on the one hand, we find very high levels of reported satisfaction with the decision to become a lawyer, while on the other, we find fairly high levels of job mobility expectations, often taken as indicating lower levels of professional satisfaction. To get underneath this tension, we disaggregated these findings by the prestige of the law school attended by the respondents. As Bourdieu has argued, schools are a key site through which students acquire their professional expectations—schools thereby play a critical role in the reproduction of social stratification, with students not merely acquiring the skills they require for professional life, but perhaps more trenchant, adapting to the dispositions necessary for the professional roles they are destined to take. Our measure of the law school hierarchy is derived from the rankings published in the U.S. News & World Report for 2003; each school in the AJD data set was assigned its corresponding U.S. News score and was then placed into one of six major groupings: the top 10, top 11–20, top 21–40, top 41–100, schools in the third tier, and schools in the fourth tier. Analyses reveal that these rankings correlate well with the measures of lawyers’ social background available in the AJD data. [M]ore than half of the graduates from top 10 schools work in the megafirms of more than 250 lawyers, compared to just 4 percent of fourth-tier graduates, who are instead working predominantly in small or solo practices. Even when they work in the public sector, graduates of elite schools are more likely to be working in the more prestigious federal government positions, while lower-tier graduates are more likely to work for state government.

Satisfaction as Process: Mapping the Structure of the Legal Profession We begin by exploring the determinants of job satisfaction [using four factors that measure different components of job satisfaction]. The first factor represents “job setting satisfaction,” consolidating ratings of recognition received at work, relationships with colleagues, control over the work, and job security. The factor for “work substance satisfaction” reflects the intrinsic interest of the work, while the third factor, “social value satisfaction,” concerns the reported relationship between work and broader social issues (workplace diversity, opportunities for pro bono work, and the social value of the work). The fourth factor, “power track satisfaction,” comprises two items: satisfaction with compensation levels and satisfaction with opportunities for advancement. We then estimated four separate models of job satisfaction—one each for satisfaction with job setting, substance of work, the social index, and the power track. [W]e [also] draw on responses to the question, “How satisfied are you with your decision to become a lawyer?” which were provided on a five-point scale, ranging from 1 (“extremely satisfied”) to 5 (“extremely dissatisfied”). [W]e focus here on those respondents who report that they are extremely satisfied with their decision to become a lawyer.


Ronit Dinovitzer and Bryant G. Garth

We further explored sentiments of satisfaction by considering respondents’ intentions to leave their employer. Expressions of intentions to leave one’s employer embody relative dissatisfactions with and expressions of uncertainties about chosen career paths, but they are also an indicator of the pattern of moves and adjustments that people make as they build their careers. We modeled respondents’ intentions to leave their employer . . . to explore the factors that influence the likelihood of respondents’ intentions to leave their employer within each of four different time frames: (1) currently or in less than one year, (2) within one–two years, (3) within three–five years, and (4) in more than five years. We found that while measures of social class contribute somewhat to the variations in specific types of workplace satisfaction (context, substance, social index, and power track), these forms of satisfaction are best explained by lawyer demographics and the settings within which lawyers work. However, the more general measures of career satisfaction and mobility intentions are clearly related to patterns of social stratification. The analyses revealed that lawyers most satisfied with their career choice graduated from less selective law schools and work in less prestigious settings, thereby legitimating a hierarchy in which it is the most privileged who attain the positions of high prestige and pay in the legal profession. Similarly, lawyers least committed to staying with their employer are those who have the most options: graduates of top-tier law schools, working in larger private firms and in the federal government. In short, these patterns reinforce a structure of the profession whereby lawyers from the less selective school remain in the positions that are relatively less prestigious and remunerative, with expressions of satisfaction playing a key role in this process.

Models of the Role of Satisfaction and Dissatisfaction In this next section, we draw on in-depth interviews with AJD respondents in which they recount how they found their jobs, describe their practice settings and work life, and discuss their expectations for the future. These accounts reveal the ways in which individuals make meaning of their lives and find satisfaction in the positions that they occupy, while they also act as mechanisms through which stratification is reproduced and legitimated. The discussion below constructs six major categories of lawyers, based on the tier of law school they attended. The Elites: Biding Time Graduates from top 10 schools are overwhelmingly the children of advantage. In contrast to those who attended the lower-tier schools, their reasons for attending law school focused on the intellectual challenge of law school or developing a satisfying career—reasons that are less tied to lifestyle and financial success. At the same time, they are more likely than graduates of other tiers to have considered alternative lucrative and prestigious options, such as a career in investment banking. Their options in the legal field are plentiful, which is reflected in the number of job offers they



received in the private sector; very few of them even sought positions in the public sector. They are on a fast track, and they are there by choice, which is reflected in their valuing prestige and mobility versus lifestyle in their choice of legal practice sector. Their practice settings require them to put in significantly longer hours, which translates for them into much less satisfaction with their job setting. This sense of ambivalence about their job is paralleled by their ambivalence about their choice of career, reporting the lowest level of satisfaction with their decision to become a lawyer. This relative ambivalence is also seen in their involvement at work, with the elite students reporting less contact with partners, suggesting that they are not investing much in accumulating social capital where it requires the most effort. The “Almost” Elites—Always in Second (Top 11–20) Across nearly all measures, graduates of schools ranking in the top 11–20 are “almost” identical to the elite students. The background of these respondents is clearly privileged, reporting significantly higher levels of occupational prestige and education for their fathers compared to respondents from all other schools, and they also have invested heavily in the private sector. And while they are privileged compared to the average respondent, they are not given quite the same opportunities as the elite group, which is reflected in comparatively fewer offers, a lower likelihood of working in the largest law firms, somewhat lower salaries and hours worked, and more attention to salary as a factor in their choice of a position. Many of them also had to work harder to get their positions than those from the elite schools, suggesting that grades matter more as one moves down the law school hierarchy. It is not surprising that those who worked harder to earn their positions are not as casual about leaving them. These graduates report a high rate of prior job stability, and they are not more likely than other graduates to express intentions to leave their job within two years. While they express the same relative dissatisfaction with aspects of large firm settings as the elite graduates, more of them are satisfied with their decision to become a lawyer (though they are still less satisfied than graduates of all other tiers). Their greater commitment to their jobs is also reflected in the fact that a larger percentage of these graduates network with partners, reflecting an effort to build relationships in their settings; we also see this commitment in their ratings of their opportunities for advancement, which are relatively high. Between Elites and the Middle (Top 21–40) Graduates of law schools ranked 21–40 have social backgrounds similar to those of the groups described above. But the lines of demarcation become much stronger at this level. On almost every measure other than social class, graduates of top 21–40 schools are below those from top 20 schools: they received fewer job offers, a smaller proportion of them work in large firms, and they earn less. They also express sentiments that diverge from those of the elite: they are less likely, for example, to have


Ronit Dinovitzer and Bryant G. Garth

gone to law school to “help” others. Grateful for the opportunities they have, when compared to graduates of the tiers above them, they are more committed to their employers, network more, and are more satisfied with their decision to become a lawyer. Happiness at the Top of the Middle (Top 41–100 Schools) Those who graduated from the top 41–100 schools come from less privileged backgrounds than those at the higher-ranking schools, and they understand law school as part of a project of upward mobility. When asked why they decided to go to law school, for example, they give somewhat higher than average ratings to careerist reasons. Their prospects are limited, with far fewer offers in the private sector and only 10 percent of these graduates making it to the larger firms (of at least 100 lawyers). These respondents give significantly higher ratings to lifestyle in their choice of practice setting, as could be expected, but they are still close enough to the top that they continue to emphasize the importance of prestige in their choices. With law providing them with upward mobility, we find this group investing strongly in their career paths. A large proportion of these graduates expect to be staying with their current employer for more than two years. They know that law school made a difference in their career prospects, with more than one-third extremely satisfied with their decision to become a lawyer. They do not take for granted that they will have a successful career, working fairly long hours and working hard, even at networking. They are trying assiduously to learn the rules for advancement rather than relying on a feel for the game. The Third Tier—The Battle for Upward Mobility In terms of socioeconomic background, law school for the third tier appears to represent an aspiration of upward mobility: more of these graduates report that they went to law school for careerist reasons, but they also went to law school to help others—perhaps because they remember where they came from. Their experience on the job market is fairly similar to those in the tier above them, but they tend to work predominantly in solo or small practice. Many of them justify that choice as a lifestyle decision . . . reflecting their “choice” not to work in environments that were not in fact available to them. Graduates of the third tier are working hard as they try to build their careers, working the same number of hours as those in the tiers above. The benefits do not come as easily to them, however, as they are earning less and express low levels of satisfaction with the power track. Yet the legal profession continues to offer them some satisfaction, particularly with their job setting, which they rate somewhat higher when compared with the average respondent. The Fourth Tier: The Most Satisfied Graduates of fourth-tier schools come from the least advantaged social backgrounds; their parents are the least educated and have the lowest occupational prestige scores



in the sample. They are more likely than others to have considered starting their own business as an alternate career strategy, a dramatic contrast with the aspiration to work as an investment banker that was expressed by elite graduates. Moreover, the interviews again reveal the influence of a lifestyle preference for these graduates, who reject the long hours associated with working in a large law firm. At the same time, their experience on the job market suggests that they are fulfilling a particular market need—while fewer of them received more than two offers, their odds of receiving at least one offer is no different than the average. Their work settings are a stark contrast to the settings of the elite graduates: almost half of the fourth-tier graduates work in small or solo practice; they are also the least likely of all respondents to express that prestige and mobility were important in their choice of sector of practice. Perhaps this reflects the somewhat limited choices they faced in the job market. Graduates of the fourth tier are working hard to make it. They work as hard as most other new lawyers (except for the elites)—yet they earn the least. A higher percentage of these lawyers than any other group reports being extremely satisfied with their decision to become a lawyer. Thus despite the worse objective circumstances compared with graduates of other law school tiers, these graduates are well aware of the boost that the law degree gave to their careers.

Mixing and Matching Careers and People: Social Class in Professional Sorting At this early stage of lawyer careers, it is already clear how sentiments of satisfaction and dissatisfaction play into and legitimate the hierarchical structures of the legal profession. Those who can obtain the most prestigious and lucrative positions in large corporate law firms do so, they work long hours, and they internalize a relative dissatisfaction that encourages them to move. The relative unhappiness with the work and job setting in the large corporate law firms helps those from the lower-ranked schools—who typically are from relatively disadvantaged backgrounds—to feel pride in other choices. The relative lack of elite satisfaction, we note, also plays a role in the internal dynamics of the large corporate law firms. It is clear that the economics of the large law firm depend on relatively few associates making it to partner. Meanwhile, the long hours that associates work are essential to partner profits. Our hypothesis is that relative dissatisfaction encourages attrition and makes the screening process far more manageable for law firm managers. While there is no detailed research about the partnership decision as such, it would be difficult for partners to make defensible decisions if all the associates sought to stay. The streaming of top law graduates into the corporate sphere has long raised questions about the ways in which the resources of the legal profession are expended, and the patterns we document in this article call for further reflection on the implications of stratification for the legal field. With lawyers from lower-tier law schools not only accepting of their place in the profession’s hierarchy, but also extolling its


Ronit Dinovitzer and Bryant G. Garth

virtues by relying on the benefits of lifestyle, we find a continued convergence of elite lawyers and corporate clients that is reproduced through career preferences. That this hierarchy is legitimated through individual career aspirations ensures that any change would be difficult to effect—and elite law schools, continuing to draw their students from predominantly privileged social origins, will continue to place their graduates in large, urban law firms, generating wealth for corporate clients.


The Changing Character of Lawyers’ Work Chicago in 1975 and 1995 John P. Heinz, Edward O. L aumann, Robert L. Nelson, and Ethan Michelson

A hypothesis that the urban bar is essentially divided into two distinct sectors or areas of practice was propounded in Chicago Lawyers: The Social Structure of the Bar (Heinz and Laumann 1982): [W]e have advanced the thesis that much of the differentiation within the legal profession is secondary to one fundamental distinction—the distinction between lawyers who represent large organizations (corporations, labor unions, or government) and those who represent individuals. The two kinds of law practice are the two hemispheres of the profession. Most lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator. (p. 319) The two sectors of the legal profession thus include different lawyers, with different social origins, who were trained at different law schools, serve different sorts of clients, practice in different office environments, are differentially likely to engage in litigation, litigate (when and if they litigate) in different forums, have somewhat different values, associate with different circles of acquaintances, and rest their claims to professionalism on different sorts of social power. Only in the most formal of senses, then, do the two types of lawyers constitute one profession. (p. 384)

Following the publication of Chicago Lawyers, the two-hemispheres hypothesis became a frequent point of reference in the scholarly literature, but the survey on which that book was based was conducted in 1975. There have since been important changes in the legal profession—women entered the bar in large numbers, the overall size of the profession almost doubled while the size of the organizations within which law is practiced grew even more rapidly, the management practices of those organizations became more formal and intrusive, and there were substantial changes in the level of demand for particular types of legal services, some increasing while others declined. Many of these changes may well have affected the

Abridged from Law & Society Review 32, no. 4 (2008): 751–75.


142 John P. Heinz, Edwa rd O. L aumann, Robert L. Nelson, and Et han Michelson

organization of lawyers’ work and thus have altered the degree of separation (or lack thereof) of the two hemispheres of law practice. The purpose of this article is to compare the Chicago findings from 1975 with more recent data concerning patterns of co-practice among the fields of law and the extent of specialization by field in order to determine whether the distribution of lawyers’ work has changed—that is, whether there is a clear separation between two broad sectors of practice, one serving large organizations and the other serving individuals and small businesses. Both surveys presented the respondents with a list of fields of practice and asked them to indicate the percentage of their work time devoted to each of the fields during the past year.

Specialization by Field In 1975, of 687 practicing lawyers responding, 22.7% worked in only one field. In 1995, in spite of the fact that respondents were presented with a longer, more detailed list of fields (42 field categories were used in 1995 vs. 30 in 1975), 32.6% of 675 practicing lawyers indicated that they worked in only one field. Thus, specialization appears to have increased substantially over the 20 years.

Client Differentiation by Field Because we have data on the types of clients represented by lawyers practicing in the various fields, we are able to assess more directly the association between particular field categories and the client-type categories. As a first step . . . we find that the percentage of clients that are businesses (other client categories are persons—i.e., individuals or families, unions, government, and nonprofit organizations) ranges from a mean of 5% in criminal prosecution and 8% in criminal defense to a high of 91% in environmental defense. [A]s one would expect, fields dealing with the personal problems of individuals (“personal plight” fields) tend to be the quintessential personal client fields. This is especially true when the field often represents poor people or persons of moderate means, as in criminal defense and personal injury plaintiff ’s work. When the clients are more likely to have some money—as, for example, in probate or residential real estate—there is a greater likelihood that the practitioner may represent businesses as well. At the other extreme of the distribution, we find fields that are likely to represent the largest corporations—environmental defense, banking, and patents and trademarks. But note that some fields of practice serve a more varied mix of clientele . . . 58% of the clients of respondents who do personal tax work are businesses and  .  .  . 72% of the clients of those who do corporate tax are businesses. The lawyer who prepares the corporate tax returns for the Smedley Corporation may do the returns of Mr. and Mrs. Smedley as well. Thus, the distribution of client types among the fields in 1995 does not show a clear separation between “two hemispheres” of practice. Rather, a middle group of fields appears to bridge the extremes.



Allocation of Time in 1975 and 1995 We compare estimates of the percentages of lawyers’ time or effort devoted to the several fields of law in 1975 and 1995. [W]e have derived these estimates from the respondents’ reports of the percentages of their time that they devote to each field. Overall, the corporate client fields have grown much more rapidly than the personal client fields, and the “hemispheres” are now even more unequal in size. In the 1975 data, the estimate is that 53% of lawyers’ time was allocated to the corporate fields (including work for nonbusiness organizations such as unions and governmental entities), while 40% was devoted to the personal client fields and another 7% was not clearly assignable or was spread across a variety of small fields. By 1995, the disparity between the two sectors had increased considerably. [T]he corporate sector consumed more than twice the amount of Chicago lawyers’ time devoted to personal and small business client work in 1995 (64% vs. 29%). The “large corporate” cluster of fields increased most—from 18% of the total in 1975 to 32% in 1995—while the “personal business” and “personal plight” clusters both declined.

Changes in Practice Organizations The growth of the corporate sector of practice and the decline in the percentage of personal and small business legal work has been paralleled by a corresponding realignment of the organizational contexts within which law is practiced. In the 1975 survey, 23% of the respondents were in private law firms with 2 to 10 lawyers; in 1995, only 14% worked in firms of that size. At the same time, the percentage of lawyers working in firms with more than 30 lawyers nearly doubled—from 15.7% in 1975 to 29.3% in 1995. The average number of lawyers in the private law firms represented in the 1975 sample was 27; by 1995, the average number per firm had grown to 141. The largest private law firm in our 1995 sample employed 1,800 lawyers. The percentage of lawyers practicing alone has been declining for as long as data are available. [M]ore lawyers are now in partnership with other lawyers and the size of those partnerships has increased very substantially. Even in the personal and small business sector of practice, legal work is increasingly concentrated in larger organizations. As the organizations grow, they are more likely to adopt a clear division of labor, so that they become organized along lines of formal rationality rather than in traditional hierarchies. In the older, smaller firm model, a relatively small number of powerful senior partners presided over their own hierarchies within the firm. These workgroups, consisting of associates and junior partners working under the supervision of one or more seniors, typically served the needs of a particular, limited group of clients. The law firm’s relationships with these clients were tended and nurtured by the seniors, and the workgroup often dealt with the full range of the clients’ problems—commercial transactions, antitrust, securities regulation, real estate acquisition, and so on. In the newer, larger firm model, specialized departments replace the personal hierarchies. Instead of being built around dominant seniors, these

144 John P. Heinz, Edwa rd O. L aumann, Robert L. Nelson, and Et han Michelson

departments are defined by substantive expertise or skill types—for example, tax, litigation, real estate, mergers and acquisitions. Typically, the allocation of work in each department is managed by a chairman, assisted by a second level of supervisors. The changes in the organizations where law is practiced are closely analogous to the restructuring of medical service organizations. Management has become so central in medicine that the product is referred to as “managed care.” What were formerly “doctors’ offices” are now “health care delivery systems.” In the legal profession, the consolidation of services does not appear to have progressed quite as far as it has in medicine, but the bureaucratization of the bar has advanced sufficiently that the trend is clear and the effects are felt by most lawyers.

Conclusion The separation of American lawyers into functional categories has a long history. Early in this century, a report sponsored by the Carnegie Foundation recommended the creation of an “inner bar” that would handle complex business transactions and would be separate from the “general body of practitioners” handling smaller cases and personal problems (Reed 1921: 237–39). The two sorts of lawyers were to be trained in different schools, with different curricula. The report was not favorably received, but a similar division of practice evolved, de facto, although the educational channels are still not as distinct as had been contemplated. Lawyers who handle the divorces and automobile accidents of a neighborhood clientele might also draft wills and close the sales of homes, but they are unlikely to work on mergers of large companies or to deal with the tax problems of major real estate developers. Moreover, the specialization of practice tends to create boundaries for professional relationships among lawyers. The kinds of work that lawyers do, the style of their work, and the places in which they do it differ greatly. But the bar has changed greatly since the 1970s. One of the most important of the changes, surely, is the sheer growth. The number of lawyers in the United States increased from about 355,200 in 1970, one for every 572 persons in the population, to about 805,900 in 1991, one per 313 persons. In Cook County, the number of resident lawyers increased from 19,072 in 1976 to 35,704 in 1994, an increase of 87%, while the county’s population decreased modestly. The population of the greater Chicago metropolitan area, however, grew by 7.8% from 1975 to 1995, and thus the demand for divorces, wills, personal injury settlements, residential real estate closings, and other personal legal services presumably grew at a similar rate. But the demand for corporate law services increased far more during the two decades than did demand for lawyers’ services to individuals and small businesses. Overall, expenditures on legal services in the United States increased by 309% between 1972 and 1992. This rate of increase was twice that of the gross national product during the same period and even exceeded the percentage increase in spending for health services. A large share of the new lawyers are women. Historically, the American bar— like medicine and other elite professions—included few women. In the 1975 survey



of Chicago lawyers, the random sample was composed of 30 women and 747 men. Though women had started to enter law schools in substantial numbers in the early 1970s, not many had yet entered practice by 1975. The picture is much different today. The official count of Illinois lawyers does not include an enumeration by gender at the city or county level, but women amounted to 26% of the statewide total in 1995. Nationally, in 1970 only 2.8% of the nation’s lawyers were women, and this percentage had remained steady since the mid-1950s. By 1991, the percentage of women had burgeoned to 20%—but it was still far from the percentage among law school graduates, which was over 40%. Thus, the face of the bar has changed. Gender and racial diversity within the bar, rare before, is now seen in many contexts within the profession, but the mix differs with the context. Women and minorities are disproportionately concentrated in certain types of practice, and these readily perceived differences accentuate lines of demarcation. Although demand for legal services to corporations and other large organizations has grown far more rapidly than demand for services to individuals and small businesses, entry into the market is easier in the latter types of practice. That is, any lawyer can hang up a shingle and seek clients in auto accident or refrigerator repossession cases, but it is difficult for lawyers to obtain access to the venues where corporate legal services are delivered. Therefore, since demand was expanding in the types of practice where entry is difficult but growing only much more slowly in the areas where entry is easy, lawyers in the former tended to prosper while those in the latter languished. Sander and Williams estimate that from 1972 to 1982 the real incomes of lawyers in solo practice decreased by 46% (1989: 449–51). Thus, the increasing gap between rich and much less rich within the bar has also accentuated the differences among the types of practice. There are, then, several reasons to suppose that Chicago lawyers might be less cohesive in the 1990s than they were in the 1970s, and urban lawyers may now have become subdivided into smaller clusters. But the division between the two classes of clients—between large organizations, on the one hand, and individuals and small businesses, on the other—endures. [T]he distinction between organizations and individuals (and the small businesses owned by individuals) is a matter of both form and substance. Because corporations are owned by shareholders, their lawyers’ relationships with management are more difficult and ethically complex than are lawyers’ relationships with owner-operators. Corporations pay corporate tax, and the rules and procedures differ from those that apply to the taxation of individuals. Corporations also issue securities, and they are subject to a multiplicity of reporting requirements at the federal, state, and local levels. Other large organizations—governmental institutions, labor unions, trade associations, professional organizations—are also subject to special rules and reporting requirements, and the character of lawyers’ relationships with these clients is more like their relationships with corporations than like those with individual clients. Lawyers employed by large law firms do, of course, handle legal work for individuals—often for the individuals who are officers of their corporate clients. To the extent


John P. Heinz, Edwa rd O. L aumann, Robert L. Nelson, and Et han Michelson

that this occurs, the corporate and the personal client sectors of the bar are drawn closer. But there is a division of labor within these law firms, and the lawyers who do the corporate work may not be the same ones who handle personal matters. If lawyers’ work has become increasingly specialized—if lawyers who do securities work are now less likely to do probate or commercial law as well—this will tend to separate the two sectors of the bar. Fewer lawyers will cross the boundary. Is the legal profession still divided into hemispheres? Well, “hemi” means “half,” and it is now hard to argue that the two parts are of approximately equal size, at least in Chicago (and probably in other large cities). Work for corporate clients is a much larger part of the profession than is work for individuals or small businesses. The amount of Chicago lawyers’ time devoted to corporate fields and to fields serving other large organizations is more than twice that devoted to personal client fields. But the relative size of the two parts is probably not a very important part of the thesis— this will vary with the size and character of the jurisdiction in any event—and we have not assessed in this article the degree of socioeconomic, ethnoreligious, educational, and political separation of practitioners in the two sectors. Within each of the broad parts, the fields are now more distinct, more clearly separated than they were 20 years ago. In this respect, there is greater disaggregation of work and workgroups within the profession today. On the other hand, the increase in scale of law firms and other practice organizations may mean that the specialties are to some extent reintegrated within overarching structures. The departmentalization of the firms, however, appears to result in workgroups that are more narrowly defined than was previously the case. Our finding that specialization has increased markedly in most fields, especially in the corporate sector, suggests this. We think it unlikely that the present organizational structures provide enough interchange among the specialties to produce a bar that functions as a community of shared fate and common purpose.


Lawyers, Mediation, and the Management of Divorce Practice Craig A. Mc Ewen, Lynn Mather, and Richard J. Mai man

Discussions of legal practice and dispute resolution are often dominated—and distorted—by the tendency to view the world in either-or terms. Both the popular and academic literatures are preoccupied with contrasts between formal and informal processes, competitive and cooperative attorney styles, clients’ rights and needs, lawyer and client control of decisionmaking, and so on. Whatever utility it may have for framing rhetorical questions about legal reform, such binary thinking does not accord with the more complex realities of legal practice, which are often located not at one end or another of such polarities but in the dynamic interplay between them. The experiences and observations of divorce attorneys who participate in mediation with their clients provide a new angle of vision on some of these central realities of dayto-day law practice. In this article, we examine how lawyers in the state of Maine report understanding and participating in mandatory, court-sponsored divorce mediation. From the lawyers’ descriptions of their work, we identify four central challenges of divorce practice. Although experienced attorneys may give them little conscious thought, these dimensions of practice require numerous and sometimes difficult decisions that lie at the heart of divorce lawyers’ work: how to pursue both negotiation and trial preparation; how to encourage client participation in case preparation while retaining one’s professional authority; how to provide clients with legal advice while addressing vitally important nonlegal issues; and how to structure and manage cases so that they can be moved predictably and expeditiously. While viewing the practice of divorce law as organized around the decisions necessary to solve these problems, we also see—through the eyes of participating lawyers—a mediation process that is far more varied and complex than the simple models of many of its advocates and critics. This mediation, for example, permits talk about rights as well as problem-solving negotiation; encourages client involvement while providing opportunity to lawyers to advocate for and support clients; and structures negotiation at least as often as it substitutes for trial. Indeed, we believe that the wide acceptance of mediation by divorce lawyers in Maine can be understood in terms of its apparent capacity to expand the options and ease the choices for lawyers in dealing with the demands of their divorce practices. Abridged from Law & Society Review 28, no. 1 (1994): 149–86.



Craig A. Mc Ewen, Lynn Mather, and Richard J. Maiman

This article begins to examine these issues with data collected from interviews with Maine divorce lawyers. In the sections that follow we describe our research methods; situate our analysis in a description of mediation in Maine; explore in detail the four dimensions of practice and the ways mediation assists lawyer in dealing with them; and reflect on the impact of mediation on divorce practice and the characteristics of mediation that produce that impact.

Data and Methods [W]e identified 178 divorce lawyers and arranged and completed interviews with 92% of them. Our interviewees included 88 lawyers in Maine and 75 in New Hampshire. Of the total interviewed, 37% were female and 63% were male. Most of the lawyers worked as solo practitioners or in small law firms. In addition to the interviews, we gathered data from the docket records of a large sample of divorce cases from the same counties in Maine and New Hampshire.

Divorce Mediation in Maine Divorce mediation differs widely across the United States. [I]n some areas mediation is purely voluntary, while in others it is mandated by the state or by the local court; mediation may address all issues of a divorce or be limited by law to child custody and visitation; and either public or private mediators can deliver mediation services. Some mediation programs exclude the parties’ lawyers, while others encourage them to participate. Mediators themselves vary in their backgrounds, credentials, and training, so that some mediators see their roles largely as nondirective and facilitative, while others seek to be more active and judgmental. These and other critical variations in divorce mediation result from official state policies, and from program ideologies and training. Moreover, mediation practices vary significantly even in mediation programs that share some of the same features. In July 1984, divorce mediation became mandatory in Maine prior to the scheduling of any contested hearing in all cases involving minor children. Unlike most divorce mediation statutes, the Maine law allowed mediation to focus on all issues in divorce, not just on child custody and visitation. Also, the mandate means in practice that if parties with children have reached a settlement on their own or anticipate doing so, they need not schedule mediation. Only in those cases where one or both parties want mediation or where one or both anticipate the possibility of a contested hearing is a request made—by the parties, not the court—to schedule mediation. Generally, mediation in Maine is done by nonlawyer mediators who have limited formal training and who work for very modest wages from the state. Divorce cases in Maine typically involve only one mediation session, held at the local courthouse, lasting on average between two and three hours. As a consequence of the 1984 mandate, the number of divorce mediation sessions increased precipitously, from 350 in 1983



(when mediation was voluntary and only available in parts of the state) to 4,918 in 1985. In 1985, the first full year of mandated mediation, close to 30% of the total divorces filed in Maine went to mediation, compared to about 4% in 1983. The typical mediation case in Maine, however, usually involved two attorneys. In our sample of mediated cases since 1984 (n=422), 80% involved two lawyers, and another 17% had one lawyer, typically for the plaintiff. In only 3% of the cases did both mediating parties proceed without any lawyer. In stark contrast to the assumption that mediation substitutes for an adversarial legal process, mediated cases in Maine since 1984 appear to have been more legally contested than nonmediated cases and more likely to have two attorneys involved. Maine divorce lawyers have not only accepted mandated mediation as a fact of life but have with a few exceptions embraced it warmly. We are left to question, then, how and why Maine divorce lawyers have adapted to mediation so completely? The answer lies, we believe, in the character of divorce law practice and the capacity of mediation to assist lawyers in handling some of the key challenges in their day-to-day work.

Adaptation: Incorporating Mediation into Divorce Law Practice The practices of divorce lawyers involve a range of different tasks and problems, each requiring skill and sensitivity. We believe that the willingness of Maine lawyers to accept divorce mediation and incorporate it into their practices stems from its capacity to assist attorneys in addressing such multiple and, at times, contradictory demands. In particular, we have identified four dimensions of divorce practice, each involving its own particular challenges. The four dimensions which we examine are (1) pursuing negotiated settlement and preparing for trial, (2) controlling clients while allowing their participation in decisionmaking, (3) handling nonlegal issues as well as legal issues in the divorce, and (4) directing the legal process through strong case management.

Negotiation of Settlement and Preparation for Trial Lawyers are often characterized as either adversarial or cooperative in their general approach to case resolution. Such a juxtaposition obscures the frequent necessity in law practice of moving between and combining approaches. Flexibility in approach is made difficult, however, by the fact that the formal legal process is organized around the steps to trial. Although most cases ultimately settle through negotiation, lawyers must orchestrate negotiation largely on their own, with the occasional help of courtinitiated settlement conferences on the eve of trial. The demands of trial preparation and of negotiation are not entirely consistent, despite Marc Galanter’s (1984) useful characterization of them as a single process of “litigotiation.” Lawyers must decide, for example, between aggressively using formal legal procedures such as discovery and embarking on cooperative, informal efforts at information sharing; between taking extreme positions and making “reasonable”


Craig A. Mc Ewen, Lynn Mather, and Richard J. Maiman

offers; between being open and honest about underlying interests and goals or keeping them hidden; and between engaging in strategic behavior that imposes costs and pressures on the other party and minimizing posturing and costs for both parties. According to lawyers we interviewed, mandatory mediation changes the structure of the formal legal process, by adding an official settlement event that involves parties directly in the negotiation process. Attorneys thus report that mediation encourages a focus on settlement, in part by preparing their clients for it. The gathering of lawyers and clients together in the same place also improves the clarity and efficiency of communication. When attorneys participate in mediation, they find that the nature of communication is transformed as well, as mediators set normative restraints on overly aggressive conduct. At the same time, mediation does not preclude and may even enhance trial preparation. Lawyers especially appreciated mediation for the information it gave them about the other side and for the opportunity to test out arguments that might be used at trial. The introduction of mandated mediation into the “litigotiation” process provides a short detour on a road leading to, but unlikely to reach, trial. It is a tangible event that can create a sense of urgency about settlement that otherwise may not occur until a firm trial date looms. One attorney described this as a key advantage of mediation: The other thing that you can’t do without mediation is have all four people in the same place at the same time with some time limits and the sense of an opportunity which, if not taken, will be missed.

The mediation event may also move indecisive clients to make decisions they have been reluctant to make. And it also helps, I think, to get the parties ready in a sense, to be prepared for mediation they really have to give the matters some thought, think about what they truly want, what they expect out of the process, and it causes them to focus on the real issues that they might otherwise have been ignoring or just refusing to come to grips with.

Even when one or both sides are incompletely prepared for mediation, however, the event itself focuses attention on settlement and helps launch—if not conclude—negotiation. A variety of kinds of “smoke” get cleared away in mediation sessions involving both clients and lawyers, cutting through information barriers that reduce the possibilities for settlement. In typical negotiations a lawyer has no contact with the other party and must communicate only through that person’s attorney. As a result, lawyers often do not have good first-hand knowledge of the priorities and concerns of the party on the other side, important knowledge for effective negotiation. Lawyers hear their [client’s] side of the story, and they start from that, and they believe in their side of the story, and they never really understand or fully accept the other side, the other view of the same situation. If you hear it from the other lawyer, you don’t



believe in it as thoroughly as if you’re sitting there [in mediation], and the lawyer and client are spelling it out in a way that you have to  .  .  . absolutely listen, and you can’t interrupt, and it really gets spun out.

With that information, the lawyer may feel better informed about how to approach settlement effectively as well as how to evaluate the prospects for trial. If mediation provides a settlement detour on the road to court, it is a scenic route with a clear view of trial. Through their participation in mediation, lawyers can assess the likely strengths and weaknesses of a case in court and gain information that may serve either for settlement or trial. [It is] a chance to see if I’ve got a salable case here. If the mediator says to me, “Oh, what a load of horseshit that is,” then I rethink my trial strategy. But if the mediator seems to be sympathetic . . . 

Thus, even those lawyers most oriented toward trial work found participation in mandated mediation useful. Consistent with the concerns of critics of divorce mediation, Maine lawyers said they knew of clients who had experienced the pressure or “momentum” of mediation or “being browbeaten” by particular mediators who were too concerned with getting a settlement. But the lawyers saw themselves as playing the role of rights-oriented advocate, advising and protecting their clients during the mediation process. Thus, attorneys in Maine have found that mandated mediation assists them in moving toward settlement while simultaneously advocating for rights and even preparing for trial. Most lawyers praised mediation for the useful focus it provides for settlement activity by diminishing some of the barriers to communication, information sharing, and understanding that often arise in unstructured negotiation. At the same time, the lawyers viewed mediation as good preparation for the eventuality of trial, allowing them to assess the strengths of the other side and to use the session for informal discovery purposes.

Controlling Decisionmaking Another key dimension of legal practice lies in the complex relation between lawyer and client, in particular the balance that must be struck between lawyer and client control over decisionmaking. According to the Model Rules of Professional Conduct (Rule 1.4(b)), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Yet  .  .  . the traditional model of lawyer-client interaction presumes that lawyers direct decisionmaking and that clients play a fairly passive role. Maine lawyers valued mediation because it involves their clients directly—but under supervision—in discussing settlement, hearing the other side, and weighing the reasonableness of each party’s position. Yet, lawyers also recognized that the active


Craig A. Mc Ewen, Lynn Mather, and Richard J. Maiman

role of mediators in challenging parties and their positions can also reinforce the lawyer’s influence over the client. Thus, Maine’s mandated mediation appears to assist attorneys in increasing client participation in negotiation while simultaneously reinforcing the lawyer’s professional role as guide, adviser, and advocate.

Handling Nonlegal and Legal Issues The turmoil of many divorces draws lawyers into the private lives of their clients, while the substantive issues of divorce often involve practical assessments of living arrangements and of children’s needs. Although a primary task of lawyers is to translate personal troubles into legal issues, lawyers also face demands to offer personal advice and to situate their legal advice in a broader context. Thus, central to legal practice is a dimension that moves lawyers back and forth from dealing with technical legal issues to counseling clients about their problems of living. In divorce cases a failure to deal with these nonlegal issues may prevent the attorney from getting her legal work accomplished. Unfortunately, the processes of legal representation and of lawyer-guided negotiation leave little room or structure for parties to meet face to face to deal with emotional issues or to work through the details of property or visitation. In this context, mediation may provide a setting where anger and feelings about the other spouse can find an outlet. Roughly a quarter of the Maine lawyers we interviewed observed that mediation serves this role. I guess it gives them a chance before [trial] to get their side out and hear the other side, maybe it’s cathartic, I don’t know. And I think sometimes a mediator can be very helpful in getting the two sides to work out their anger, to talk with each other and not at each other.

Five lawyers expressed the frustration or impatience felt, we suspect by many, at having to be present when the parties worked on these nonlegal issues in mediation. Indeed, the primary role that attorneys saw for themselves in mediation was to advise their clients in dealing with legal issues such as property division and in guarding against loss of legal entitlements. As one lawyer put it, the role is that “of a watch-dog.”

Directing the Legal Process Legal cases move forward with varying degrees of direction by and attention from attorneys. The timing of cases, amount of contact with clients, extent of litigation activity, intensity of settlement effort, and cost vary from case to case and from lawyer to lawyer. Divorce cases are no exception to the pressures that work against close case management. The lawyers we interviewed reported that the efforts to keep control



over the course of any single divorce can easily be overwhelmed by the press of handling many cases: Any attorney worth his salt is probably right out straight and they’re handling or juggling 100–200 cases at a time. And just by a matter of sheer time, unless they get focused in on a particular case, the case isn’t going to get resolved.

These uncertainties in case processing create significant headaches for both lawyers and their clients. Clients understandably see their divorce as of primary importance and may call regularly to find out what is happening. Their lawyers, faced with the crush of many cases, the unpredictable responses of opposing party and counsel, and the slowness of court scheduling, may delay or avoid responding because the answer is “nothing.” In the context of a struggle to manage and move cases, lawyers view mandated mediation as offering new opportunities for structure and control of cases. A mandated process would appear at first to diminish lawyer control of cases by giving it up to the court. But in practice, mediation in Maine typically takes place at the initiative of one (or both) lawyers in a case. Initiating mediation serves several strategic goals for Maine divorce lawyers. First, by requesting mediation, they get the attention of the other party and ensure that some sustained attention is given to settlement early in the case. A second strategy for lawyers is to employ mediation in an effort to rein in an attorney on the other side who is “out of control,” behaving like a “pit bull” or a “mad dog litigator.” A rapid move into mediation literally forces the other party to the bargaining table, where with a mediator’s help, there is at least some modest prospect of deescalation. At the same time that Maine’s mandated mediation provides a mechanism to structure negotiation, it threatens a lawyer’s control over the hours devoted to a case and its consequent cost to the client. The Maine lawyers we interviewed were about evenly divided between those who thought that mediation raised the costs of divorce and those who thought it saved money. [L]awyers with working- and middle-class clients, in particular, worried about using mediation unnecessarily or prematurely.

Law Practice Transformed? Binary conceptions of lawyers’ approaches to practice as either adversarial or problemsolving lead to dramatic questions about transformation and cooptation. Has the blending of mediation and the work of divorce lawyers in Maine “transformed” law practice or have attorneys simply “coopted” and “legalized” mediation? The degree to which new procedures change the way lawyers work is an important question. However, since we conceive of both divorce law practice and mediation as containing elements of adversariness and problem-solving, we think it appropriate to look not for radical transformation but for evidence of modest changes in the balance between these and other elements.


Craig A. Mc Ewen, Lynn Mather, and Richard J. Maiman

To address this question of change, we present longitudinal data from Maine court dockets, as well as retrospective assessments of Maine lawyers and comparative data from attorney interviews and court dockets from neighboring New Hampshire. We sought to learn how lawyers balance the simultaneous demands for cooperative and adversarial approaches to settlement. We asked: “When you are negotiating a divorce case, would you say your primary goal is best described as reaching a settlement fair to both parties or getting as much as possible for your client?” Maine attorneys differed significantly in their answers to this question from a comparable group of New Hampshire lawyers we had also interviewed. Maine lawyers were considerably more likely to select the fair settlement goal, while New Hampshire lawyers more often chose getting the most for the client. This cross-state difference holds up under a variety of controls for divorce specialization and gender of lawyer. In addition, the divorce dockets of the two states provide evidence of behavioral change consistent with this attitudinal pattern. We coded from the docket books the presence or absence of various kinds of legal activity by one or both parties suggesting legal disputation. These involved motions . . . and other actions such as filing of objections. In New Hampshire the average total frequency of such motions per case grew from 1980 to 1988. In Maine, by contrast, it fell significantly (averaging 20% lower after mediation took effect) with the advent of mandated mediation in 1984. Although far from definitive, these data suggest that the introduction of mediation may have reduced the extent of formal legal contention in divorce in Maine. At the same time, there is no evidence that the advent of mandated mediation diminished the role of lawyers in divorce cases in Maine. Mandatory mediation thus has not “transformed” divorce law practice in Maine. Nor could it have been expected to, given that law practice and mediation typically require both adversariness and problem-solving. The engagement of lawyers in divorce mediation appears, however, to have modestly shifted the mix among these elements both in the daily work of attorneys and in the mediation process itself.

Conclusions In sum, divorce mediation in Maine serves as a relatively formal and structured addition to a disjointed negotiation process that is carried out intermittently by parties or by their lawyers. Some of its most significant effects occur not through the magical skills of mediators but through the mere fact of an event involving both parties and lawyers. Other pretrial events or administrative checkpoints may perform some of these same functions. As described by Maine lawyers, divorce mediation is a process that contrasts markedly with the model assumed by much of the commentary. Rather than being an alternative to litigation, mediation draws in divorce cases which are among the most heavily litigated. Rather than demanding that “[l]egal rights fade into the shadow of informality” (Bryan 1992: 523), mediation makes legal rules and rights a key reference point through the participation of lawyers. Rather than being an informal substitute



for trial, mediation serves as a relatively formal adjunct to negotiation. Rather than placing decisionmaking exclusively in the hands of parties, mediation permits, even strengthens, the ability of lawyers to influence decisions. And rather than leaving parties unassisted in the face of pressures of mediators and stronger parties, mediation interposes lawyers as advisers.

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The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court Results of a Randomized Experiment Ca rrol l Seron, Gre gg Van Ryzi n , Ma rtin F ra n kel , and J e an Kovath

This article reports findings from a randomized experiment to test the effects of a program that provided legal representation to low-income tenants in New York City’s Housing Court. While almost all landlords in Housing Court have the benefit of legal representation, the vast majority of tenants do not. Legal advocates for the poor have thus argued for a right to legal counsel in Housing Court, similar to the right that exists in Criminal Court, on grounds that it would ensure due process of law and procedural safeguards in an area of vital interest to tenants, their families, and society. Aside from the question of cost, arguments against a right to counsel in Housing Court center primarily on the administrative burden on the Court that such an expansion of legal assistance might entail. Briefly, the findings from this experiment show that low-income tenants with legal representation experience significantly more beneficial outcomes than their counterparts who do not have legal representation, independent of the merits of the case. Furthermore, the findings from this experiment suggest that the presence of legal representation may impose only modest time delays or other indicators of administrative burden on the court system and may even be more efficient for the courts in certain respects.

Background In the early 1970s, the State of New York created a specialized Housing Court Part under the jurisdiction of the Civil Court of the City of New York (hereafter referred to as Housing Court) to enforce state and local laws regulating housing conditions and to adjudicate landlord-tenant disputes. A number of other large cities established specialized housing courts as well during this time. While New York’s Housing Court hears disputes between landlords and tenants over a range of issues, by far the most common case is a claim filed by a landlord to evict tenants for nonpayment of rent. Annually, New York’s Housing Court handles about 300,000 cases and issues nearly 100,000 warrants of eviction. Although the vast majority of tenants in Housing Court Abridged from Law & Society Review 35, no. 2 (2001): 419–34.



C a rrol l Se ron , G re g g Va n Ry zi n , M a rt i n F ra nk el , a nd Jea n Kovat h

appear in court pro se (that is, they represent themselves without an attorney), most landlords have lawyers. For example, one study found that 21% of tenants in Housing Court were represented by a lawyer, whereas 78% of landlords were represented by a lawyer. A more recent study estimated that only 12% of tenants have legal representation, compared to 98% of landlords. New York’s Housing Court plays a crucial role in the city, particularly as it affects the housing conditions and welfare of the city’s poor. Seventy percent of New York City’s 2.8 million households are renters, 500,000 of which have incomes below the federal poverty line. The housing stock of the city is very old and in comparatively poor condition, with low-income households much more likely to live in the most dilapidated and neglected buildings. Still, rents in New York remain unaffordable to many: 19% of the city’s renters and 95% of low-income renters pay half or more of their income in rent. The city has long had a chronically low rental- housing vacancy rate, particularly at lower rent levels, and homelessness continues to be a major social problem that many believe is linked to the city’s housing woes. The lack of legal representation for most tenants, the severe housing problems of the city, and the complex regulatory system in New York have led legal advocates for the poor to argue for a right to counsel in Housing Court. This argument rests in large part on the principle of due process of law, a key element of which is protection against procedural error. It is often argued, however, that legal representation slows down the wheels of adjudication. Lawyers may be effective, but they engender inefficiencies by filing multiple motions, or they may demand changes in scheduling to stall resolution of the dispute. Such tactics and delays may in turn encourage tenants to hold out without paying rent and deprive landlords of vital rental income to maintain and operate their buildings. In 1993, the Interest on Lawyer Accounts Fund (IOLA) of New York provided funds to support the Pro Bono Project against Homelessness. The funds were jointly granted to the Legal Aid Society Community Law Offices in the Society’s Volunteer Division (hereafter referred to as CLO) and to the Association of the Bar of the City of New York (ABCNY), and CLO was designated as project coordinator. The goal of the project was to enlist the services of volunteer (i.e., pro bono) attorneys, many from the largest law firms in the city, to represent low-income tenants in Housing Court. Because of the enormous need for attorneys, a related goal of the program was to “concentrate on cases that meet two principal requirements: a) they could lead to eviction and b) they give reason to believe that a lawyer could have a significant impact on the outcome.” CLO established an intake office in the Manhattan Housing Court, with support from the Administrative Judge of the Civil Court. Staff from CLO managed the program, including screening of cases and assignment and supervision of pro bono attorneys. Attorneys from 17 firms were recruited and received basic training by CLO attorneys in the housing code and related matters of litigating in Housing Court. Because the volunteer attorneys in the program were not specialists or even necessarily experienced in Housing Court litigation prior to the program, CLO staff assisted the volunteer attorneys in developing a plan of action for each case. The staff paralegal worked on the welfare aspects of the case with the volunteer attorney while the staff



attorney assisted the volunteer attorney in preparing papers and thinking through case strategies. In other words, CLO attorneys worked closely with volunteer attorneys on all phases of the case, including negotiating, drafting stipulations of settlements, and trying cases before the Court. An independent evaluation of the program was requested as a condition of funding. The evaluation was intended to answer two primary empirical questions: 1. Does the provision of legal counsel affect outcomes for low-income tenants in Housing Court, including final judgments, warrants of eviction, and stipulations requiring rent abatement or repairs to the property? 2. Does the provision of legal counsel for low-income tenants produce delays and other inefficiencies for the Court, including a lengthening of the average time required by the Court to dispose of a case and an increase in the number of motions filed?

Method The evaluation was designed as a randomized experiment involving a treatment group of legal aid–eligible tenants that was targeted to receive legal counsel through the Pro Bono Project and a control group that was not. A paralegal assigned to the project asked individuals in line if they had an attorney and, if not, if they met the federal poverty guidelines. If the individual indicated that he or she would be interested in having legal representation and met the income eligibility for legal aid, he or she was invited to meet with an attorney. A CLO attorney met with each client to confirm that the case met the legal criteria for the project (i.e., that the prospective client faced eviction), that the client would benefit from legal support, and that the prospective client met the income eligibility for legal aid. The intake attorney next left the client and went to a research assistant hired by the evaluators. At this point, the assistant handed a numbered envelope to the intake attorney; the envelope was opened and contained the instructions “proceed/treatment” or “control.” If the instructions indicated “control,” the intake attorney returned to meet with the client and explained that it was not possible to provide legal representation. The client was then escorted back to the Housing Court line where he or she could return to the same place in the queue. If the instructions indicated “proceed/treatment,” the intake attorney then assigned the case to a volunteer attorney. The experiment was designed so that neither the intake nor the volunteer attorneys knew whether the case was part of the actual experiment as opposed to the broader Pro Bono Project. Of the 377 cases screened between September 13, 1993, and June 27, 1994, 268 had been randomly preselected for study; 134 were assigned to treatment and 134 were assigned to control. Following an agreement with the Administrative Judge of the Civil Court, control and treatment cases were rotated through the same three judges for the duration of data collection for the evaluation. Judges did not in any way know which cases were


C a rrol l Se ron , G re g g Va n Ry zi n , M a rt i n F ra n k el , a n d Jea n Kovat h

in the study. Also, the Administrative Judge implemented a procedure whereby the cases were assigned to judges who have a particularly strong reputation as equitable and fair decisionmakers who are willing to assist pro se defendants. Among the cases in the control group, only 4% of the respondents in fact had an attorney; that is, these respondents went out and secured other, private legal representation. This low level of legal representation among tenants in the control group is in keeping with prior research on New York City Housing Court tenants. Among the treatment group, only 56% received legal counsel and 44% did not. The fact that not all of those within the treatment group received legal representation is the result of inconsistent delivery of legal services to those cases that were initially categorized as “advice” or “assistance.” Thus, in our analysis, we estimate two effects: the effect of the initial assignment, or intention to treat, regardless of whether the tenant in fact received the benefits of legal representation; and the effect of the treatment itself on those treated. Five variables were selected to test the hypothesis concerning the effect of the program on substantive legal outcomes: * Whether or not the tenant defaulted or failed to appear; * Whether a judgment was made in favor of or against the tenant; * Whether or not a warrant for eviction was ordered; * Whether or not a stipulation requiring repairs was entered; and * Whether or not a stipulation requiring rent abatement was entered. Four additional variables were selected to test the hypothesis about the effect of the program on the efficiency of the Court: * The number of court appearances required in a case; * The number of days required to dispose of the case, from initial answer to final disposition; * The number of motions filed in the case; and * The number of postjudgment motions filed.

Findings The data [in Table 17.1] report the comparison of outcomes for treatment and control cases for [whether] the program has a beneficial effect on the outcomes experienced by tenants [and] . . . address the issue of delays or burdens on the court. [T]enants in the treatment group experienced significantly more beneficial outcomes in Housing Court than controls. Not only are the effects highly significant statistically, but the magnitude of the differences are also large in substantive terms. Notably, while approximately 28% of the control cases show defaults or failure to appear in Housing Court, only about 16% of treatments do so. And although judgments were



Table 17.1 Comparison of Outcomes and Court Process Indicators for Treatment and Control Groups Test Statistic, p-Value Treatment


(two-tailed test)



X2 = 5.82 (p = 0.016)

(n = 133)

(n = 124)



(n = 132)

(n = 123)



(n = 133)

(n = 124)



(n =133)

(n = 124)



(n = 133)

(n = 124)



(n = 119)

(n = 108)

Outcome Default or failure of tenant to appear Judgment against tenant Warrant of eviction issued Stipulation requiring rent abatement Stipulation requiring repairs

X2 = 10.71 (p = 0.001) X2 = 10.95 (p = 0.001) X2 = 15.54 (p < 0.001) X2 = 8.53 (p = 0.003)

Court-Process Indicator Mean number of court appearances Mean number of days from answer to final judgment Mean number of motions filed One or more post-judgment motions filed



(n = 124)

(n = 120)



(n = 133)

(n = 124)



(n = 133)

(n = 124)

t = 2.22 (p = 0.138) t = 5.05 (p = 0.026) t = 0.89 (p = 0.347) X2 = 10.35 (p = 0.001)

issued against 52% of control cases, only approximately 32% of the treatment cases had judgments against them. Similar differences in favor of the treatment group can be seen in the percentage of warrants for eviction and the percentage of stipulations for rent abatements and repairs. [T]he findings reported in Table [17.1] do not provide much evidence in support of the hypothesis that lawyers create inefficiencies for the court system. Though treatment cases sit on the docket for significantly more time (about 111 days) than control cases (approximately 82 days), treatment cases do not generate significantly more court appearances or motions than control cases. In fact, the findings actually suggest that lawyers may create some efficiencies for the Court. Treatment cases are significantly less likely to have postjudgment motions filed (approximately 13%) than control cases (29%). Postjudgment motions are especially burdensome for the Court because they require a case to be reviewed and reopened after what was supposed to have been a final resolution of the dispute. These results suggest that counsel are


Ca rrol l Se ron , G re g g Va n Ry zi n , M a rt i n F ra nk el , a nd Jea n Kovat h

effective in obtaining stipulations and compliance, and this in turn may produce significantly fewer of these motions when clients are represented. In interpreting these findings, it is important to note again that the treatment category includes some cases (n = 59) in which the client did not in fact receive the services of a lawyer. It is reasonable to assume that the impact of a lawyer, that is the impact of the treatment on the treated, may be larger than that reported in [Table 17.1]. Thus, [Table 17.2] reports the results of an estimation of the effect of legal representation itself on the same outcomes. The analysis adjusts for the fact that not all of those in the treatment group received the help of a lawyer, as well as the fact that a few of those in the control group found lawyers on their own. As the data in [Table 17.2] show, the treatment effects on all five outcomes [for tenants] are highly significant statistically and of larger magnitude than the results shown in [Table 17.1]. The difference in the mean number of court appearances is no longer statistically significant, as it was in [Table 17.1]. However, the difference in days

Table 17.2 Analysis of Outcomes and Court Process Indicators for Represented and Unrepresented Tenants Test Statistic, p-Value Represented


(two-tailed test)



t = -4.44 (p < 0.001)

(n = 133)

(n = 124)



(n = 132)

(n = 123)

Outcome Default or failure of tenant to appear Judgment against tenant Warrant of eviction issued Stipulation requiring rent abatement Stipulation requiring repairs



(n = 133)

(n = 124)



(n =133)

(n = 124)



(n = 133)

(n = 124)



(n = 119)

(n = 108)

t = -4.51 (p < 0.001) t = -5.66 (p < 0.001) t = 7.48 (p < 0.001) t = 6.30 (p < 0.001)

Court-Process Indicator Mean number of court appearances Mean number of days from answer to final judgment Mean number of motions filed One or more postjudgment motions filed



(n = 124)

(n = 120)



(n = 133)

(n = 124)



(n = 133)

(n = 124)

t = 1.39 (p = 0.166) t = 3.61 (p < 0.001) t = -1.03 (p = 0.304) t = -3.93 (p < 0.001)



is larger than in [Table 17.1], and it remains significant statistically. Finally, the difference in postjudgment motions remains significant and somewhat larger in magnitude than the results in [Table 17.1].

Discussion and Conclusion The findings from this experiment clearly show that when low-income tenants in New York City’s Housing Court are provided with legal counsel, they experience significantly more beneficial procedural outcomes than their pro se counterparts. Represented tenants are much less likely to have a final judgment and order of eviction against them and more likely to benefit from a stipulation requiring a rent abatement or repair to their apartment. Because this evaluation is based on a true randomized experiment, these differences in outcomes can be attributed solely to the presence of legal counsel and are independent of the merits of the case. Moreover, these outcomes do not appear to come at much expense in terms of the efficiency of the Court; in fact, the presence of an attorney at the tenant’s side may actually enhance efficiency by reducing the number of motions, particularly postjudgment motions. Because the cases were selected in part on the basis of a CLO attorney’s judgment regarding expected benefits from the provision of legal assistance, the effects of the program may not be as large in a more general cross section of cases involving lowincome tenants facing less severe legal challenges. The results also refer only to Manhattan, and the rental housing market in Manhattan is different in important ways than other housing submarkets in the city. Another limitation of this study is that we cannot directly answer the question, What specifically did the lawyers do that produced these substantive results? We interviewed the CLO attorneys on this question. They report that, substantively, lawyers, either from CLO or pro bono lawyers working under the close supervision of CLO colleagues, were able to perform a number of key tasks because of their familiarity with and understanding of the legal culture of Housing Court. These include (1) determining what is actually owed by way of rent; (2) negotiating a reasonable time period for payment when money is owed; (3) negotiating with or litigating against welfare when, e.g., the agency has not issued the full amount of arrears, has issued them to the wrong landlord, or when the client qualifies for a special grant to cover rent; and, (4) obtaining abatements of rent when repairs were not completed in a timely manner. Each of these substantive steps is extremely difficult to accomplish without representation. While the findings from this experiment provide robust evidence that low-income clients do better in court with legal representation, the question remains whether some other form of legal assistance short of full legal counsel would be similarly effective in some instances.


Cause Lawyering in Transnational Perspective National Conflict and Human Rights in Israel/Palestine Li s a Haj jar

Around the world, lawyers often play important roles in formulating and advancing social or political causes. “Cause lawyering” refers to the legal and extralegal engagements of politically motivated lawyers, whether the cause is comprehensive transformation, such as independence or democratization, or a more limited aspect of public policy, such as expanded rights or guaranteed protections of some kind. In contrast to “conventional” or “client lawyering,” which is tailored to accommodate prevailing arrangements of power, cause lawyering involves the application of professional skills and services to transform some aspect of the status quo. The very notion of “cause” implies agency, motivation, social identifications, political relations, and goals. The other side of the coin is the ways in which sociopolitical dynamics affect cause lawyering as opportunities for intervention expand or contract, political alliances shift, and causes become redefined by circumstance or deliberation. The study of cause lawyering, then, involves analysis of the contours of resistance through the medium of law within a given field of hegemonic relations. Although cause lawyering manifests itself in widely varied ways around the world in terms of the causes and practices of lawyers, the quest for change provides a kind of organizing principle at the heart of the concept. Globalizing the study of cause lawyering would not (necessarily) alter the subject (lawyers and their activities); rather, it would involve an opening up of the boundaries—often national—that frame the analysis. Human rights, as both a normative discourse and a form of international politics, provides a global perspective particularly relevant to the study of cause lawyering. It offers a way of imagining the world or, more specifically, a way of imagining a world changed for the better. One question that this article seeks to explore is “the interplay”: how cause lawyers make use of the discourse and politics of human rights in a localized setting. The specific subject is cause lawyering by Israelis and Palestinians in the Israeli military court system in the occupied West Bank and Gaza. [This research includes extensive participant observation in all the military courts and over 100 interviews with people representing the various categories of participants, including some 45 lawyers.] The time frame under consideration extends through early 1994 Abridged from Law & Society Review 31, no. 3 (1997): 473–504.




when the Israeli occupation was unmediated by the transition to Palestinian “selfgovernment” in parts of the territories.

Israel/Palestine as a Case Study of Transnationalism Ideologically and politically, the population in Israel/Palestine is comprised of “two people,” specifically two ethnonations, Jewish and Palestinian Arab. This distinction was institutionalized and politicized over the last century, a product of the sweeping rise of modernist nationalism. The Israeli–Palestinian conflict is, at root, a contest of national claims to the historic homeland, an area that conforms to the contemporary boundaries of Israel/Palestine. In terms of the character of its sovereignty, Israel is an ethnonational state because it is a Jewish state, but its citizenry includes people not of the Jewish “nation.” The term “Israeli,” which refers to citizenship status, includes Jews, Arabs, and Druze. In ethnonational terms, “Palestinian” includes both Arab citizens of Israel and noncitizen residents of the territories. [T]he relationship between law and society is complicated by the fact that the parameters of analysis do not correspond to the boundaries of a sovereign state. There is no single legal order applicable throughout this area nor any common legal status or shared set of rights available to all people. Second, there is a serious question as to the semiautonomy of the law when it comes to matters relating to Palestinians because of the ways in which Israeli national security is given precedence over legal rationality within the legal codes and systems. Cause lawyering in the military court system has been a manifestation of the contested legitimacy of Israeli authority in the West Bank and Gaza. Most of the lawyers who have chosen to work in these courts have done so for political reasons which are rooted in their critique of Israeli government in the territories. However, cause lawyering in this context is a diversified enterprise. Some lawyers, primarily Jewish Israeli liberals, are critical of the form of Israeli rule, particularly to the extent that it involves the violation of rule of law standards. Other lawyers, including Jewish Israeli leftists, Arab Israelis, and Palestinian residents of the territories, take the occupation itself as the basis for their criticisms. The military court system . . . was established in 1967. The courts are manned by soldiers. Judges and prosecutors, virtually all of whom are Jewish Israelis, include both career soldiers and reservists. The military courts have been used to prosecute Palestinians charged with security violations, which encompass activities ranging from violent actions to tax evasion to political expression. Over the decades since 1967, hundreds of thousands of Palestinians have passed through the military court system. Despite the Israeli state’s rhetorical claims to abide by rule of law standards, the military court system is rife with problems which seriously compromise the availability of due process protections. The cumulative effects of these problems serve to place onerous burdens on defense lawyers, both as legal practitioners and as representatives of Palestinian clients. [L]awyers have few legal options to achieve the standard mark of “victory”: acquittal

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through trial. Rather, for the most part they are forced to scramble for some lesser victory through plea bargaining: shorter sentences, the dropping of charges, exclusion of some flagrantly flawed evidence, and so on. The pressure to plea bargain also comes from clients. [D]ealing is widely recognized as the best means of getting a shorter sentence, thereby enabling people to be back on the streets where, it is popularly regarded, the “real” struggle takes place. [G]iven the structural and interpersonal pressures on lawyers to plea bargain, it should be no surprise that some 90–95% of military court cases end in a deal. During the period of the Palestinian uprising against the occupation, which began in December 1987 and lasted through the early 1990s, Israeli–Palestinian relations reached new levels of violence and repression. But the uprising also had some positive effects on cause lawyering. One significant consequence was a heightened interest in the international community stimulated by media and human rights reports about conditions in the territories, including the military court system. This attention fueled and fortified a “human rights consciousness” among lawyers and enabled a whole new level of political and legal criticism of the court system that some lawyers had been striving to generate for years.

Strategies of Resistance How do cause lawyers’ practices constitute forms of resistance to the status quo, and to what effects? Resistance is undertaken to challenge the nature of Israeli rule by propounding adherence to rule of law principles or to displace Israeli rule in the territories entirely by working for the goal of Palestinian self-determination. Cause lawyering strategies can be divided into three general categories: legal maneuvers, extralegal solidarity work, and publicizing problems to local and/or international audiences. This section focuses on the first two, and the following section addresses the third. All lawyers engage in both legal and extralegal activities, but the significance they attach to each varies. Israeli citizens tend to put a greater emphasis on legal options, while Palestinian residents of the territories tend to foreground the extralegal dimensions of their work because of their greater social proximity and shared status with the collective client. The structural inequalities in Israel/Palestine place Palestinian lawyers at greater disadvantage within the legal system. Under these circumstances, it is hardly surprising that many Palestinian lawyers see their role primarily as interlocutors between the people and the state, trying to minimize the negative repercussions of the occupation with the limited professional options at their disposal. Being lawyers provides them with the opportunity to have contact with people who have been arrested, and with their families. Thus, beyond the legal work of handling of cases, they function effectively like social workers by offering emotional and other extralegal forms of support. But such activities do constitute forms of resistance: within Palestinian nationalist discourse, sumud (steadfastness) is recognized as a part of the



struggle against the occupation. Acts of solidarity can be undertaken as conscious efforts to erase the boundaries between the profession and the community it serves. For Israeli citizens, who generally have fewer social contacts with Palestinian society at large, their sense of cause is often more focused on the legal terrain. One leftist Jewish lawyer with a long tenure in the courts said that she has had some differences with clients over her strategies: My first priority is always people in interrogation. I will do everything I can to help someone while he is in interrogation, even sacrificing my work on other files. With the [uprising], so many people were in interrogation, I didn’t have time to do prison visits. It hurt me that [my clients] who are very political couldn’t understand my politics. I don’t mind losing clients, or even feeling unappreciated. But it bothers me that people put their own interests [i.e., being visited in prison] before the bigger problems. We all have our role to play, and they should understand mine.

Within the legal process itself, plea bargaining dominates, leading lawyers to refer to the military courts as a “suq [marketplace] of deals” and to describe themselves as “deal merchants.” Lawyers are well aware that a collective refusal to plea bargain could have been a politically effective strategy, if for no other reason than that it would create an enormous backlog for the authorities. But for a variety of reasons, lawyers have never been able to mount and sustain such a strategy. For one thing, the consequences for individual clients would be devastating. The structural advantages favoring the prosecution so seriously compromise the possibility of a defense victory at trial that the outcomes would inevitably be longer sentences for all involved. Lawyers’ past experiences with trials strongly mitigate against the appeal of such a strategy, and those who have on occasion taken cases to trial say they regretted the decision in retrospect. One Gaza lawyer described an experience of taking what he believed was a sure-win case to trial: I brought 11 defense witnesses to testify against one soldier. The judge said that [despite the overwhelming number of witnesses], he couldn’t let their testimony override the “dignity” of the word of a soldier because this would diminish the legitimacy of the IDF [in the territories]. So even though there was no confession, and so many witnesses saying that they had arrested the wrong person, my client went to prison.

Another factor working against the option of taking cases to trial relates to a sheer lack of time and adequate remuneration to make it worth lawyers’ while. Although the uprising merely worsened the situation, many lawyers who practice regularly in the military courts have been too consistently overwhelmed with work to give the necessary attention to any one file. Furthermore, because release on bail is rarely granted, and given the delays which are endemic to the system, pretrial detention could be longer than the sentence, especially for people charged with minor crimes. The prevalence of plea bargaining epitomizes the contradictory relationship between


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the politics of struggle and the legal process: plea bargaining systematically fragments political resistance through the individualization of cases. According to one Gaza lawyer, “By always plea bargaining, we just help the Israelis put Palestinians in jail faster.” There is an obvious disjuncture between dealing, which involves concession, and the charged discourse of resistance beyond the court system. Throughout the years of occupation, the Palestinian political leadership demonstrated little interest and almost no involvement in the workings of the system or the legal activities of lawyers, aside from statements of solidarity and support for political prisoners. This lack of political direction has left legal strategies to the discretion of lawyers. Their problems in organizing themselves, either formally through one group or informally on an ad hoc basis, have meant that this discretion has largely been a matter between individual lawyers and their clients. For those lawyers who would have liked to politicize legal practice by taking a collective stand to refuse to deal, something that many Israeli and Palestinian lawyers have said they desire, such a strategy would only have been possible if undertaken by all or at least most lawyers working in the military courts. As long as any lawyer plea bargains and thus gets lower sentences for his or her clients, there is pressure on all lawyers to do the same or risk losing clients. Within the legal process itself, lawyers have engaged in resistance activities on an individual basis. Examples of these strategies include trying to challenge confessions by calling for zuta (voir dire); just threatening to take a case to trial, which sometimes motivates overworked prosecutors to lower the sentence or drop some charges; or even the troubling tactic of “dealing against files” by giving the prosecutor something on one case in order to get a break on another. A common strategy has been to delay, either to put pressure on prosecutors who were under orders to finish files quickly or to wait for a judge or prosecutor who might be more amenable to lowering the sentence or dropping some charges. Even the most common practices, what lawyers describe as “begging for mercy,” can be regarded as a form of resistance if the goal is understood as getting the shortest possible sentence for the client. One Arab Israeli lawyer described his strategy to tell judges and prosecutors what they want to hear in order to inspire them to lower the sentence: Sometimes I tell them that the occupation is really good for Palestinians, because this is what they believe. Sometimes I tell that my client is a poor fool who was taken advantage of by some troublemaker who made him throw stones or burn tires. They like this too, because they want to believe that the [uprising] is not really popular. Good lawyers are the ones who can make their clients seem “innocent,” not of the charges—because there is a confession—but innocent in a bigger sense, like being forced into activism.

Ultimately, individual lawyers’ strategies hinge on a combination of skills and commitment, legal options related somewhat to issues of identity, and the nature of lawyers’ relations with others. But despite the differences, their common role defending Palestinians has provided a basis for certain shared criticisms of the operations of the system and the way Israeli rule in the territories is maintained.



Cause Lawyering as Resistance Politics: Between Hegemony and Human Rights For most [defense lawyers], their decision [to work in military courts] is based on a conscious desire to traffic in the highly charged fray of occupation politics. Those lawyers who are most politically effective are the ones who have been able to use the information they gain through their work to bring outside attention to the operations of the system and conditions in the territories. In this regard, human rights has been important both as a conceptual framework that enables lawyers to articulate their criticisms, and as a transnational array of institutions that have provided clearinghouses for this information. The human rights business, including cause lawyering for human rights–type goals, is an elite enterprise. It requires the cultural capital to utilize and disseminate information. This is certainly true in the context of the Israeli military courts, because the lawyers who have been most successful in translating their individualized work into part of a larger social force have been (1) those with the political and intellectual savvy to cultivate connections with the local media and local human rights organizations (Israeli and/or Palestinian) and (2) a smaller number who have the language skills (particularly English) and political stature to serve as contacts to the international media and international human rights organizations. In these ways, cause lawyering involves not simply working in support of a cause but helping to establish what that cause is, at least to the extent that law and politics intersect. Liberals have tried to mediate between the demands of [Israeli] rule and the principles of rights for people who are subjects of the Israeli state. Unlike the other subcategories of lawyers, Jewish Israeli liberals are inclined to identify with the state’s discourse on security, which is a pillar of the Israeli hegemonic normative formation. But they have sought to generate a human rights consciousness by criticizing contraventions of legality and abuses of power. Liberals use human rights discourse, specifically legal norms and values, as a means to inspire social awareness and responsibility, disseminating their knowledge about problems and violations to the Jewish Israeli public. Their transformative project is to legitimize Palestinian rights within Israeli state practices. The other subcategories of lawyers are less accommodating—if at all—of Israeli security concerns. Leftist Jewish and Arab Israelis are critical of the discourse of Israeli security, and Palestinians from the territories are outside of it entirely. For these three subcategories, the primary issue is not adherence to the rule of law (although the short-term relevance of this is not dismissed), but the human rights principle of selfdetermination, to which Israeli rule is seen as the (main) obstacle. The connections they cultivate and the strategies they deploy are aimed at ending the occupation, not simply modifying the way in which the state’s authority is exercised on the ground. Although leftist Jewish and Arab Israeli and Palestinian cause lawyers have had little success directly linking their legal practices in the military courts to the larger goals of ending the occupation, they have succeeded in drawing international attention to circumstances in the territories. International concern about the occupation


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and the ongoing problem of Palestinian statelessness was increased dramatically by the uprising, thus providing an outlet for the criticisms being articulated by cause lawyers. Cause lawyers, many of whom had been dealing with these problems for years, were well positioned to focus attention in particular ways to raise the level of human rights consciousness locally as conditions on the ground reached crisis proportions. They were also able to connect with human rights investigators and foreign journalists who were coming in droves to monitor and expose abuses. These efforts were enhanced by the fact that by the late 1980s the international human rights movement had reached a stage of development . . . where the implementation of human rights standards could be advanced, or at least advocated, with much greater force and influence. Thus, the more effective cause lawyers working in the military courts played an important role in producing knowledge about how the occupation was problematic, and the most effective ones marketed that knowledge to the international community.

Pa rt I V

Legal Confrontations—Disputing and Legal Consciousness

People often equate law with courts and legal professionals. If it really began and ended with these formal settings and actors, we might expect law to be far removed from our lives because few people spend a regular or significant amount of time with the formal law. Most people spend more time at work, shopping, or even in the doctor’s office. Yet, law is in all of these places and even in someplace as informal as our neighborhoods. As a seemingly omnipresent part of the contemporary world, law serves as a source of meaning for people in daily life. People may turn to legal institutions in disputes, of course, but law does so much more. When a university develops a policy for resolving interstudent grievances, it may look to law as a model, asking what procedures are both effective and appropriate for gathering information and for treating the parties to a grievance. When neighbors decide how to resolve a disagreement about a tree growing in two yards, they could reject a court filing as inappropriate for their relationship. In these and many other everyday encounters, meanings, beliefs, and values associated with law influence behavior and social relations. Law and society scholars have, therefore, studied disputing and legal consciousness, exemplifying the shift to understanding the cultural elements of law and seeking to explain how law retains such an important place in social life (Silbey 2005). In traditional approaches to the study of disputing, researchers examined how legal officials and the parties to a dispute behave. Such research examines the variety of ways of addressing disputes (self-help, negotiation, mediation, arbitration, and litigation), the actors involved in a dispute (the relationship between parties and the roles of attorneys, judges, and other third parties), and the actions (whether official/formal or unofficial/discretionary) taken by the actors involved. In a classic Law & Society Review article, Felstiner, Abel, and Sarat (1980–81) advanced an influential understanding of disputing, opening many new questions for scholars. Rather than accepting the perspective that the legal system simply brought in preexisting disputes as defined by the system, Felstiner, Abel, and Sarat argued that these disputes have a history that precedes the point when they become “legal” or even a “dispute.” This “transformations model” shifts the focus of analysis from the legal system (dispute processing) to the parties (the disputing process). The model— represented in Figure IV.1—holds that actors experience all sorts of injuries that could lead to disputes, but that the vast majority of these injuries remain outside the legal system. Why? 173


Pa rt IV Response: Claim accepted Settlement

Naming Experience

Changing perception

Injurious experience


Blaming Grievance

Attributing fault


Requesting remedy Dispute Response: Claim rejected

Figure IV.1. The Transformations Model (Based on Felstiner, Abel, and Sarat [1980–81])

According to the transformations model, any experience must go through three transformations before a dispute arises: naming (people’s perceptions have to change to recognize that they have been injured), blaming (people have to attribute fault to a party responsible for their injury), and claiming (people must request a remedy from the responsible party). Often, people may not make one of the transformations: by not recognizing the harm that they have suffered because they may be unaware (for instance) that they are paid less than other workers; by not attributing fault to another actor but thinking that they were harmed due to luck or their own actions; or by not requesting a remedy because they may think such a request is inappropriate or not workable. The transformations model focuses attention on questions about social and cultural influences on how actors interpret situations: How, if at all, are they likely to perceive harms? How do they attribute fault? How do widely shared beliefs shape the ways actors make decisions about legal claims? These questions matched the broader “cultural turn” in many of the social science disciplines affiliated with law and society research. Taking these questions seriously required examining law outside of formal legal settings (e.g., courts) and in the everyday settings (e.g., workplaces, neighborhoods, and consumer transactions) in which peoples’ experiences could become disputes. In these everyday settings, actors draw on ideas from law as sources of meaning or authority in ways that shape behavior and relationships, leaving some suggesting that it might be more accurate to refer to these law-like and law-related cultural elements as “legality” (Ewick and Silbey 1998). Additionally, because people actively incorporate legal ideas and actions into everyday life, how law fits into any particular setting is emergent—that is, it depends on the ongoing activities of people in that setting. Although a university’s grievance procedure might emphasize the value of friendly negotiation or mediation, the actions of students and administrators are what would actually translate these values (or other competing values) into practice. Actors’ incorporation of law into a setting has a structural character: it draws on what others

Legal Confrontations


have done before them and influences subsequent actions. Writing a letter to one’s neighbor citing law or threatening formal, legal action can signal to the neighbor that friendly negotiation has finished (and perhaps the relationship between the neighbors has changed) because there are shared beliefs about law. Accordingly, scholars have sought to understand legal consciousness: how people encounter and draw on law, legal ideas, and legal action in daily life (Ewick and Silbey 1998; Merry 1990). The analysis of legal consciousness has developed in a variety of directions and at different levels of analysis. At a more micro level, research has studied variation in and between individual understandings of law by focusing on beliefs about law. At an intermediate level, research has investigated organizational practices that shape the place of law and legal ideas in particular settings. Finally, at macro-institutional and structural levels, scholars have examined how widespread cultural ideas about law and legal practices influence social relations. This discussion of the shift from dispute processing to legal consciousness exemplifies a renewed attention in sociolegal research to social construction—how law serves as a site for the production of meaning and value that influences other aspects of social life. An emphasis on the constructed character and consequences of law underlies many of the selections in parts IV, V, and VI of this volume. Accordingly, we begin this half of the book with an excerpt that provides an overview of this “new social constructionism” in law and society scholarship before moving into material on disputing and legal consciousness.


A New Social Constructionism for Sociolegal Studies E liz abeth Me rtz

I hope to indicate a way in which social science can overcome (indeed, has been overcoming) analytic dichotomies that have plagued attempts to understand human societies in general, and the role of law in particular. [T]he concept of social construction can bring together analysis of idea and action, meaning and material life, constraint and creativity, power and resistance, stasis and change—and can do so through a form of analysis that combines empirical and critical work. Another interesting facet of this approach is its synthesis of a moderate skepticism regarding the fixed or natural character of categories—a skepticism that reaches full flower with deconstructionist analysis—with a grounded empiricism that examines carefully how social life is constructed. [A] “moderate” social constructionist vision of law . . . include[s] (1) a view of law as “underdeterminate” (but not entirely indeterminate); (2) an understanding that legal representations of social identities as fixed or coherent are often fictional, serving other than their apparent purposes; (3) a critical view of the constitution of the “local” in legal discourse, with careful attention paid to the ways in which local units and identities are actually created (at least in part) from the “top down,” through interaction with national and international legal discourses; (4) a similarly critical understanding of the ways in which concepts such as “customary law,” “authentic indigenous voices,” and “rationality” themselves reflect very particular social constructions that are far from neutral reflections of reality; and (5) a sophisticated analysis of the power of legal language to create epistemological frames. These frames, while giving the appearance of neutrality, may constrain legal discussions of social issues in ways that leave important aspects of situations go unheard. This last insight leads to the interesting question of when legal remedies can actually do the jobs assigned to them, and at what points it might be necessary to question or destabilize the very framework or categories suggested by legal discourse. Here I develop further a number of themes. Together, they contribute to an emerging integrative and moderate social constructionist vision of legal processes and discourse—one grounded in empirical study. Abridged from Law & Society Review 28, no. 5 (1994): 1243–66.




“Underdeterminacy” and Unintended Consequences: Law as Social Mediation A central theme . . . is the underdeterminacy of law as a source of social change. I use the term “underdeterminacy” rather than “indeterminacy” because [there is] not simply [an] inevitable slip between formal rule and practical application, between text and interpretation. Rather, [there are] determinacies that follow from legal frames [and] structured ways in which social actors and contexts refract and reshape those frames in practice. As we know, legal innovations have unintended consequences, at times producing effects directly opposed to those planned. This stubbornly unpredictable character of some legal processes is a predictable result of their inherently social character. By contrast with accounts that discuss law as the one-way imposition of power, where lawmakers simply mold social actors and groups like clay, the social constructionist approach developed here understands the subjects of law as agents, actors with at least some ability and power to shape and respond to legal innovations. In the struggle among those formulating legal changes and the many diverse groups of people who could be affected, law becomes a form of social mediation, a locus of social contest and construction. And yet, of course, because of its social character, legal mediation does not operate on a level playing field; . . . differential power and access to resources on the struggle and its outcomes  .  .  . can impact the course of legally mediated social change.

Coherence as Legal Fiction The approach developed here also analyzes the construction of collective and individual identity in legal contexts as provisional, fluid, strategic, [and] contested although legal conceptualization often attempts to understand identity as static and fixed. If legal texts often tell coherent, unitary stories that assume “tribes” or “families” or “communities” (or even “male” and “female”) as fixed, stable identities, then these studies show the fictional character of those stories. The analysis of social identities as instead heavily contextual, social creations provides a useful counterpoint to the static, pre-figured conceptions of individuals and groups in many legal narratives. At the same time, “fictions” can take on a life of their own; they can have powerful formative effects on the social world even if they lack empirical validity.

The Locus of Authorship: International/Local, State/Community Another interesting theme that emerges  .  .  . is the national—and, indeed, international—context of the construction of the “local community.” This perspective undermines a more usual conceptualization, in which it is commonplace to think of larger units such as international networks or national “states” as built up from smaller units such as local communities. Here, instead, we see careful analysis of the process


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by which concepts of the “local” emerge in the context of international discourses, and community units evolve not just from the “ground up” but in part in response to “top-down” state intervention. In one sense, this approach is anticipated by a vast literature on hegemony that analyzes how ideology that is adopted across segments of society may actually reflect elite interests. This ideology may appear as “natural” and as existing apart from any particular societal group or interest and yet may subtly buttress the position of particular parts of society. Or it may appear to promote interests that it actually undermines. Thus, although some “top-down” legal formulations may actually shape local units or identities, in many cases these very legal accounts derive legitimacy from their purported local roots. For example,  .  .  . colonialist reformulations of “customary law” are in part powerful because they supposedly represent indigenous peoples’ “own” rules. Similarly, the EPA [Environmental Protection Agency] in part seeks to legitimate its policies through claims that they foster local voices, and U.S. courts purport to protect and represent local Native American interests. There is a deeply ironic contradiction involved in discourses that actually rupture or disempower local people while claiming as a key raison d’être that they foster local “communities.” Social-Cultural Construction and Contest: Reinventing “Custom,” “Authentic Voices,” and “Rationality” [C]oncepts of local “custom” and of “customary law” become reworked in a sense, invented in the interaction with Western law. In this perspective, the translation of local life and daily practices into formal legal and/or bureaucratic categories is not simple or transparent. Instead, the very task of formulating these practices as “law” translatable in Western or formalist terms can be seen as imposing a fundamental alteration of local understandings and meanings. Political and legal anthropologists engaged in heated debate over this issue at a theoretical level from very early times in the development of legal anthropology, asking whether anthropologists should or could perform this act of translating indigenous customs as “law.” However, it was not until recently that sustained questioning was extended to versions of “customary law” that emerged from the interaction between colonial regimes and indigenous peoples. Earlier, more naive anthropological accounts that at times accepted aspects of these renditions of “customary law” on their face have now been replaced by more sophisticated analyses that look carefully at the translation process itself. Similarly, there is now a vigorous questioning of the search for the “authentic” indigenous voice that can speak for whole communities or cultures; it appears that more often than not this demand by colonizers for authenticity imposes an approach that simplifies and renders unitary the complexities of local life. At the same time, the colonialist elevation of a single “authentic” indigenous voice above others actually shifts power relations at the local level. When colonizers seek to find and systematize local “customary” law, and attempt to locate the “authentic” voices who will articulate that local knowledge, law in its search for authenticity becomes a central figure (or “trope”) in colonialism itself.



At the same time as conceptions of “customary law” and demands for “authenticity” call for reexamination, particular conceptions of “rationality” that have been imported to many local arenas as part of legal categorization are also problematized. Rather than viewing the notion of “rationality” as somehow standing above and apart from the cultural context from which it came, [this perspective asks] how this and another similar categories function in legal contests: In what ways do “rational choice” models themselves reflect hidden cultural assumptions that may conflict with local values and processes? Legal Discourses and the Power of the Frame: Destabilizing Classification Systems The observation that there is power in legal categorization is by now fairly routine in legal studies; we are not surprised to find that it matters whether someone can succeed in getting themselves defined as a member of a “suspect” classification for purposes of legal redress. The social constructionist approach, . . . however, takes us one step further: It asks how the assumptions underlying the very system of classification itself matter—how they fit with or do violence to social systems and expectations, how they mold people and communities with detrimental or empowering effects. [A]lthough immediate legal success might result from fitting into existing categories, these short-term victories leave intact an underlying system of categorization that often ignores important aspects of communities’ and individuals’ lives. Ultimately, . . . some groups and individuals will continue to suffer at the hands of the law until they manage to put in question or “destabilize” the very frame that yields the legal categories that define them. Of course, legal categorization is in a sense not that different from any form of social categorization; every act of dividing people up into “types” or “categories” involves some degree of reification, of noticing only some aspects of those people while ignoring their complexity, ambiguity, and uniqueness. Thus a more complicated question emerges—not whether law reifies, but how, to what degree, with what consequences. [A]lthough some fixing of identity may be inherent to social categorization of many kinds, so is contest over the reconfiguration and change of categories. Furthermore, when this process of configuring and shifting social categories is moved into legal domains, it often takes on a different character. For example, writing social categories into law may render more static a relatively fluid social process in which categories are continually fixed and unfixed—or it may differentially empower certain portions of society. Then again, it may validate one vision of social identity or one mode of classification as opposed to many other possible configurations.

Conclusion A growing sense of uneasiness is emerging from a number of quarters regarding the value of critiques that have been generated by some social scientists and by critical

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theorists of various kinds. Some have read deconstructionist work as an indulgent pessimism, giving us scathing critiques of everything under the sun and little guidance as to how to proceed and all this in language that they find at times to be annoyingly, even smugly, indecipherable. At worst, this can cause the more pessimistic among us to throw up their hands and imagine that these developments signal abandonment of efforts to find any meaning whatever in legal texts. Or, alternatively, it can lead to an impatient rejection of the insights to be gained through the careful questioning of our own frameworks urged on us by many deconstructionists. Indeed, despite a long tradition of empirical work on law by anthropologists, sociologists, and others using interpretive and qualitative methodologies, there is even in some quarters a sense that these (and other law-and-) approaches are “impractical” exercises of little actual value or import. [J]udicious application of interpretive social-scientific perspectives and critiques can yield insights that hold both theoretical and practical significance. It should be of some practical interest for law reformers to know that unexpected gender consequences can follow from gender-neutral statutory language designed to remedy colonialist intrusions on indigenous family structure, that unexamined images of community lurking behind agency reports can thwart legislative purposes, that the apparently neutral language of rational choice theory can serve to silence and obliterate the perspectives of local “communities” supposedly due respect and protection. Or it could significantly alter the ability of people at the local level to achieve their goals if they understood that some forms of legal discourse are simply incapable of translating certain concerns, or that some legal language that gives the appearance of great deference to local concerns actually masks indifference to or active rejection of local values. Alternatively, understanding the ways in which some national and international law discourses can provide effective vehicles for promotion of local interests might also be of some practical use. In none of these cases does the move to interpretive analysis yield a bottomless nihilism regarding the possibility of knowledge. Indeed, we see that this kind of sociolegal study performs a crucial service in attempts to understand how law actually works on the ground. For all its power, quantitative analysis lacks the capacity to provide careful on-the-ground examinations of the very categories of phenomena that are to be counted. Much is already given, or given away, by the time subjects are classified into these categories and asked questions that presuppose major aspects of the terms of discourse. The subtle but crucial understandings that emerge from carefully grounded ethnographic and interpretive work of the kind presented here can yield important information as to the actual reception of legal interventions by those who are the intended (or not-intended) subjects of law. It can also provide important data on the translation process through which statutory or bureaucratic or caselaw language takes on meaning in practice. In sum, what could be called a “moderate” or “empirically grounded” social constructionist approach emerges from recent work. [A]cceptance of the constructed character of social categories and understandings need not lead to epistemological or moral nihilism. The authors take strong positions about the relative soundness of



different constructions of social reality, making it quite clear, for example, that the EPA’s construction of “community” is not well grounded in what we observe of local groups in industrial areas or that federal courts’ and agencies’ construction of Native American groups, histories, and culture misses much of what we know about the subject. It is not all the same to these scholars whether one chooses one form of socially constructed knowledge over another; they look carefully at the contexts and effects of such choices, insisting on a more social vision that tests constructs against experience and observation. These authors also ask that we confront the real moral choices often concealed by the cultural and legal frameworks they analyze and take apart for us. Their critiques are in a sense grounded by empirical work, which provides an important check against the potential excesses of pure theory. And yet we do not have here mere catalogues of “facts” or descriptions that are naive about the conditions of their own production. Nor do these critiques stay at the level of individual experience to the detriment of more structural understandings of the social forces in play. Rather, the blend of data, theory, and reflexive awareness yields informative analysis of the way law impacts people’s lives, and of the way people respond to and shape the realization of law in practice. This analysis quietly performs a trenchant critique of the hypocrisies of some forms of legal practice, laying bare their harmful effects, celebrating resistant uses (and exiting) of legal processes, suggesting possibilities for reform—and all this carefully grounded in the empirical observation of social practice.

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Litigating within Relationships Disputes and Disturbance in the Regulatory Process C a ry C o g l ia n e se

Conflicts pervade society, and legal institutions provide means of resolving those conflicts. The role courts play in society depends in part on when (and why) people seek out these institutions to resolve disputes. Over the years, researchers from several disciplines have extensively examined what leads people to step outside their ordinary patterns of interacting to resolve disputes through litigation. Past research provides remarkably consistent findings: Litigation usually arises as a last resort, signaling either a breakdown in social relationships or a lack of close relationships at the outset (e.g., Macaulay 1963; Galanter 1983; Ellickson 1991). Most people do not rush to sue each other when confronted with a dispute. When litigation does ensue, the disputants are almost always outsiders, strangers, or others who lack any anticipated future relationships. By now the proposition that litigation arises mostly between strangers seems commonplace. But exactly why is litigation reserved mainly for those people having the most social distance between them? The answer to be drawn from past research is that litigation amounts to a form of social defection which either breaks down working relationships or keeps those who want to preserve their relationships from suing in the first place. Short of physical violence, litigation is taken to be one of the worst kinds of social interaction. When viewed as something inherently adversarial and punishing, litigation assumes a set of invariant qualities. One lawsuit is thought to be like any other. Under this assumption, differences in relationships have been the primary explanation advanced for why people resort to litigation. Yet the research giving rise to the dominant view of “litigation as defection” has examined disputing in only a limited number of social realms, such as those involving neighbors or businesses. Disputing in other arenas, where the structure or social meaning of litigation may be different, has received much less scrutiny. Notably lacking has been attention to disputing in the context of regulatory policymaking by government agencies. This lack of research is striking given two well-accepted propositions found in the literature on the U.S. regulatory process, namely, (1) that regulators and interest groups work closely together on an ongoing basis and (2) that they also take many of their disputes to court. These propositions seem puzzling Abridged from Law & Society Review 30, no. 4 (1996): 735–65.



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from the standpoint of a “relationship theory” of disputing. If litigation amounts to a form of defection, what explains the presence of recurrent litigation within ongoing regulatory relationships? The answer to this puzzle emerges from a closer examination of how litigation affects ongoing patterns of interaction between regulators and interest groups. In this article, I examine the effects of litigation on relationships between interest groups and the U.S. Environmental Protection Agency (EPA). My findings . . . directly contrast with the prevailing relationship theory of disputing. Unlike in other settings, litigation in the context of interest group disputes over EPA regulations occurs within established relationships between interest group representatives and agency staff. More surprising still, those interest groups having the most extensive, long-standing relationships with EPA tend to be the ones most likely to go to court challenging the agency’s regulations. By comparing regulatory disputing with disputing outside the regulatory realm, I find support for an alternative theory that both explains the puzzling findings of my research and builds toward a more robust account of the use of litigation as a means of resolving conflict. The disturbance theory developed here takes account of the different ways litigation can affect prior modes of interacting. It draws attention to differences in litigation as well as in relationships. In the regulatory setting, the type of litigation employed creates at most a small disturbance to relationships between interest groups and the EPA. Litigation challenging EPA rules does not signal an end to relationships, but is usually just another round of an ongoing process of bargaining.

Theories of Disputing and Ongoing Relationships Three theories of disputing converge on the prevailing view that lawsuits arise when relationships between disputants are distant, fleeting, or simply over. The first of these three research traditions, the sociolegal tradition, follows from Stewart Macaulay’s (1963) classic study of disputes occurring in business relationships. Macaulay found that persons engaged in business relations seldom worried about the precise formalities of contract law. Moreover, when disputes arose over business transactions, they were usually resolved informally between the parties without any resort to lawyers or litigation. It was mainly when a relationship had come to an end, such as in disputes over the termination of franchises, that business partners were willing to go to court to settle a dispute. The thrust of Macaulay’s findings has been confirmed in other settings. Sociolegal scholars typically find that litigation is a matter of last resort. Their research indicates two principal elements of a relationship that are crucial in understanding how people will choose to resolve disputes: (1) the closeness of the relationship and (2) its future. The conclusions reached by sociolegal scholars share an affinity with those of a second research tradition, that of game theory. Game-theoretical analysis, particularly analysis of iterated prisoner dilemma games, suggests that over time persons continually relating with each other develop cooperative modes of acting. Game theorists predict that when people expect to be dealing with each other repeatedly in



the future, cooperation will begin to emerge even though it might not seem in each party’s initial interest to do so. A third scholarly tradition—political science research on interest group litigation—has long treated litigation as an “outside” political strategy.

Litigation Challenging Environmental Regulations To test whether organizations involved in ongoing relationships with a regulatory agency also tend to avoid litigation with that agency, it is necessary to determine who works most closely with the agency and who challenges its regulations in court. The EPA seemed an especially promising site for investigation because its regulations have been widely believed to generate much litigation. To measure the participation of interest groups in the rulemaking process at the EPA, I collected data on the written comments submitted on all significant hazardous waste rules issued from 1988 to 1990. I supplemented my archival data with about 50 semistructured interviews with interest group representatives and EPA personnel, as well as with additional interviews with sources involved in rulemaking at other regulatory agencies. Interest Group Participation in EPA Rulemakings Interest group representatives, both from environmental groups and industry organizations, interact with the EPA across several stages of rulemaking and over a range of issues. The types of participants in EPA rulemakings are remarkably diverse: from individual citizens to individual members of Congress, from local commissions to federal agencies, from small gas stations to giant petroleum corporations. Environmental groups include the Environmental Defense Fund (EDF) and the Natural Resources Defense Council. Industry groups include corporations such as Chemical Waste Management [and] trade associations such as the Chemical Manufacturers Association. During the period 1988–90, the EPA promulgated 28 significant hazardous waste regulations. These were rules issued under the Resource Conservation and Recovery Act (RCRA) and listed in the EPA’s regulatory agenda, a semiannual list of the agency’s most significant rulemakings. A total of 1,275 organizations and individuals filed comments on at least one of these rules. Since some participants commented on more than one rule, the total number of comments amounted to 1,668. Despite the diversity of organizational types, industry groups (i.e., business firms and trade associations) participated the most. Nearly 67% of all the participants came from industry; only 2% were from environmental groups. The remaining commenters included representatives of state and local government, members of Congress, individuals, and representatives of other federal agencies. [M]ost groups and individuals participate infrequently. Of the 1,275 participants examined, 87% (1,106) participated by commenting on only one of the 28 hazardous waste rules. Some groups, though, participated by commenting on as many as 11 of


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these rules. The most active stratum of participants, those that were involved on average in more than 2 rules per year (or 7 or more total for the 3-year period) consisted of only 16 organizations, or little more than 1% of all participants. Interest Group Litigation against EPA Which groups do sue EPA? I collected data on filings of litigation challenging EPA hazardous waste rules issued between 1988 and 1990. For the years 1988–90, 13 of the 28 significant and major hazardous waste rules EPA issued ended up getting challenged in court. On the one hand  .  .  . [e]nvironmental groups made up about 2% of all the commenters but 8% of the litigants challenging these same rules. Their overall litigation rate (i.e., the number of rules challenged divided by the number of rules commented on) also indicates that environmental groups have a greater relative propensity to use the courts. Environmental groups had a litigation rate of 26.5% compared with 20.2% for trade associations and 4.6% for corporations. On the other hand  .  .  . industry groups filed 67% of the comments and 90% of appearances in the challenges to EPA rules. Both in rulemaking and in litigation, industry groups are the most common players. [I]n the regulatory context it is quite common for active groups to have filed suit against the EPA. Of the most active groups (those with 7 or more comments), 63% had been involved in at least one lawsuit challenging a hazardous waste regulation issued between 1988 and 1990. The comparable rate for groups with 3–6 comments (32%) was lower but still substantially higher than the rate for groups with 2 or fewer comments (3%). Moreover, taking together all the industry and environmental groups filing comments in the 1988–90 rulemakings, the litigation rate for each group is positively correlated (0.23) to the number of comments filed by that group. Thus, not only does the overall amount of litigation increase with an interest group’s participation in agency rulemaking, but so too does the relative frequency with which a group goes to court. The Compatibility of Litigation Interest group representatives who work with the EPA on a regular basis do not express any concern for how the filing of a petition might affect their relationship with agency staff. When asked about the possible impact, both environmental and industry group representatives consistently reported that litigation did not adversely affect relationships with agency staff on other issues. Some of their responses illustrate litigation’s compatibility with their ongoing relationships: [I]n my experience it’s rarely acrimonious. It’s a pretty small community. The environmental bar is not that extensive. Every one knows one another and has worked with one another over the years and so it’s almost, it is sort of “clubby” if you will. I know most of the people we sue. I mean, you have to put a name in there, so you generally sue the administrator of EPA basically. And back when Lee Thomas was the



administrator, Lee was one of my better friends here in Washington and we were suing him. But we would still go have a beer.

Agency staff similarly expressed little resentment about having a rule challenged. As one EPA attorney put it, “It is not considered a failure.” Indeed for some, it is actually taken as a sign of success. If a rule prompts court filings by industry and the environmental groups, then some staff think “we must have done the right thing.”

Explaining Regulatory Disputing: Relationships Existing theories of disputing emphasize the continuing, future-oriented, and multifaceted nature of relationships. Along these dimensions, interest group–agency relations do not seem to differ all that much. On closer examination, the continuing relationships of the regulatory process bear a close resemblance, at least on the dimensions that would seem to matter most, to relationships between neighbors or business persons. If anything, the mutual dependence of interest group representatives and agency staff members could perhaps be considered greater than that between neighbors or certain business partners. Interest groups and agencies, much like neighbors, will not suffer any and all harms against each other just because they find themselves in long-term, mutually dependent relationships. The explanation for why regulatory relationships coexist with litigation does not rest, therefore, with the relationships themselves. These relationships are neither immune to nor somehow specially adapted for absorbing harms, such as litigation. Rather, those involved in these relationships simply do not consider regulatory litigation to be a harm. Understanding why interest group representatives and agency staff members do not consider litigation challenging EPA rules as a harm leads ultimately to a more robust theory of disputing.

Explaining Regulatory Disputing: Litigation It is widely recognized that relationships can vary in assorted ways; however, much less acknowledged in the literature on disputing are the ways in which litigation varies as well. Differences between types of litigation begin to explain the convergence of litigation and ongoing relationships in the regulatory process. The type of litigation used to challenge EPA rules permits, if not even fosters in some ways, cooperation between interest groups and the EPA. The Typical Harms of Litigation [I]n many contexts, litigation gets interpreted as a harm. First, litigation requires the other party to incur expenses that could otherwise be avoided. Second, litigation brings third parties into the dispute, complicating the bilateral relationship between the parties.

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These third parties, such as lawyers and judges, may impose a different style of reasoning and communicating on the relationship than previously existed. Third, litigation proceeds with formalities—certified letters, oaths, signed affidavits, and the like—that themselves can put distance into a relationship. Finally, litigation typically makes accusations. Lawsuits implicitly attack people’s character. They make problems personal. Despite the disruptions that lawsuits can impose, not all lawsuits are the same. Some types impose lesser costs than others. Some do not require that lawyers be retained, while in others the involvement of judges is minimal. Some lawsuits require fewer formalities, and some make less inflammatory accusations than others. For example, appellate court litigation, which is conducted largely on paper, may exhibit less visible hostility than do jury trials. In the American legal system, where litigation is largely party-driven, litigation itself may possess both cooperative and noncooperative qualities. Much can depend on the parties and their lawyers. As a consequence, litigation need not be considered as inherently harmful conduct. The Nature of Litigation Challenging EPA Rules At least when compared with other types of litigation, regulatory litigation challenging EPA rules proceeds quite unobtrusively. The opening period of litigation in judicial review cases contrasts with civil cases in trial courts. The parties in judicial review litigation are not required to file pleadings such as complaints and answers, staking out opposing positions early in the game. No discovery takes place, so neither interest group nor agency staff members find themselves compelled to answer lawyers’ questions under oath or turn their filing cabinets over for scouring by outside paralegals and attorneys. What does happen after the filing of a petition for judicial review looks a lot like the activity the participants are most used to conducting: ongoing negotiations continue, and new negotiations begin. Interest group and agency staff members consistently emphasize that settlement negotiations are a routine part of judicial review litigation challenging EPA rules. As an indication of the level of such settlement activity, consider that nearly half of all the petitions for review filed against the EPA in the D.C. Circuit Court of Appeals between 1979 and 1990 ended with a voluntarily dismissal by the parties—before any oral hearing was held by a judge. This rate may initially seem small compared with the common (but mistaken) belief that 90% of all trial-level cases settle. In fact, it is notably high when compared with the settlement rate for appellate cases. The settlement rate for EPA rule challenges in the D.C. Circuit (47%) is nearly twice that for all appeals (25%) and substantially more than the rate for all administrative appeals (28%). Bargaining and settlement appear more dominant in EPA rulemaking cases than in administrative appeals in general. The structure and practice of litigation challenging EPA rules lacks the features of other kinds of litigation that are thought to lead to harm and adversarial posturing. With so much settlement activity, interest groups sometimes file an action against the EPA just to maintain a seat at the bargaining table.



Advantages of Administrative Litigation for Interest Group–Agency Cooperation Litigation over EPA rules is more than just nonobtrusive and dominated by bargaining. This administrative litigation actually holds at least three advantages for interest groups seeking to negotiate cooperatively with the EPA. First, litigation can allow groups and the agency to escape strict congressional deadlines. Once a rule is made final, the EPA has met the statutory deadline even if it goes back later and rewrites portions of the rule. Second, litigation narrows the number of groups in the negotiation process and changes the dynamics of bargaining. While each rule issued in 1988–90 elicited an average of 45 commenters, only about 5 litigants on average were involved in the actual litigation over each challenged rule. Finally, litigation offers interest groups and the agency an opportunity to do something they were not permitted to do in the notice-and-comment period: negotiate in secret. The advantages of litigation for reaching cooperative solutions may or may not be considered socially desirable. The winnowing effect described above may well create some systematic biases against certain kinds of groups participating in policy decisions made under the guise of litigation. The use of litigation to engage in exclusive bargaining over public regulation certainly raises questions about procedural legitimacy. Whatever the answers to such questions, the important implication for disputing theory is simply that judicial review litigation does facilitate cooperative bargaining by the organizations active in EPA rulemaking.

Litigation and Disturbance in Regulatory Bargaining The puzzling findings reported in this article reveal a need to expand and clarify our understanding of disputing and litigation. The conventional view tends to homogenize both litigation and relationships, without acknowledging how important differences can exist in both the nature of relationships and the nature of litigation. To explain why interest group–agency relationships can coexist with repeated litigation, it is necessary to take these differences into account. Focusing on the concept of disturbance shows how these differences matter, bringing together the past discussion of both relationships and litigation. By disturbance, I mean the relative amount of disruption or change created by moving from one mode of relating or disputing to another. The notion of disturbance, for example, seems implicit in the standard sociolegal account of the transformation of disputes (Felstiner et al. 1980–81). Disturbances often come about because of additional costs that the parties to a dispute must incur. However, the absolute costs created by a new method of resolving a dispute (such as litigation) are less important than relative costs, and costs by no means need be thought of strictly in terms of legal fees. A dispute resolution alternative can be expected to be used more readily by disputants engaged in an ongoing relationship when it creates at most a small change between itself and the existing pattern of the disputants’ relationship. When the costs of

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litigating are relatively high and the costs of relating relatively low, filing a lawsuit will create a large disturbance. This is the situation found commonly among neighbors and certain business partners, where a move to litigation would mark a dramatic change in the existing pattern of relating with one another. These private relationships tend to have lower overall costs and formalities than litigation, so persons in such ongoing relationships can be expected to resort to litigation at best only infrequently. A number of interest groups  .  .  . have ongoing relationships with the EPA. These groups nevertheless can sue the agency and maintain their relationships because the filing of a lawsuit does not impose a large disturbance on the agency and its staff. [T]he costs of judicial review litigation are relatively low. Indeed, litigation can sometimes help protect the agency staff and interest groups from third parties, providing a forum within which only a limited number of groups participate and sometimes helping shield agency officials from oversight by others such as the Office of Management and Budget. Absent from judicial review litigation, but not from other types of litigation, is the element of personal accusation. Judicial review litigation does not itself necessarily amount to an accusation or a personal attack. If done in a certain way it might, but groups communicate with agency staff to let them know that they are just suing over the policy decision, not attacking the character or competence of the agency staff. By speaking of litigation as simply a matter of filing a “protective petition,” interest group representatives help keep agency officials from becoming uneasy about their intentions.


Pursuing Rights and Getting Justice on China’s Ethnic Frontier, 1949–1966 Neil J. Diamant

It seemed like just another ordinary fall day in a village of the Yi minority community in Yunnan Province, on China’s southwestern border. As the sun rose over the glistening fields, families woke up and began their chores. Sometime later, their tasks completed, several young women, laden with recently harvested produce, met in the village square to go to the market town, as was their custom and duty. This was not an easy trip: Yunnan was a poor, mountainous province with few paved roads, railways, or motorized transport. After walking for several hours, they arrived at their destination. The market town, located in a valley, was bustling with peasants who had streamed down from mountain villages. The sounds and smells of donkeys, goats, squealing pigs, and terrified chickens filled the air as the women took up their positions on the roadside to hawk their produce. By early afternoon they were finished. Their responsibility fulfilled, and with some free time on their hands before their return trip, the women decided to wander a bit. Passing through the town’s main thoroughfare, they saw the gated building of the county’s political administration. Nearby was the court. Noticing a crowd gathered inside, the women decided to see what was going on. This activity, a cultural practice known as kan renao, or “getting in on the fun,” was not entirely novel, as rural folk in the area (as well as in others) had been known to “gather around” any event that broke the monotony of life and promised free entertainment for a while. On this particular occasion, the Yi women were witnessing several divorce cases. Taking in this scene, some of the Yi women who had come to town to market their produce decided that they, too, wanted a divorce. They approached the clerk and the judge and demanded a divorce on the basis of the People’s Republic of China’s 1950 “Marriage Law,” which allowed divorces if marriages were “arranged” or “coerced” by parents or other members of the community. The Yi women testified that indeed their marriages had been coerced, and this gave them the right to divorce. The court granted their requests, despite the fact that their husbands were not present in court. Their divorce papers in one hand and the money they received from selling their produce in the other, they made their way back to their village. Upon Abridged from Law & Society Review 35, no. 4 (2001): 799–840.



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arrival, they presented their husbands with the divorce papers. Aghast that their wives had divorced them, the aggrieved husbands marched off to complain to their local officials. The local officials were also incensed, and worried that if village women could divorce so easily, soon the village would be left without any young marriageable women. The courts, they complained, decided cases in a “rash and careless” manner. This problem was compounded, they argued, because the Yi minority is particularly litigious and prone to divorce. Courts, however, were not convinced that this was correct, and proposed a political explanation instead: Yi women were divorcing because their “consciousness had been raised.” A court also noticed that “the more we intervene, the more divorces there are.” Statistics from the early 1950s bear out this observation. Court-granted divorces were a rarity before the 1949 Communist Revolution in most areas of rural China. In 1950, the Chuxiong Prefectural Court handled 510 divorce cases, but this number shot up to 6,600 by 1953, a twelvefold rise. Calculated on a household basis, as many as 5% to 8% of families experienced a divorce per annum between 1950 and 1953. Most divorce cases were settled in women’s favor (women represented well over 80% of plaintiffs). In some areas of Yunnan, 100% of cases were adjudicated in the woman’s favor. Minorities in the province—not only the Yi—divorced at the same rate as the Han Chinese. Moreover, evidence shows that the rate of rural divorce in Yunnan Province continued well into the 1950s and early 1960s. In one county, there were as many divorces in the early 1960s as there had been in the early 1950s. This finding is particularly striking considering that after 1953, when the government mounted a vast (and last) national campaign to implement its new Marriage Law, the state ceased the law’s proactive implementation. Taken together, these data raise important questions concerning the role of law in social change, community, gender, ethnicity, and legal culture, questions that are relevant both to the study of law in China and to larger debates in the law and society literature. Just what led these women to court, and what factors led to a favorable outcome (from their perspective, not their husbands’)? In this article I aim to figure out this puzzle. In doing so, I will rely upon a treasure trove of archival documents chronicling how the Chinese Marriage Law of 1950 was implemented and interpreted in rural and in urban China. Does this evidence point to the importance of the state, or to ethnic, gender, cultural, or generational variables, or some combination of these? Although both the puzzle and the empirical evidence emerge from rural China, the answers to the questions posed above should be of considerable interest to scholars working on comparative law and law and society. This story, then, might easily be framed around the categories of modernization theory: To what extent can “modern” laws change the way rural cua, “traditional,” people interact in family matters? [E]very available account on the implementation of family laws by revolutionary states (France, the Soviet Union) clearly shows their ineffectiveness in rural areas and relative effectiveness in cities, particularly among the educated elite. A brief glance at ancillary literature on mediation and legal access lends support to this view. According to William Felstiner (1974), people who know each other— such as villagers living in small, relatively isolated rural communities such as the Yi



in Yunnan—tend to prefer mediation to adjudication. Furthermore, if Charles Epp’s (1998) comparative study of the conditions for a “rights revolution” has any bearing on the China case, we would not expect Chinese peasants to successfully mobilize and act upon their rights. Epp found that in India many well-intentioned laws have little impact on the ground, largely owing to people’s inability to mobilize financial resources rather than to deficiencies in the laws or the apathy of high courts. In Yunnan, people were generally quite poor when they were granted new rights, but Chinese women, despite their poverty, managed to construct what Epp aptly calls a “support structure for legal mobilization” (1998: 3) and use the state legal system to divorce their husbands. If many officials opposed the Marriage Law owing to patriarchal views, exactly how did it have any impact? Was the social change taking place after 1949 the direct consequence of the law, or rather the byproduct of the political and social mobilization that accompanied it? In what follows I argue that the substantial increase in divorce in Yunnan was, in many ways, the by-product of rural revolutionary politics in the area and not the direct consequence of the Marriage Law itself. The state, I suggest, did not intend to radicalize ethnic minority women; instead, this happened because other revolutionary policies, particularly land reform, led to new demands on the state.

The Marriage Law and Southwest China Notwithstanding its modest-sounding title, the Marriage Law went well beyond marriage-related matters. It not only banned arranged marriages, bigamy, underage and minor marriages, and allowed easier access to divorce, it also advanced a decidedly modernist vision of “proper” family structure. Arranged marriages were simply assumed to violate individual will; community oversight over marriage could not possibly lead to a satisfying and happy marriage (and, by implication, unhappy marriages would result in an unproductive citizenry). In its vision, its rearticulation of state-family relations, and its scope of enforcement, the Marriage Law of 1950 dramatically departed from past patterns. Whereas some Imperial regimes promulgated family laws, and courts heard a wide range of cases, ordinary people still had to initiate legal proceedings. In contrast, the Chinese Communist Party (CCP) demanded mass official and popular participation on a nationwide scale. This requirement placed many officials in a difficult predicament, since Chinese legal tradition offered them very few specific guidelines for how to deal with problems that until recently were defined as personal, family, or community affairs. From the standpoint of political history it would be hard to find a less hospitable environment for implementing a new family law than southwest China. This situation is also true in terms of minority groups’ economic resources and ability to access state legal institutions. Rivalry over scarce and inequitably distributed resources shaped the nature of social interaction with legal authorities as conflicts over resources pitted one community against another, fostering a fairly rigid hierarchy of power among them. This rivalry also encouraged a highly militarized and often litigious political


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culture of a type that is usually said to be inimical to the implementation of central state law. In addition to poverty and a hierarchical social structure, cultural practices did not appear to have encouraged the use of state courts for divorces. The record suggests that marriage and divorce were usually community, rather than state, affairs. Community involvement in marriage and divorce is important to our initial puzzle in several ways. In the West, divorce is usually conceived as an individualistic enterprise, a breaking away from community or family ties. In Yunnan, however, it is quite clear that the individual was inextricably tied to the larger collective. Because of this tie, most of the scholarship saw the Marriage Law as incompatible with Chinese rural life. Yet, it is equally clear that minority women in Yunnan Province did divorce, and did so without moving to cities and acquiring a more individualistic identity. Moreover, they went to Han-dominated courts to divorce in groups, and divorces were granted to them by a Han Chinese state that historically had usurped their land and had considered minorities to be “barbarians” in need of superior Han culture.

State-Minority Relations As much as it is easier to speak of the relationship of “minorities” to the Han Chinese, it is clear from southwestern history that minority groups rarely presented a united front against Han Chinese conquest. There were struggles over scarce resources within and between groups, which were often exploited by central state leaders to pacify the local population. Arrangements between the state and minority leaders were but one part of a package of policies intended to secure the southwestern region of the empire and bring about the inclusion of minorities into what was considered the culturally superior Han Chinese civilization. At least according to official policy, the PRC [People’s Republic of China] state was as sensitive as its Imperial counterpart to differences between Han and “minorities” and was careful not to intensify preexisting conflicts and cleavages within groups. More than this, the PRC state, facing security threats along some of its long borders during the early 1950s, was hell-bent on pacifying areas that had long been prone to extensive militarization. Yunnan, with its warring minority groups, history of separatism, and antagonism to the central state, was certainly such an area. During the initial stages of the Revolution, weaker minority groups thus learned that district governments, despite being Han, unfamiliar, and new to the area, could be used to solve all sorts of community and resource-based grievances. Whether because of its coercive power or its ability to serve as relatively objective outsiders to interethnic conflict, government institutions associated with central state power came to be seen by the region’s residents as legitimate, powerful, and helpful organizations. This perception of the state intensified when land reform began in late 1951. In many cases the violent and revolutionary struggle over land widened preexistent cleavages in minority villages by terrorizing political and economic elites and older people. This pattern of state-minority relations in Yunnan from the late 1940s to the early 1950s clearly shaped the outcome of the Marriage Law. Because of previous intercommunity conflicts among minority groups, the post-1949 state was forced to expand



its mediatory and adjudicative roles, which later spilled over to the domestic sphere. Conflicts that minority elites would have handled in the pre-1949 period were transferred to the Communist state, as minority elites abandoned their traditional roles when they thought about the possibility of facing CCP persecution. At the same time, when the state intervened in disputes and favored those at the lower rungs of the local status hierarchy, other powerless groups learned that the power of the state might be invoked for their benefit as well.

Generational Conflict and the Marriage Law The Marriage Law, by explicitly attacking the values and practices of “feudal” China, was therefore an implicit attack on the people who, knowingly or unwittingly, supported that system. When propagandizing the law in villages, [government officials] did not bother to recite specific articles of the law, but instead adopted simplistic rules of thumb, such as “men are bad, women are good,” or “old people are wrong, daughters-in-law are right.” As might be expected, such a sense of freedom destabilized family relationships, and not a few young rural women, convinced that the state would now support them, flocked to state courts to petition for divorce. Reports show that the number of divorce cases received by state institutions doubled, and sometimes tripled, after land reform and the Marriage Law. Courts frequently granted divorces based on a woman’s unverified claim that the marriage had been coerced or arranged. Generational empowerment thus appears to be an attractive explanation for the behavior of the Yi women described at the outset, as well as for the spike in divorce cases after the Communist Revolution and the implementation of several key policies. Because rural social structure in the pre-1949 period made divorce difficult to obtain, it makes intuitive sense that when politics shook up and “loosened” that structure, it would be easier for women to access state institutions to divorce. Yi women, therefore, had more opportunities to escape from their families than did their urban counterparts. In cities, the state did not disrupt family structure. Instead, it focused on the restoration of political, social, and economic order, rather than pitting one generation against another. While analytically satisfying, generational empowerment resulting from the Revolution probably does not explain everything. After all, worldwide, most divorce occurs among the young. Moreover, a general sense of empowerment among youth does not necessarily explain how women actually acted upon their desires and how they overcame numerous obstacles in their path.

Community and Mediation The general theoretical proposition is as follows: Where social ties are dense, there is less access to the state; where ties are thinner, there is greater access. In rural Yunnan,


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women were clearly enmeshed in overlapping networks of family, ethnicity, kin, and community, “dense” ties that would seem to work against their ability to access the state’s legal apparatus. In several instances, this certainly was the case, as disgruntled husbands mobilized villages’ political and security establishment to arrest and even rape divorce petitioners. In other instances, however, community had the exact opposite effect: Precisely because village ties were dense everyone knew about each others’ personal weaknesses and peccadilloes, and this made making supra-village political and legal institutions the preferred address for people embroiled in family and community conflicts. What made such state institutions attractive, as well as legitimate, in the eyes of ordinary villagers was the rural revolution’s replacement of older village elites who had “face” or status with inexperienced, “face-less,” young men. Archival sources clearly demonstrate that rural officials, precisely because they were embedded in social networks and were inexperienced in handling domestic conflicts, pushed divorce cases to courts and other higher-level authorities, despite their patriarchal interests. This coincidental constellation of traditional cultural practices and revolutionary rural politics made distant legal institutions both accessible and politically desirable. According to one report, mediators feared “committing an error and being criticized,” and “being held responsible if someone dies.” Action flowed from these considerations, with mediators instructing petitioners to “go to court” and let judges deal with the disputes, rather than addressing them in the village.

Community and Collective Action In addition to facilitating a legal strategy focusing on appeals to supra-village institutions, community also made it easier for some peasants to sue for divorce because it provided the organizational basis for collective action. In Yunnan, divorce could be a collectivist enterprise. When village officials were instructed to implement the Marriage Law, many immediately realized that it would be extremely unpopular among men. In many cases, the same officials who were expected to enforce state policy resisted it most violently, sometimes using male-dominated village institutions, such as militias and peasant associations, to beat and lock up women who “dared” to petition for divorce. Often, village officials brutalized the first woman who petitioned for divorce, believing that such action would deter others from following her precedent. Although this sometimes succeeded, all it took was one case of success—a particularly feisty woman willing to take a risk and bear the “start-up costs” of collective action—to establish a precedent for other women and to lower the risk of subsequent challenges to village authorities. Village officials thus found themselves in a pickle: They wanted to prevent divorce, but they knew they could not lock up or kill all of the village’s young women. Nor could they prevent women from discussing marriage and divorce with one another. One can only guess at what was discussed in these informal gatherings, but . . . [o]ne report noted that in villages “women want to divorce, but cannot decide who



will take the lead.” They would go when they “saw others” go to court. Indeed, courts complained about women coming in groups to divorce, as well about as the ruckus caused by women loudly talking about their marriages. The behavior of Yi women who went to court in 1956 might very well be explained by the fact that they were probably from the same village, and thus knew each other well. When they returned to their village they were able to present a united front against their detractors, giving the women strength in numbers. In other words, divorce in rural China should not be conceptualized as the end product of individualization or modernization but rather as the result of relatively high levels of trust, solidarity, and willingness to take risks within group settings. This analysis suggests that we might need to shift the theoretical framework from one that places the individual front and center to one that focuses on the conditions for successful mobilization of law.

Culture and Law [T]here is ample literature demonstrating differences between Han and minority cultures, particularly regarding sexuality, marriage, and divorce practices. Indeed, archival evidence from Chuxiong Prefecture in Yunnan does point to several distinctive features that contributed to divorce there, and perhaps to the court visit of the five Yi women. [Archival] cases suggest that divorce among the Yi was directly related to several aspects of their culture: drinking practices, a rather fluid marital situation in the early years, the support they received from their natal homes, and their mobility through rural space. Perhaps this is why Han officials believed that the Yi loved suing for divorce. My argument, however, is that such cultural features were not sufficient to cause the spike in divorce rates in the early 1950s; these same features, after all, were present prior to 1949, and yet divorce was rare in Yunnan. A more plausible explanation is that the Communists, by providing a counterweight to local power (usually in district governments) and by proactively engaging the rural family in politics, provided the opportunity for these Yi cultural traits to become legally and politically salient. My argument about the crucial role of rural politics (with culture playing a facilitating role) in producing social change would be greatly strengthened if I were able to show that (1) in Han rural areas similar dynamics occurred; and (2) that divorce in China was less likely to occur in urban areas. On both of these accounts the evidence is unambiguous. Contrary to the view of many Han Chinese who think that ethnic minorities in Yunnan are more “open” about sexuality, marriage, and divorce than themselves, it turns out that many of the cultural traits that contributed to divorce in Yunnan made their appearance in other, less-ethnic, provinces as well. Such willingness to use law in “conservative” areas of rural North China stands in marked contrast to the behavior of the most “modern” segment of Chinese society-educated and well-off urban elites. Many of these elites did not experience the

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Revolution as “emancipation” but as repression, since the Communists were a ruralbased party that suspected urban denizens of political disloyalty. Even though the winds of the Marriage Law eventually died down after the early 1950s, there is little evidence that the CCP allowed urban residents more freedom. In fact, statistics from one major city—Tianjin—reveal that the overall number of people getting divorced declined year by year until 1966, whereas in many rural areas there were as many divorces in the early 1960s as during the height of the Marriage Law campaign in 1953.

Conclusion This use of the courts would not have happened without the rural-to-urban dynamic of the Chinese Revolution. The Revolution, by decimating the pre-1949 political structure, encouraging the young (particularly women) to empower themselves visà-vis their elders, and causing local officials to think twice about infringing on new rights, dramatically changed the opportunity structure for divorce. But while the rural nature of the Chinese Revolution was critically important in changing family relations in rural China, it was not enough. To explain the puzzle I presented at the outset, I have also invoked the dual notions of both a feisty legal culture and a support structure. Whereas the stereotypical depiction of Asians is of passivity vis-à-vis legal institutions and a cultural preference for mediation . . . peasants in Yunnan Province and other areas of rural China could be quite aggressive when pursuing their interests, even in lawsuits. This feistiness certainly contributed to their willingness and ability to take advantage of the Marriage Law. These women were certainly not modern in the sense of believing in equality or having a clear consciousness of their rights, but this did not stop them from taking advantage of a highly modernist law. In fact, it might be argued that it was their organized inequality, their participation in gender-segregated activities that promoted trust and solidarity, facilitating the organization of collective action for divorce.


Framing the Choice between Cash and the Courthouse Experiences with the 9/11 Victim Compensation Fund Gillian K. Hadfield

Most lawyers and judges thought it would be an easy choice. When the 9/11 victims and those who lost family members in the attacks were offered an alternative to complex, uncertain, multi-year litigation—fast, guaranteed payment from the September 11 Victim Compensation Fund (VCF) comparable to what they might receive if they won in court—most expected them to accept the offer in droves. And while accept they did—fewer than 100 lawsuits were ultimately filed, while the VCF paid out some 5,500 claims with an average of $1.2 million each ($2 million for the people who lost a family member, $300,000 for the injured)—lawyers and judges were puzzled by one thing: nearly half the claims were filed in the last month of the two years the Fund was open for claims. Why did the families and victims delay so long in making what seemed like such a clear choice between cash and a trip to the courthouse? As Ken Feinberg, who served as Special Master for the VCF, put it: “[w]hy would a spouse, mother, father, or child choose not to complete an application form that would bring them a tax-free $2 million?” (2005: 158) Feinberg’s interpretation of the perplexing delay speaks to an equation of litigation interests with monetary interests that is increasingly common in the legal profession. Feinberg explains the delay in terms of factors that might interfere with the rational calculus of settlement amounts: people were still traumatized by their loss; some were stalling in the hope that they would receive a higher amount, or at least a predetermined amount, before waiving their right to pursue a lawsuit. Similarly, most legal academic studies of the VCF evidence the focus on monetary interests found throughout the legal profession. The existing legal professional and academic analysis of the VCF thus presumes the answer to a question that law and society scholars have long seen as central and problematic: how do people (other than lawyers and legal scholars) frame a “legal” problem and the decision about whether to take legal action in response to the troubles they encounter? [E]mpirical scholars have looked at when and how people translate the difficulties they encounter in their everyday lives into legal categories

Abridged from Law & Society Review 42, no. 3 (2008): 645–82.


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and contacts. Felstiner and colleagues (1980–81) emphasize the process by which individuals transform their problems into legally cognizable disputes: first recognizing a problem as an injury (“naming”), then as a grievance with a person or entity seen as responsible for the injury (“blaming”), and ultimately articulating the grievance and seeking a remedy (“claiming”). Building on the recognition that this process is socially mediated not only by material factors but also by how law is understood and experienced, the legal consciousness literature explores how people understand the function and meaning of law and in particular the significance of transforming a private dispute into one that calls upon the public institutions of law such as courts, police, and lawyers. Against the backdrop of this literature, it is clearly inadequate to simply assume that the decision those injured or bereaved by the September 11 attacks had to make between accepting a cash payment from the VCF and entering the legal system by filing a lawsuit was a simple monetary calculation. Did [the VCF potential claimants], like legal analysts and most lawyers, see the choice facing them as a question of comparing values, payout times, and probabilities, choosing between a sure thing and a lottery ticket? If not, how did they frame the choice between a payout from the Fund and going to court? Unlike most studies in the legal consciousness or dispute processing literature, this study did not focus on the everyday interpersonal difficulties that ordinary people encounter and ask what prompted them to decide that a “personal” problem . . . should be transformed into an issue demanding the attention of public officials. The issue these potential plaintiffs . . . pointedly faced was whether to resist the public characterization of their legal interests as private and monetary and to enter the public legal realm despite being strongly discouraged by public officials to do so. The transformation challenge these litigants faced may be better characterized not as naming, blaming, and claiming but rather as naming, blaming, and framing. Most strikingly, respondents in this study framed a decision to litigate not in terms of the pursuit of private ends within or against an external legal order but rather in terms of citizenship and community. Like Merry and Silbey (1984), I find that litigation represents more to some potential litigants than a means to satisfying private material ends; it represents principled participation in a process that is constitutive of a community.

The Victim Compensation Fund On September 21, 2001, Congress debated and passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The ATSSSA took several steps to address the financial risks facing the airlines, including limiting the liability of air carriers for all claims arising from the attacks to the limits of the insurance maintained by the air carrier ($1.5 billion per plane.) Ultimately, the rationale behind the act clearly went beyond protection for the airlines. Amendments in November 2001 extended the



limitation of liability to those engaged in airline security, aircraft and aircraft parts manufacturers, airport owners and operators, anyone with a property interest in the World Trade Center, and New York City. The limitations on liability in the ATSSSA created the potential that in the event entities were judged to have been negligent and to have contributed to the losses experienced by individuals, corporations, and property owners on September 11, there would not be sufficient funds available to pay all compensatory damages awarded by the courts. Ostensibly to address this, Congress created the VCF as a source of compensation for those physically injured by, or who lost family members in, the attacks. But it conditioned that compensation on a waiver of all rights to bring any claims for damages—against anyone, not merely those entities for which liability had been limited. Special Master Feinberg established several procedures for streamlining and simplifying the process of determining awards, which, under the ATSSSA, were to be determined based on the “individual circumstances of the claimant.” Feinberg developed a grid of presumed economic loss for decedents based on lost earnings or economic opportunities, age, number of dependents, and marital status. He also established a rule that noneconomic losses would be presumed to be $250,000 plus $100,000 per spouse and each dependent. No presumptions were made about losses suffered by those filing claims for physical injuries. Ultimately, 97 percent of those eligible to file a claim on behalf of those killed in the attacks did so, a total of 2,880 claims. Another 2,680 people filed claims for injuries sustained in the attacks. Total entitlement was calculated at $8.5 billion for death claims and $1.5 billion for injury claims; offsets (required by the act) for insurance payments reduced the total amount distributed by the VCF to $6.0 billion and $1 billion, respectively. Total administrative costs for the Fund were $87 million.

Data Collection and Sample Characteristics This study began with a simple question: how did people who had suffered an injury or lost a family member think about the choice between collecting money from the VCF and pursuing civil litigation? I investigated this question in three ways. First, I conducted open-ended interviews in early 2004 with four individuals who had been publicly involved in efforts to reform the VCF or shape the public response to 9/11. Second, I constructed an online survey that consisted of both closed- and openended items. Respondents were recruited via an e-mail. Respondents were . . . given an option to provide me with an e-mail address or phone number if they were willing to be contacted for a follow-up interview. These follow-up interviews, conducted in May and June 2006, constituted my third source of data. [T]here were a total of 155 useable survey responses. [I]nterviews were arranged and completed with 30. [T]he sample appears to be reasonably representative.

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Choosing between the Fund and the Courts: Experiences of VCF Claimants Blaming Seen through the lens of the naming-blaming-claiming framework, it seems clear that those injured or bereaved on September 11, 2001, had no difficulty recognizing (naming) their losses. It was far more complex to determine whom could they blame. To many, it makes no sense to extend blame for the devastation wrought by September 11 beyond the terrorists who financed and piloted the planes that slammed into the World Trade Center, the Pentagon, and a field in Pennsylvania. Some survey respondents did indeed share the view . . . that the terrorists, and the terrorists alone, bore responsibility for the attacks, making litigation an illegitimate blame-shifting exercise. But while the view that the terrorists alone were responsible for the attacks was evident in the sample, it was a minority view. The majority of respondents allocated significant responsibility to people and entities other than the terrorists. [M]ost strikingly, the average share of responsibility allocated to the terrorists [by survey respondents] is barely greater than a third. Fifty percent of respondents assigned 30 points or less to the terrorists; only 25 percent felt the terrorists bore more than half of the responsibility for the attacks, that is, more than U.S. entities and officials. For those [victims] at the point of impact, all that could have gone differently was for the attacks, which affected everyone in the country, not to occur in the first place. But for those who survived the impact, many things might have gone differently. These individual stories imply, understandably, different beliefs among those who suffered losses about who bears responsibility for the deaths and injuries on 9/11.

Framing The 9/11 victims and families were presented, only weeks after the attacks, with a prepackaged legal context for their losses: the creation of the VCF and an overt framing of a litigation option as an essentially financial matter for which a check could substitute. Ken Feinberg, the lead spokesperson in this regard, essentially took it as his mission to persuade as many people facing this decision as possible that what was at stake was a financial calculation, weighing a certain payment today against a gamble on a later “pot of gold.” In light of this overt public framing of respondents’ losses as a legal matter for which money was a good, and appropriate, substitute, how did they in fact understand the meaning of transforming blame into legal action?

Choosing Law, Forgoing Money Perhaps largely in response to the dogged and sincere efforts of Special Master Feinberg, only 100 of the thousands of potential plaintiffs ultimately filed a lawsuit rather



than entering the VCF. My sample included 10 of these plaintiffs, too small a number to analyze statistically. These respondents, however, were highly articulate about the role money played in how they understood what it meant to see their claim as one that warranted legal action. The survey asked these respondents to allocate 100 points across a set of potential factors in their decision to litigate; none put any weight on the potential for obtaining a higher payout from the court than from the Fund. The factors these respondents did identify as contributing to their decision included: “I felt taking money from the Fund for my loss was wrong,” “I wanted to punish those who caused or contributed to my loss,” “I felt it was my duty to pursue those responsible for my loss in court,” “I wanted a trial to find out more about what happened and whether people had failed to do their job to keep us safe,” and “I wanted to help change things to prevent this from happening again.” In open-ended survey responses, litigating respondents framed the money from the Fund as “hush money.” People were being paid off not to go to court. How would I feel taking taxpayers’ money in order for me not to be able to ask questions, hold people accountable? The purpose of the VCF was to protect the companies involved. It was corrupt and dishonest from its inception. This is not an appropriate use of tax dollars.

What did they believe litigation offered? Three themes were clear. First, litigants wanted information. Second, they wanted accountability and authoritative public judgments about wrongdoing. And third, they wanted to do something to promote change.

Choosing Cash, Forgoing the Courthouse The nonmonetary considerations  .  .  . were also plainly evident in how many who chose the Fund over a lawsuit framed their decision. Indeed, what distinguishes the litigants from those who chose to go with the Fund in this sample may be not a fundamental difference in how litigation was framed, but rather in the capacity or willingness to take on the “hard, risky” path of what all anticipated would be a long, emotionally painful, and potentially deeply dissatisfying process. Fifty-seven percent of respondents who explained their decision to go into the Fund indicated that the decision was “somewhat” or “very” hard. Some were in fact heartbroken and ashamed by their decision not to litigate. Ten percent of respondents (14) answered yes in response to a survey item that asked if they now regretted their decision to go with the Fund and wished they had filed a claim in court instead. [T]hose who found the decision difficult did so because of both monetary and nonmonetary considerations, but . . . nonmonetary considerations dominated. Even including those who did not find the choice difficult, however, it is clear that monetary considerations were not dominant in how respondents who filed with the Fund

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ultimately chose. Less than one-quarter (22 percent) placed any weight at all on the idea that the amount of money offered by the Fund was higher than what might be obtained in court. For many, litigation—however desirable in theory to achieve principled goals— was perceived as unlikely to achieve these goals in practice. I felt that litigation would go on for so many years, we would not get any answers. Litigation would absolutely have created incentives to take better security steps. They would buy their way out of this mess. [But] the VCF law gave blanket immunity to those who were really responsible.

Information, Accountability, and Responsive Change: Framing Civil Litigation as Citizenship Whether forced to the decision by financial necessity, the need for emotional closure, or a perception (reinforced by the legal community) that litigation would be futile, many respondents framed the decision to file [a claim with the VCF] as one requiring the abandonment of important values. Like those who had the “luxury” of pursuing litigation, these respondents saw litigation as a means by which they could gain information, seek accountability, and prompt responsive change: I didn’t like the idea [of choosing the Fund]. It’s not about being compensated, or getting people back who died. It’s that nothing gets fixed, no changes are made. In the aftermath of Pearl Harbor, you had a government that sought to lay blame for the tragedy. The feeling was “punishment is the order of the day.” That didn’t happen with 9/11. No one was fired, no one was blamed for the security lapses. That was wrong.

[T]heir framing of the decision to litigate or not speaks, I believe, to beliefs about fundamental ways in which civil litigation, at least in its ideal form, is seen to serve important functions beyond monetary compensation. Moreover, the framing articulated by these respondents was significantly political in nature. Respondents did not (only) seek information, accountability, and responsive change to serve their personal interests; they clearly articulated these values as shared, public, civic values. Many, for example, clearly spoke as a member of the broader community, in terms of the American public as a whole, in expressing what “we” did not know about the attacks, how “we” failed, and what “we” must do in response. Many emphasized that the information and accountability functions of litigation had to occur in a public forum. Some spoke specifically of pursuing litigation in terms of an obligation to their fellow citizens and the country. Some appealed directly to the Constitution and their understanding, explicitly, of the role of litigation in American democracy.



It thus seems clear that for many, litigation represented not merely a means of obtaining monetary compensation but also—more important—a means of acting as a responsible citizen. To see in the search for disclosures about “what happened,” public judgments of accountability, and responsive change only a search for psychological release or personal satisfaction misreads, I believe, the integrity of the public-spirited thinking about litigation in which many of these respondents engaged.

Conclusion [L]arge-scale institutions play a role in providing an overtly civic and structured framework in which individuals participate in the political process and exercise citizenship. It is not hard to read in the responses from those who struggled with the decision about whether to take a check in exchange for relinquishing their right to litigate in response to the enormity of the losses suffered on September 11—by them and by the country as a whole—a keen sense of the courts as just such an institution. The experiences of these 9/11 respondents throws into sharp relief a fundamental rift between the dominant way in which legal actors frame the goals of litigation and the way those who find themselves in a position of pursuing potential litigation in response to loss see the institution. Several respondents spoke specifically of the—to them surprising—divergence between what they saw as principled goals and what the lawyers and judges with whom they dealt saw as purely monetary concerns. Many legal commentators, while acknowledging nonmonetary goals, discount them as unrealistic. Shapo suggests that while “the process of unearthing information [in litigation] in itself could have symbolic importance” and “the exercise alone might be psychologically satisfying,” he agrees that the goal of “finding out what really happened” is not likely to be realized (2005: 231). Genn observes regretfully that financial compensation is “the only remedy that the legal system can deliver as a result of a negligence action” (1999: 11). It is clear, however, both from the values many respondents felt they had to forego in order to accept money from the VCF and from the explicit support (50 percent in this sample) for a purely declaratory lawsuit, that much of what litigation is perceived to accomplish is gained through the process of litigating and judgment itself: discovery of information and public assessments of accountability. While litigation is almost certain not to live up to any ideal process respondents might have had in mind—lots of information may never be forthcoming, for example—one does not have to look beyond even the extraordinary circumstances of terrorist attacks to find evidence of what civil litigation can accomplish. The tort litigation that has gone forward in the September 11 case, hearing the claims of numerous corporations that suffered business interruption and property losses, and the 100 personal injury and wrongful death plaintiffs who chose not to enter the VCF . . . , has thus far resulted in an authoritative judgment about whether airlines and airline security firms owe duties of care to potential victims on the ground and whether the World Trade Center owner/operator owed duties to occupants of the buildings to take steps to prevent

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even those injuries caused by the deliberate crashing of hijacked airlines into buildings (answer: yes [In re September 11 Litigation 2003]). The focus in the legal profession and academic analysis on the monetary aspects of litigation is, of course, well founded. Indeed, the disillusionment with courts and litigation that pervades the legal profession and judiciary is at least in part in response to the explosive growth in the costs of litigation. However, most of our efforts to address the crisis entail efforts to divert matters out of litigation, rather than to find ways to achieve the goals of litigation in a more cost-effective way. Interestingly, the VCF itself is evidence of the willingness in the legal profession to streamline procedures and even entitlements in order to achieve the monetary goals of litigation in a more cost-effective way: limiting liability, granting extraordinary discretion to a single decision maker, using grids, and imposing time limits on hearings and claim determination. But we have yet in our legal reform efforts to put similar efforts into streamlining procedures and entitlements in order to achieve the nonmonetary, indeed democratic and political, goals of litigation: limiting discovery, imposing time limits, constraining the use of experts, and so on. [T]he thoughtful and publicminded framing of these values by the 9/11 respondents in this study speaks to the cost of focusing only on how to get matters out of litigation and not how to afford access to the civic processes of litigation.


Justice Excused The Deployment of Law in Everyday Political Encounters G e o rg e I . L ov e l l

In June 1939, Layle Lane wrote to U.S. Attorney General Frank Murphy to ask the Justice Department to investigate the case of Elijah Harris. According to Lane, Harris was being held in a prison camp in Everglades, Florida, after allegedly being involved in a car accident in which a white child had died. Lane reported that Harris had not received a fair trial, that he already had paid fines that were supposed to result in his freedom, and that he was receiving brutal treatment. Lane also suggested that Florida was operating a forced labor camp and extorting money from the families of prisoners. Lane’s letter was processed by the Justice Department’s small Civil Liberties Unit, which the attorney general had created just a few months earlier. The unit, which was later renamed the Civil Rights Section (CRS), sent Lane a reply letter stating that the federal government had no legal authority to intervene. The reply explained, It seems that Mr. Elijah Harris is not under the jurisdiction of the federal government, but rather under the jurisdiction of the state of Florida. Therefore, any rights guaranteed the accused in that state should be sought under the constitution and laws thereof.

The reply closed by suggesting that Harris seek help from private counsel. The CRS’s reluctance to become involved in the case is not surprising. The unit’s staff was small, had limited resources, and worried that aggressive federal intervention in local law enforcement would create a political backlash that would leave the unit with even fewer resources. Nevertheless, the department’s use of a legal claim about federal jurisdiction in its letter is surprising. If Lane’s description of Harris’s case was accurate, the case did not fall under the exclusive jurisdiction of Florida. The Fourteenth Amendment gives the federal government power to intervene when state officials deprive someone of liberty without due process of law. The department’s legalistic reply to Lane was not unique. This article is based on an analysis of 580 letters reporting civil rights violations that were processed by the CRS between 1939 and 1941. I find that the department immediately rejected more than 98% of the complaints as unworthy of any federal attention. Almost all the Abridged from Law & Society Review 40, no. 2 (2006): 283–324.



G e o rg e I . L ov e l l

people who wrote letters received nothing in response but a short letter stating that limits on federal jurisdiction made it impossible for the federal government to help. Such letters and replies provide an opportunity to analyze the way government officials deploy legal claims in routine political encounters, and to explore some of the ways people who participate in political processes react to such claims. Interestingly, some letter writers challenged CRS legal claims by insisting that CRS officials were exercising discretion rather than being buffeted by unchangeable legal commands. Lane again provides an example. Lane did not capitulate after government officials rebuffed her initial petition by invoking law. She instead wrote back to challenge the department’s claims. Lane’s second letter articulated an alternative understanding of the federalism principles that the CRS officials had invoked: While I know that most crimes are considered offenses against the state and subjected to state laws still the laws of the state are not to deprive any person of the rights granted him under the Constitution. [T]he 5th and 14th amendments specify that no person shall be deprived of life, liberty, or property without due process of the law. This is the case of Elijah Harris of Hilton Georgia who is deprived of liberty and property in Everglade Prison.

I show below that Lane is just one of the many people who used legal and constitutional discourse as a rhetorical weapon, to both challenge the government’s legal position and articulate broad aspirations for novel rights and for a more responsive and inclusive democracy. [T]he article analyzes the deployment of legal rhetoric in these encounters because doing so yields important insights into the participants’ underlying ideas about law, democratic politics, and rights protection. The article is . . . not occupied with criticizing the CRS for failing to help more letter writers. The CRS’s failure to help may in some of these cases seem disappointing when judged against today’s expectations about government responsibilities for protecting rights. However, . . . the CRS was operating at a time when a variety of legal, political, and practical barriers made it impossible to pursue many cases. Those constraints make the CRS’s failure to provide help to more letter writers understandable. The idiosyncratic features of the cases that interested the CRS make it difficult to present a simple formula that explains CRS decisions about which cases to pursue. However, such an explanation is not the goal of this article. I focus instead on the strategies that the CRS officials used to communicate with the people whose complaints were rejected. The CRS’s reply letters never explained the practical constraints that made it impossible to help many of the people who wrote with legitimate complaints. The CRS instead made broad and categorical legal claims that hid the sources and complexity of legal constraints while ignoring equally important barriers that resulted from a lack of resources. The CRS’s legal claims portrayed outcomes that were the result of discretionary policy choices as mechanical choices dictated by external legal standards over which the CRS had no control. So long as transparency has inherent value in democratic political systems, scholars should be concerned about tactics that mask the discretionary choices of government officials.



Data and Context The letters and replies examined for this article are among those that have been preserved under a civil rights file classification in the general correspondence files of the Justice Department at the National Archives. Most were written by individuals who did not claim to have an institutional or organizational affiliation and who exhibited no sign of legal training. Almost all the writers who addressed personal status issues claimed to be of modest means. This article does not try to summarize the content of the letters and does not attempt a comprehensive analysis connecting that content to a broader historical context. Rather, the article focuses more modestly on analyzing how CRS officials and letter writers deployed legal rhetoric and uses that analysis to address general rather than historical questions about how law infiltrates everyday political encounters. [L]etters allow direct observation of actual encounters with government officials, while interviews typically document only the narrative stories that people tell about such interactions. Moreover, interviews can be influenced by subjects’ anxieties or expectations regarding the interviewing process. In contrast, letter writers have considerably more control over how they present themselves. A final advantage of letters is that they provide access to the past. The CRS letters are from a period that scholars have long identified as a crucial transitional stage in elite attitudes toward civil rights. Legal Context The two most striking features of the legal context in which the early CRS made its claims about jurisdiction are (1) there was almost no federal civil rights law, and (2) government officials faced tremendous uncertainty about the meaning and potential reach of the few civil rights laws that did exist, largely because many crucial legal and constitutional questions about federal jurisdiction were quite unsettled. Faced with uncertainty about the precise meaning of those statutes in a post–New Deal world, the CRS developed a litigation campaign. The strategy was to use test prosecutions involving particularly egregious rights violations to obtain court rulings broadening federal jurisdiction over civil rights. During the years covered in this article, CRS officials had not obtained definitive court rulings on the reach of existing statutes, and thus in many cases had no way of knowing for certain whether judges would recognize particular incidents as falling under federal jurisdiction. [T]he CRS’s stark legal claims made it seem as though limits on federal jurisdiction were the result of permanent and unchangeable legal barriers. There was no hint that the biggest obstacle to more effective federal protection was Congress’s unwillingness to exercise its broad, constitutionally granted powers, and no hint that the CRS attorneys were selecting some violations as test cases because they expected judges to allow federal jurisdiction to expand. By obscuring the malleability and contestability of legal limits on federal jurisdiction, the categorical claims in the reply letters masked the political and policy choices that the CRS was making as it developed its program for improving federal civil rights protections.


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Political and Institutional Context The CRS’s exclusive emphasis on legal obstacles kept a variety of contingent and more politically charged obstacles hidden from letter writers. The biggest practical obstacle was that CRS never had the resources to pursue a large number of cases. The CRS was a small unit subsumed within the criminal division of the Justice Department. Between 1939 and 1947, the CRS typically had about seven attorneys on staff, all of whom worked in Washington, D.C. The CRS thus had to rely on local U.S. attorneys and FBI agents to conduct any investigations. Many of those community-based officials had personal ties and close working relationships with local elected officials and law enforcement officers and were thus reluctant to cooperate in civil rights cases. The president and attorney general could have directed more resources toward civil rights protection or attempted a more aggressive litigation strategy. (The CRS was itself established by the attorney general without any congressional authorization). The failure to take such steps reflects the Roosevelt administration’s deep ambivalence regarding civil rights and civil liberties. By the late 1930s, both the looming war and the increasing importance of African American swing voters in northern states created pressure to address race-related civil rights problems. Nevertheless, Roosevelt remained dependent on the southern wing of his party, a wing comprising white supremacists whose power depended upon the continued disenfranchisement of most African Americans in the South. The resulting cross-pressures meant that the Roosevelt administration would occasionally take symbolic steps to protect civil rights and occasionally pursue egregious abuses. However, the pressures also meant that the administration was unwilling to shift resources to the CRS or, more generally, to mount a more ambitious but potentially disruptive program for protecting rights.

Deploying Law to Mask Discretion: The Politics of CRS Legal Claims The CRS’s claims about jurisdiction made it seem as though the department’s response was dictated by fixed legal standards that were beyond the control of the department while hiding the discretionary choices that made it difficult for the CRS to help more people. The department’s curt replies also suggested that limitations on federal jurisdiction were permanent and thus not proper topics for political contention. The government’s use of legal claims would not be as striking if such claims had not been made with numbing regularity. It might be assumed, for example, that the department made legal claims because civil rights complaints are always, at some level, requests for relief through legal processes. However, the CRS made legalistic claims about jurisdiction even when writers did not mention rights, invoke law, or ask for help. Almost all of the reply letters followed the same boilerplate structure. The replies began with a short paragraph acknowledging the letter and attempting to restate the subject of the complaint. The replies then asserted that the department could not help because the matter fell outside the department’s statutory or constitutional



jurisdiction. Some of the replies also suggested other places the writer might seek help, most often from a private attorney (11%, 66/580). A smaller proportion of replies suggest that the writer should approach the local U.S. attorney if they could document their cases (8%, 46/580). A typical example of the CRS strategy is a reply sent to Pearl Squires Olsen, who wrote from Manistique, Michigan, to complain about corruption on a local school board. The CRS noted, From the information contained in your letter, there is nothing that would indicate that the matters complained of are not purely local. In these circumstances, the Department of Justice would have no jurisdiction to intervene.

CRS reply letters also failed to provide citizens with the information they needed to understand the limits on federal jurisdiction. Replies stating categorically that there was “nothing” that the department could do under “these circumstances” provided little help to writers who wanted to understand what alternative circumstances might allow the government to help. In many cases, it might have been possible for betterinformed writers to reframe complaints to establish a basis for federal intervention. Government agencies must routinely make the difficult choice to ignore legitimate reports of wrongdoing, not because they lack legal power to help but because they do not have sufficient resources to respond to every allegation or problem. There is thus nothing suspect about the CRS exercising discretion and choosing not to pursue all legal remedies for every complaint. However, my concern here, as noted above, is not that the CRS made indefensible choices when it refused to provide help, but with the strategies the CRS used to communicate its choices. Those strategies often obscured the fact that choices were even being made. Before shifting to an examination of letter writers’ responses to the CRS’s legal claims, two concluding observations about the CRS’s use of such claims are in order. First, legalistic responses such as the ones sent to Rogers and Hampton create a particularly narrow picture of the politics of rights protection. The replies suggest that the capacity of the federal government to protect rights was bounded by fixed legal and constitutional limits on federal jurisdiction. They thus imply that any broader or aspirational claims expressed in complaint letters fell outside the legitimate range of political disagreement while hiding the fact that limitations on federal power were largely the result of contingent and reversible policy choices made by the president and Congress. Second, the department’s routine deployment of opaque legal claims is particularly troubling because many of the people who wrote letters were potential allies in the CRS’s broader goal of improving federal rights protections. Routine efforts to depoliticize conflicts could be viewed more sympathetically if the legal claims were directed at political opponents of the president or the CRS. Such claims might be regarded as fairly innocent efforts to be courteous. Ironically, however, the CRS was using legal claims when responding to people who seemed to share the CRS’s ultimate goal of improving federal rights protections. By writing reply letters that left the CRS’s goals and strategies hidden, the department was missing opportunities to build grassroots


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support for its creative effort to expand federal jurisdiction and improve rights protections. Instead of providing writers with useful information about how the relevant legal and political obstacles might be overcome, the replies seem designed to make it more likely that changes would be shaped by the cautious choices of the elite legal professionals at the CRS with little participation or scrutiny from the general public.

Deploying Law as a Weapon of Contention Government officials were not the only participants in these encounters who deployed legal rhetoric. Letter writers also made claims about law and the Constitution, and they used such claims to justify their demands, to challenge legal claims made by government officials, and to express broader aspirations and democratic visions. The cases where it is easiest to see the capacity of ordinary people to engage and challenge official legal claims are those where people wrote back to the CRS. While only 12.4% (72/580) of the people wrote back, almost all of those who did challenged legal claims made by the CRS. The responses of these writers provide the clearest evidence that not everyone is intimidated when government mandarins make abstract and absolute legal pronouncements to justify contentious decisions. [T]ypically, writers eschewed vivid descriptions of personal reactions and instead challenged the CRS by making legal claims that undermined the department’s expressed view of its responsibilities. For example, after being told to take his complaint about a local school board to state officials, S. J. Murphy of Richmond County, Georgia, wrote again to invoke the Supremacy Clause of Article VI: I respectfully contend and insist that the Richmond County Ga. school board has violated first amendment of the federal constitution by abridging freedom of speech and press. Said constitution being the supreme law of the land according to article six. If a body of people violate an article of constitutional law I fail to see where the state has jurisdiction.

The overall record shows . . . that writers did not need to master specifics to communicate effectively. Consider for example, Henry Kost of Miami, Florida. Kost wrote directly to President Roosevelt to complain that a local licensing ordinance was interfering with his right to paint signs for a living. After the Justice Department told Kost that the matter fell under the jurisdiction of the state of Florida, Kost wrote back to the CRS and challenged the government lawyers’ ideas about constitutional law. Kost wrote: The Constitution of the United States gives me the right to pursue happiness, and cartoon drawing is my happiness. The State of Florida made a law that violates the constitution and I want an apology + damages via money for violating my rights + want the law cancelled.



While the right to “pursue happiness” is mentioned in the Declaration of Independence rather than the Constitution, Kost’s technical error does not obscure his central point. [L]etter writers presented challenges to the department’s technical legal claims that were less direct but more foundational. They did so by articulating alternative visions of justice or morality and suggesting that the department’s legal claims were incompatible with those visions. Many writers in this category distinguished their visions of justice from what they saw as the pretensions of justice embedded in official legal claims. One reason such efforts are interesting is that they show that writers could consciously draw on alternative normative resources outside the law to challenge claims of justice embedded in official law. Many of the writers who offered alternative visions did so in their initial letter to the CRS, not in a response to a CRS reply letter. Some writers anticipated that government officials would be unwilling to help, and also that the government’s expressed justification for refusing to help would be some legal claim. Many of these writers did not know precisely what legal claims the government would make, but they were still able to mount coherent, anticipatory challenges to government legal claims. Many  .  .  . letter writers buttressed their complaints by making claims about rights or justice that the writers themselves recognized as falling outside official law. Another strategy that many letter writers used to establish the importance of a complaint was to compare the United States with Nazi Germany. Even though they were written before the United States became directly involved in the war, 13% (77/580) of the letters in my sample made some reference to the war in Europe. Interestingly, some of the most defiant letters invoking the looming war came from African Americans who challenged the Roosevelt administration’s commitment to protecting rights and liberty abroad. One powerful example is a letter sent to President Roosevelt in 1940 by Reverend J. T. Cooper of Roper, North Carolina. Cooper complained that a group of African American leaders had recently been denied the right to register to vote. Cooper asked, Since this country declares that the Constitution was made by the people, for the people and of the people and that it stands to and do protect the rights and liberties of all the people a life regardless of race or color and if this be true, kindly state to me why me and my race here in this part of the country are debared from registering and voting.

Cooper’s invocation of a phrase from the Gettysburg Address, together with his rhetorical questions, made a powerful case. His complaint eventually turned into a warning: [t]his country will soon need the help of all the people that is here in it and some more, to help protect this so called Land, and I am asking you to please see to it that if me and my race are debarred from any of rights and privileges, we shall also be debarred from


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the rights to shoulder the arms and march to the Battlefront and give our lives to protect something that we don’t get any benefit out of.

Cooper anticipated and employed the argument connecting the war in Europe to domestic race relations that would soon become an important reason for administration support for civil rights advances. In these instances, efforts by letter writers to articulate higher moral arguments changed the meaning and significance of their letters. Many scholars have criticized rights rhetoric for allegedly creating isolation, deference, or feelings of victimization or dependency. The letters . . . reveal, however, that ordinary people could invoke the language of rights to give greater rhetorical power to aspirational demands for collective empowerment.

Conclusion: Rethinking Law, Politics, and Contention The findings presented here suggest that paying attention to the way both citizens and nonjudicial government officials deploy legal claims can lead to a more robust account of the impact of legal ideology on political practices, the effect of legal pronouncements on ordinary legal consciousness, and the complexity of ordinary people’s reactions to official law. While the people who wrote letters to the CRS are not a perfect sample of ordinary people (whatever that may mean), their moving efforts to articulate their concerns reveal that there is considerable variation, complexity, and sophistication in the way people respond when government officials deploy legal claims to explain contentious decisions. The fact that the letters were written before the celebrated rights-orientated litigation campaigns of the 1950s–1970s, and during a period when official law provided so few opportunities for redress of rights violations, makes the writers’ willingness to subvert official expressions of law even more surprising and moving. The CRS letters show that scholars cannot fully understand how government officials use legal claims as ideological weapons unless they look beyond judges to other, more overtly political actors in other branches. What is particularly interesting in this sample is the way many writers employed law’s own pretensions of legitimacy as a weapon against officials who were responsible for enforcing the law. Writers  .  .  . revealed that they did not naïvely buy into some idealized vision of the rule of law that portrayed government officials as always constrained by formal legal rules. By writing back to question CRS legal claims  .  .  . [and] by self-consciously articulating normative visions outside of the law, writers could remind government officials that they too possessed the capacity to recognize, construct, and even act upon alternative visions of justice. Such findings challenge earlier accounts that have focused narrowly on the production of legal ideology by judges without considering law’s role in everyday encounters between individual citizens and government officials. The frequency with which writers expressed broad and aspirational rights claims also reveals that earlier



empirical accounts of the evolution of rights claiming may underestimate the fluidity and inventiveness of popular rights claiming. Ultimately, the willingness of many people to challenge the CRS’s legal claims reveals that the problem for the people writing to the CRS was not law’s legitimating rituals or ideological messages of neutrality and permanence. The problem was that political institutions were at that time unresponsive to novel demands for rights and institutionally incapable of making meaningful responses to many egregious violations of core rights. [E]xcessive focus on the way legal officials deploy law to communicate ideological messages can lead scholars to exaggerate law’s capacity to shape popular consciousness. By paying more attention to the way people respond to a broad range of official legal claims, scholars can develop more accurate accounts of the interactive processes through which legal meanings are asserted and contested.

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Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers Tom R. T yler and Robert J. B oeckmann

The desire to punish those who break social rules is a widespread, if not universal, feature of human societies. Social psychologists, sociologists, and other law and society scholars have a long-standing interest in understanding why people want to punish rule breakers, that is, in understanding the social meaning of rule-breaking behavior. This study explores why people want to punish rule breakers. It addresses two issues: (1) the sources of support for the punishment of rule-breaking behavior and (2) the nature of public support for punishing those who break social rules. Three basic sources of support are compared: crime-related concerns, concerns about social conditions, and social values. Two views about the nature of public support are considered: the instrumental judgment that the world is dangerous and the relational judgment that the world lacks social cohesion. These issues are addressed in the context of support for a recent public initiative in California: the “three strikes” initiative. That initiative mandates life in prison for anyone convicted of three felonies. In addition to support for that initiative, support for two other aspects of reactions to rule breaking is also examined: (1) other punitive public policies toward rule breakers; (2) willingness to abandon procedural protections when dealing with possible rule breakers.

Background of the Initiative The three strikes initiative was overwhelmingly passed by the citizens of California during the 1994 election. It mandates a life sentence for any person convicted of three felonies. While dramatic in its nature, the three strikes initiative is not an isolated or idiosyncratic public response to the issue of rule breaking. Surveys of the general public make clear that there is both strong and steadily increasing public support for the severe punishment of criminal defendants. From the perspective of the public sentiments  .  .  . the three strikes initiative is well designed to capture the prevailing public mood about rule breaking. First, the Abridged from Law & Society Review 31, no. 2 (1997): 237–66.



Tom R. T yler and Robert J. B oeckmann

initiative is punitive. The punishments enacted significantly increased the length of time career criminals will spend in prison. Second, the initiative is anti-authority. It is consistent with general cynicism and lack of confidence in legal authorities because it limits the discretionary power of judges. Instead of judges determining sentence length, sentence length is automatically determined by the law. Hence, the three strikes initiative was an ideal initiative to capture prevailing public alienation and dissatisfaction. But what is the source and nature of that public feeling? The purpose of this study is to address that underlying question.

Theories of Public Punitiveness There are two basic theoretical frameworks within which responses to rule breaking have been viewed. The first is instrumental and argues that people are primarily focused on deterrence or behavior control. This model suggests that the source of public concern lies in judgments about the severity of the crime problem and the ineffectiveness of the courts. The suggestion is that people are motivated to protect themselves and their communities from tangible threats and thus respond to personal fears when judging those who break rules. The instrumental model links concerns about rule breaking to judgments about crime and dangerousness. It suggests that people support punishing rule breakers because they are afraid that they, their families, or others in their community will become the victims of rule breakers. The second model is concerned with the moral meaning of rule-breaking behavior. This model suggests that rule breaking is an affront to social and moral values and norms, while punishment reasserts community commitment to those values. This approach focuses on the “symbolic” meaning of rule breaking. This argument . . . suggests that social values should be linked to concerns about cohesiveness in the bourgeois family, since the family is the origin of values and norms.

Extending the Test of the Antecedents of Punitiveness Previous comparisons of the antecedents of punitiveness have contrasted the influence of instrumental judgments with that of social values. This analysis makes that comparison but also expands the test of the influence of noninstrumental issues by exploring the impact of judgments about moral cohesion. Those judgments are then directly compared with judgments about dangerousness. The problem with previous studies is that they have not identified the nature of the noninstrumental public concerns that affect policy positions. This article does so by directly examining which symbolic issues are of concern to the public. Within the context of authority relations, concerns about the nature of cohesiveness within a group have been labeled “relational concerns” (Tyler and Lind 1992) and contrasted with instrumental concerns, which develop out of personal fears and desires.



This study directly tests the relational prediction by exploring the influence of concerns about cohesion the strength of social bonds and moral cohesion on reactions to rule breaking. That influence is distinguished from the effect of instrumental concerns about potential personal risk or the danger of living in a society. The two types of judgment dangerousness and cohesion are made about crime-related concerns and social conditions. Each identifies a source of public concern. Within crime-related concerns, the two sources examined are concerns about crime victimization and concerns about the effectiveness of the courts. Within social conditions, there are four sources of concern: conditions in the state of California, conditions within the respondent’s own community, conditions in the family, and the growing diversity of society. In each case, two types of questions are asked about each potential source: (1) Is it creating tangible personal risk and is it dangerous? (2) Are there signs of declining social cohesion a “symbolic” societal level harm?

Method Respondents Respondents were a random sample of 166 adults living in the East Bay area of Northern California. Respondents were interviewed over the telephone. The mean age of the sample was 43. The respondents were 43% male. Sixty-six percent were European American, 20% African American, 7% Hispanic/Latino, and 6% Asian American. Sixty-one percent of respondents had a bachelor’s degree or higher, and 39% made over $50,000 per year. Finally, 49% described themselves as liberals, 34% as moderates, and 17% as conservatives.

Questionnaire Dependent Variables Three attitudes were the focus of concern in this study: support for the three strikes initiative; overall punitiveness toward rule breakers; and the willingness to abandon procedural protections. Independent Variables Three types of independent variables were used to predict the dependent variable. The first category of independent variables involves judgments about crime and the courts. Crime can be viewed from two perspectives—worry about crime victimization and judgments about the courts. One viewpoint is a problem of personal risk or dangerousness a tangible harm. For example, people may be concerned that they will be the victims of a crime, or they may think that crime is an important and serious societal problem. They may also be concerned because they feel that the courts are corrupt and/or fail to protect people from crime and criminals.


To m R. T yl e r a n d Rob e rt J . B oe c k m a n n

The second category of independent variables involve judgments about the social world. Although two theoretical frameworks—instrumental and relational—have been distinguished, it is not necessarily true that respondents distinguish between these two types of judgment. Hence, within each of the four social arenas—California, community, family, and diversity—an exploratory factor analysis was conducted to identify the naturally occurring factors. Strikingly, in each case, there were two basic factors; on inspection, one was labeled instrumental and one labeled relational. Hence, the factor structure found supports the suggestion that respondents distinguish between concerns about dangerousness and concerns about cohesiveness. The scales formed in each case follow the results of the factor analysis. Of course . . . those two aspects of public concern are not independent. They are correlated, suggesting two overlapping types of respondent judgment. One reflects the instrumental judgment of dangerousness, the other the relational judgment of moral cohesiveness. The average correlation between these two judgments is r = 0.40. A third category of antecedents of support for the three strikes initiative are basic social and political values, including authoritarianism, dogmatism, and liberalism.

Results The first concern is with support for the three strikes initiative. In addition to examining the antecedents of support for a specific public initiative “three strikes and you are out” we can examine the antecedents of public support for generally punitive policies.

Sources of Support Demographic Influences [A]n examination of demographic influences on support for the initiative indicates that the primary predictor of support was education, with low education leading to greater support (beta = .27, p < .001). Education also predicted overall punitiveness (beta = .30, p < .001), with those low in education being more punitive. The young were also more punitive (beta = .22, p < .01), as were minorities (beta = .17, p < .01). Finally, the young were more willing to abandon procedural protections (beta = .27, p < .001). Antecedent Attitudes Three types of antecedent attitudes were compared: judgments about crime, judgments about social conditions, and judgments about social values. The influence of these factors on the dependent variables is shown in Table 24.1. Support for the initiative was primarily shaped by social values and judgments about social conditions. Crime-related concerns were a minor influence. The same general conclusion was supported in the case of general punitiveness and the willingness to



Table 24.1 Antecedents of Support for the Three Strikes Initiative, General Punitiveness, and the Willingness to Abandon Procedural Protections Support for the Three Strikes Initiative

Support for General Punitive Policies

Willingness to Abandon Procedural Protections




Judgments about Social Conditions




Social Values








Judgments about Crime and the Courts

* p < .05 ** p < .01 *** p < .001

abandon procedural protections. The primary factors shaping these general orientations were social values (average beta = .41) and judgments about social conditions (average beta = .22). The average beta for crime-related concerns was only .12. These findings suggest that the image of the citizen as supporting punitive public policies because of fear of crime or grievances against the courts is inaccurate.

Sources of Support for Punitiveness It is also possible to distinguish among the four possible judgments about social conditions and consider the impact of each on people’s reactions to rule breakers. The findings shown in Table 24.2 indicate that the primary factor driving reactions to criminals are judgments about the family. Such judgments had a significant influence on all three dependent variables. A secondary issue is judgments about diversity, which affect general punitiveness and procedural protections. Table 24.2 The Influence of Judgments about Social Conditions on Reactions to Rule Breakers Support for the Three Strikes Initiative

Support for General Punitive Policies

Willingness to Abandon Procedural Protections














Social Conditions




Crime-related Concerns




Social Values








* p < .05 ** p < .01 *** p < .001


Tom R. T yler and Robert J. B oeckmann

The Nature of Support for Punitiveness What is the nature of public support? To explore this question, overall indices reflecting dangerousness and lack of moral cohesion were created. To create the dangerousness scale, fear of crime was combined with instrumental judgments about social conditions. To create the moral cohesion scale, judgments about the seriousness of the crime problem were combined with relational judgments about social conditions. By comparing the influence of each cluster of variables, it is possible to compare the importance of each view about the nature of public support for punitiveness. A more complex model is needed because social values are widely suggested to develop during the childhood and adolescent socialization process, while judgments about current problems are more contemporaneous, reflecting current social conditions. Hence, judgments about the world might themselves be affected by social values. To test this more complex model of influence, we used path analysis, which allows for taking into account both direct and indirect influences on the dependent variables. In the analysis, social values were used to predict judgments of dangerousness and moral cohesion. Both social values and judgments about social conditions were then used to predict the dependent variables. The results of a path analysis exploring the antecedents of reactions to rule breaking are shown in Figure 24.1. The numbers shown are beta weights, reflecting the standardized influence of each variable. They indicate that social values have an important influence on both judgments about the contemporary world. Hence, whether people view the world as dangerous and/or in moral chaos is in part a reflection of their underlying social values. Further, social values have a direct impact on support for the initiative, overall punitiveness, and willingness to abandon procedural protections. The world is dangerous


Willing to abandon procedural protections


.39 .54

Social Values


Support for three strikes initiative

.45 General punitiveness

.20 The world is not morally cohesive


Figure 24.1. Reactions to Rule-Breaking Behavior by Others



The central finding of this analysis is that support for the three strikes initiative, as well as for overall punitiveness, is linked to judgments about moral cohesion and not to judgments about dangerousness. On the other hand, willingness to abandon procedural protections is primarily linked to judgments about dangerousness.

The Sources of Support for Public Punitiveness These findings about the sources of support for public punitiveness are interesting in two ways. First, the findings are striking in terms of what is more or less important to the respondents. While much of the professional discourse about the three strikes initiative has focused on concerns about crime risk and the alleged failings of the courts, these factors are not the major factors underlying public support for the initiative. This is not to suggest that people do not have real concerns about crime and about the court system. However, those concerns were not the reason that people indicated support for the three strikes initiative. In this respect, the results of this study support the already outlined findings of the symbolic politics literature and previous studies of punitiveness in finding that instrumental effects on policy support are either weak or nonexistent. [T]he nature of the “symbolic” concerns  .  .  . can be specified. To an important extent, those concerns are linked to judgments about the social environment. As in prior studies, social values are found to have an important effect. However, judgments about social conditions have an additional influence once social value influences have been taken into account. Furthermore, social values are correlated to judgments about the social world, which suggests that one of the ways social values exert an influence is by shaping how people think about the social world. Two aspects of the social environment are key to public concerns about rule breaking: the family and diversity. In particular, both support for the initiative and general punitiveness are linked to concerns about the family. People are troubled because they feel that important institutions within society (for example, the family) are declining. In both cases, people are concerned about the symbolic harms that develop from the lack of a clear, shared set of moral values as well as from declining social ties among people. Interestingly, concerns about social diversity do not reflect only the belief among white Californians that minorities are dangerous. A separate analysis of this relationship among white and minority respondents indicates that minorities link increasing diversity to punitiveness as strongly as do whites. Hence, this feeling may reflect ethnocentrism—the discomfort felt by members of any group with outsiders. The feelings of unease produced by diversity may not reflect simple racism. They may also reflect the anxiety that members of any group feel when they are in an environment with many different types of people (ethnocentrism). Of course, this argument is not meant to discount the occurrence of racism and race prejudice. Many studies of crime have linked concerns about crime to issues of both class and racial prejudice.


Tom R. T yler and Robert J. B oeckmann

Why does declining moral cohesion lead to punitiveness? The results of this study suggest that people who feel that there are fewer moral and social ties among people also think it is harder to rehabilitate criminals. They also believe that other methods besides harsh punishment, such as shaming rule breakers by putting their names in the newspaper, will not lead them to change. Hence, without moral values or social ties to use as a basis for changing lawbreakers, as in the use of shaming, there seem to be few alternatives to simply incarcerating criminals for the rest of their lives (“warehousing”). The results of this analysis are also important because they show that social values are central to policy judgments. Discussions about public punitiveness have tended to place the locus of causality for public punitiveness in concerns about conditions in the world, whether crime related or social in nature. Social values  .  .  . both directly impact on people’s views about how to handle rule breaking and do so indirectly by shaping views about the dangerousness and moral cohesion of the world. Since social values represent long-term political orientations, they reflect a stable influence on public opinion and are unlikely to change in reaction to contemporary public events. In fact, public opinion polls over the past 40–50 years make clear that the wide support the three strikes initiative received is not a fluke or a response to some immediate event. Americans have been growing increasingly punitive over this time period. The findings also suggest the importance of education. Better-educated respondents are more likely to feel that there is moral cohesion in the family and the community. They are less likely to regard diversity as leading to a lack of common moral values, so diversity is less troubling to more tolerant highly educated respondents.

The Psychological Nature of Public Punitiveness People are primarily concerned about issues of moral cohesion in society. Interestingly, the willingness to abandon procedural protections is more instrumental in character. Those respondents who are concerned about crime indicate a greater willingness to abandon protections for defendants. This effect is found even when controls are made for underlying social values. Why would issues of dangerousness be the primary antecedent of the willingness to abandon procedural protections for those accused of crimes? We speculate that this influence flows from the general public evaluation of legal procedures as suspect and procedurally unfair. For example, the public believes that the courts often show unreasonable bias in favor of criminals vis-à-vis ordinary citizens and let too many criminals off due to “legal technicalities” such as the insanity defense and the exclusionary rule. Research on procedural justice suggests that when people feel that the procedures they are dealing with are unfair, they react to those procedures by judging the favorability of their outcomes (Lind and Tyler 1988). Hence the public may be evaluating procedural protections in outcome terms because they regard current legal protections as basically unfair “legal technicalities,” that is, as unfair procedures.



Theoretical Implications [I]nstrumental explanations have dominated discussions about public views on rules and rule breaking. Recognition that people’s views about their community and the cohesion of that community shape their responses to rules and rule breaking suggests an important direction for future research. The manner in which people think about the communities to which they belong is strongly affected by the way that people think about the groups making up those communities. One important influence on that thinking is the actual composition of the community the degree to which it is diverse. Within California there have been major increases in diversity in recent years, and further increases are predicted. A second important influence is the way people conceptualize their loyalty to their community. Is that community their ethnic or racial subgroup? Or is it the larger state or national authority that includes all groups? In recent history nationalism has acted as an important superordinate focus of identification, uniting communities diverse in ethnic and racial terms. However, nationalism may not be a psychologically compelling form of identification, and may have to be held in place by forces such as the fear of a powerful enemy. In the aftermath of the decline of the Cold War and its ideologies, there may be major changes in the way people conceptualize their identification with their communities. In particular, there may be greater focus on ethnic and racial subgroup memberships and declining superordinate identification with larger state- or national-level authorities. The findings outlined here suggest that learning how people understand and define the nature of society and community can help us understand how they react to rule breakers.


Situating Legal Consciousness Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment L aura Beth Ni e lsen

In this article I analyze the legal consciousness of ordinary citizens by examining how experiences with and legal attitudes toward offensive public speech vary by race, gender, and class. I find that white women and people of color experience dramatically higher levels of offensive public speech and that these experiences significantly affect their daily lives. Yet experiencing harms from offensive public speech does not translate into supporting its legal regulation. Subjects offer a variety of reasons to justify their opposition to the legal regulation of such speech. Members of different racial and gender groups articulate distinctive discourses about offensive public speech and the law that invoke various and competing schemas regarding law. These understandings reflect their prior experiences with the law and their attitudes about the prospects for social change through law.

Theoretical Rationale for Studying Legal Consciousness and Offensive Public Speech Legal consciousness research examines the role of law (broadly conceived) and its role in constructing understandings, affecting actions, and shaping various aspects of social life. It centers on the study of individuals’ experiences with law and legal norms, decisions about legal compliance, and a detailed exploration of the subtle ways in which law affects the everyday lives of individuals to articulate the various understandings of law/ legality that people have and use to construct their understanding of their world. Legal consciousness also refers to how people do not think about the law; that is to say, it is the body of assumptions people have about the law that are simply taken for granted. These assumptions may be so much a part of an individual’s worldview that they are difficult to articulate. Thus, legal consciousness can be present even when law is seemingly absent from an understanding or construction of life events. Offensive public speech is a compelling context in which to explore legal consciousness. Because the nature of race- and gender-based street speech is central to Abridged from Law & Society Review 34, no. 4 (2000): 1055–90.




personal identity, offensive public speech is personally significant to those who are routinely made its targets. And offensive public speech connects, reinforces, and perpetuates existing hierarchies of race and gender. Moreover, law is implicated in such speech. If the law protects such speech, it grants a license to the practice. But targets of offensive remarks might also look to law as a tool for rectifying these problems, making law fundamental in constructing this aspect of social life. A third reason to study legal consciousness regarding offensive public speech is that it implicates an area of legal doctrine that is ambiguous and contested. Unlike workplace discrimination on the basis of race or gender, offensive public speech remains largely unregulated. Finally, the ideal of free speech is a celebrated canon of American constitutional democracy.

Method [U]sing qualitative research techniques to probe the complexity of legal consciousness, while also interviewing a large enough number of subjects of different races, genders, and classes (n = 100) to begin to gauge variation . . . proved especially valuable. The field observations allowed me to witness and record various types of interactions between strangers in public places. Because I observed many subjects being harassed in public and their reactions to such comments, I was able to guard against the tendency some subjects might have had to inflate the bravado with which they responded to such comments. Of course, simply observing was not sufficient because I needed to learn how the subjects experienced such interactions, not simply how they responded. The in-depth interviews provided an opportunity to gain an understanding of how individuals think about such interactions. I systematically sampled subjects from the public places I observed. This strategy has several advantages. First, I knew that the subjects were consumers of public space, and thus they constituted a set of potential targets for offensive public speech. Second, by approaching subjects in person, I could establish rapport in a way that would have been impossible if I had initiated contact by telephone. This rapport was essential, given the sensitive nature of the interview questions. I selected field sites in a variety of locations in three communities in the San Francisco, California, Bay Area (Orinda, Berkeley/Oakland, and San Francisco) to insure broad representation across race, socioeconomic status, and gender among subjects selected to participate in the interviews. Second, I varied the day of the week, going to each of the locations on weekdays and weekends. Third, I varied the time of day by observing in each location during day, evening, and night hours. The field sites I selected were public places, such as sidewalks, public transportation terminals, and bus stops. Finally, to guard against approaching only potential subjects with whom I felt comfortable and to randomize subject selection within field sites, I devised a system whereby each person in the site had an equal chance of being approached. I selected individuals to approach and asked whether they would participate in an interview about interactions among strangers in public places. I continued such selections until


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I achieved numerical goals for respondents with certain racial and gender characteristics. I oversampled white women and people of color for analytic purposes. Of 190 eligible subjects approached, 112 agreed to participate and 100 were interviewed, resulting in an effective response rate of 53%. Some interviews were conducted in person, but most were conducted on the telephone. The interviews lasted from 30 minutes to two hours, and the average was about one hour. The interviews began as open-ended, relatively unstructured discussions about being the target of offensive public speech. I took care not to introduce the topic of law or legal regulation of such encounters, preferring instead to see if subjects brought it up spontaneously.

General Attitudes toward Legal Regulation Who might support the legal regulation of offensive public speech? [In my sample, educational] level does not explain the patterns of general support for the legal regulation of offensive public speech among my respondents. In fact, those with the highest levels of education were more likely to favor the legal regulation of offensive public speech. Additionally, the level of commitment one has to the First Amendment generally bears no relationship to attitudes about regulating offensive public speech. [R]espondents’ attitudes toward the regulation of speech were related to their experiences with the forms of speech (which is related to their race and gender) and to whether they consider such speech to be a personal and/or social problem. The data . . . demonstrate that, among these respondents, women are far more likely than men to report experiencing sexually suggestive speech, and women are much more likely than men to report it as a serious personal problem. However, women are less likely than men to favor the legal regulation of sexually suggestive speech in public places. Similarly,  .  .  . people of color are significantly more likely than whites to report experiencing racist speech and to identify it as a serious personal problem. Nonetheless, whites are significantly more likely than are people of color to believe that racerelated speech between strangers in public places poses a serious social problem. Further, people of color are only slightly (and not significantly) more likely than whites to favor regulating offensive racist speech. When asked generally about the regulation of offensive public speech, only 12% of respondents favored legal regulation. Even when presented with specific examples of the types of speech, only 35% of respondents favor the legal regulation of begging, 40% favor the legal regulation of sexually suggestive speech between strangers in public, and 37% favor the legal regulation of race-related speech between strangers in public places. This surface-level agreement masks the diverse underlying reasons that subjects gave for opposing the legal regulation of offensive public speech. One possible interpretation of these findings is that most people generally resist the intrusion of law into their lives. They prefer to handle problems—even problems they regard as fairly serious—on their own. Another interpretation of these data is that they vindicate conventional First Amendment theories. Even the “victims” of offensive speech are unwilling (or at least reluctant) to limit public speech because they recognize the



value associated with allowing speech. A more critical analysis is that the dominant cultural ideology regarding the First Amendment has a powerful hegemonic effect, resulting in strong opposition to the regulation of speech.

Discourses on Opposing Legal Regulation: Four Paradigms The unstructured portions of the interviews reveal that respondents offered four “paradigms” for opposing the legal regulation of offensive public speech. The four paradigms, which I document using the subjects’ own words, are: the freedom of speech paradigm, the autonomy paradigm, the impracticality paradigm, and the distrust of authority paradigm. Each pattern represents a well-thought-out rationale for disfavoring the legal regulation of speech. Those who made a First Amendment argument said that they disfavor the regulation of any speech because of their allegiance to the principles they think the First Amendment embodies. Those who espoused the autonomy paradigm said that they disfavor the legal regulation of offensive public speech because these types of interactions are best dealt with by the individual target. Respondents in favor of the impracticality paradigm said that offensive public speech cannot feasibly be regulated because of resource constraints in every phase of the legal system, from law enforcement to the judiciary. Finally, some subjects opposed the legal regulation of offensive public speech because they do not believe such laws would be enacted or enforced fairly by legal officials, thus reflecting a general distrust of authority. Paradigms vary by social group. [W]hites were more likely to say that the First Amendment was their primary reason for opposing the legal regulation of offensive public speech (46%) than were people of color (33%). People of color were far more likely to cite the distrust of authority paradigm (28%) than were whites (4%). Nearly one-third of women cited autonomy as their primary reason for opposing the legal regulation of offensive public speech, whereas only 3% of men did so. Women were more likely than men (30% vs. 17%) to say that they think such regulation is impractical. Freedom of Speech Paradigm Although many respondents mentioned First Amendment concerns about the legal regulation of offensive speech in public places, only some cited the First Amendment as their primary motive for opposing legal regulation. The most common argument put forth by respondents who fall into the free speech paradigm is what lawyers call the “slippery slope” argument. The reasoning is that if one form of speech is restricted, other, presumably more valuable, speech will ultimately be restricted as well. This subject’s comments were typical of those who made the layperson’s version of the slippery slope argument: I don’t know, I think it’s hard. I think once you start restricting one thing, it can get carried away and you can restrict other things. I guess generally I think that people should just have a little more respect for each other and their own space and stuff. (30-year-old white man)


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This quotation demonstrates the respondent’s recognition of the problem of the slippery slope and his nonlegal tactic (more respect for each other). His solution is to forget about law and to move toward a more “civil” society, in which we allow each other space. Although . . . rights-based reasoning underlies much of the opposition to the legal regulation of offensive public speech, this is largely true only for a particular subset of respondents—white males. The people of color I interviewed were far less likely to cite the First Amendment or freedom of speech as their primary reason for the opposition to legal regulation of offensive public speech. One reason the First Amendment category is mostly composed of white males may be the infrequency with which white men are targets of offensive public speech. Given the high stakes associated with imposing legal regulations on speech (infringing on a fundamental right), white men are unlikely to favor legal intervention and are more likely than others to cite the First Amendment as a primary reason for their opposition. Those who fall into the First Amendment paradigm think of the law, particularly the First Amendment, as fair, just, and legitimate, despite occasional unfortunate outcomes. The “Autonomy” Paradigm About one-fifth of subjects studied oppose the legal regulation of offensive public speech because of their feelings about autonomy. The autonomy paradigm is based on women’s understanding of the phenomenon of street harassment, how best to remedy the problems of gender inequality, and their views of the proper role of law in the latter endeavor. Even women who reported being the target of frequent offensive speech from strangers in public places tended to downplay the seriousness of such interactions when the idea of law was introduced as a possibility for dealing with the problem. These subjects seem to have a sense that women can control being made the target of offensive public speech. They also imply that women do not need lawyers or courts to fight what should be considered “personal battles.” In other words, instead of embracing the law to remedy or to prevent the problems that accompany sexually suggestive street speech, the women I interviewed said they prefer to control the situation by reinterpreting it as relatively harmless; some women denied that street speech affects them at all. One way that women downplay the significance of sexually suggestive remarks from strangers in public places is by arguing that it is not as bad as it seems. Some respondents said that the problem of public sexual harassment is not as bad in the United States as it is elsewhere in the world. I don’t know if it [sexually suggestive or explicit comments between strangers in public places] is so much a social problem—because I don’t think they have to be stopped. I guess I would compare it to—well, one time I went to Mexico, and it seemed like there it was a lot more prevalent, and in Italy, too—there a lot more. They seem much more open that way, with that sort of stuff. So I would guess it is more of an individual problem. (35-year-old white woman)



This attitude was not evident before I introduced the idea of law as a remedy, however. When I asked only about the interactions, the women espousing the autonomy paradigm said that they were deeply troubled and affected by suggestive comments. In addition to their argument that the law should not intervene because the problem is really not severe, women in this category disfavored legal intervention because they believe that women can avoid being made the target of such speech and that they can control the situation when they are, nonetheless, targeted. The fundamental principle that underlies the autonomy paradigm is that women can and should be able to handle these types of situations on their own. Women who invoked the autonomy paradigm did not even reach the normative question of whether they should have to handle inappropriate speech situations. The fact that these interactions will occur was taken for granted by the women holding this position. In their view, the most important thing is that women should not rely on anyone else. Some women were blunt when placing the responsibility for these situations on women: A woman . . . can take care of herself. If she doesn’t like what a man is saying to her, I think she can turn around and tell him. I think she can stop it if she wants to. (59-yearold white woman)

The autonomy paradigm presumes that many problems of gender inequality cannot be resolved effectively by the use of law. In this view, women, by invoking the law rather than dealing with the problem at the individual level, make themselves appear helpless or as “victims.” The “Impracticality” Paradigm The third rationale that subjects invoked to oppose the legal regulation of offensive public speech is the sheer impracticality of catching, trying, and punishing individuals violating such laws. In general, people I categorized within the impracticality paradigm expressed concerns about enforcement both in the streets and in the courts. Those concerned with enforcement in the streets believe it would be difficult to find police officers to apprehend violators of proposed anti-hate speech regulations. For example, one woman said, I just can’t imagine that [arresting or otherwise punishing people for making race-related remarks]. It would just tie up too much time for the police. No. (53-year-old white woman)

The impracticality paradigm is interesting, in part, because many subjects made the argument that there ought to be laws prohibiting this type of speech, but their concerns about the inability to enforce such laws overwhelm this normative belief. Consider this woman’s comments: I don’t know how you would do that [enforce laws prohibiting offensive public speech]. Because you can’t have a policeman on every corner—I think you should be arrested for


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that. But, like I say, that’s impossible. Because we can’t have a policeman everywhere in the city. (51-year-old white woman)

She firmly believes that making racist comments to strangers in public places should be a criminal offense, but she also believes that the First Amendment does not provide a barrier to the criminalization of this action. Her reservations about a legal remedy are based on her opinion that the police would be unable to enforce such a law. Among respondents, women were far more likely than men to cite impracticality as their primary reason for opposing laws against offensive public speech, with nearly one-third (30%) of women citing impracticality and less than one-fifth (17%) of men doing so. Distrust of Authority/Cynicism about Law Paradigm The fourth reason subjects cited when opposing the regulation of offensive public speech seems to stem from a general distrust of authority and cynicism about law. Those who employ this paradigm connect past experiences with law and legal actors to the issue at hand—the regulation of offensive public speech. Their responses are predicated on the belief that the law cannot really help or that it will actually be used against those it was intended to protect. [T]he distrust of authority paradigm is a view widely held among African American men in this sample. What distinguishes respondents primarily engaged in a discourse of cynicism from those who espoused the impracticality paradigm is that the former based their opinions on past bad experiences with the law or legal actors. Some subjects believe they were treated unfairly. [O]ne subject was skeptical of laws prohibiting such behavior, not because of her commitment to the First Amendment but because of her cynicism about the ability of law to alter behavior. Her cavalier attitude toward the First Amendment was typical of many white women and people of color. Others who invoked the cynicism, or distrust of authority, paradigm simply do not believe that any action the government could take would translate into altered behavior by those who engage in offensive public speech. Others had a more insidious view of government, believing not only that the legal system would be ineffective but also that “the system” itself is corrupt and would therefore not work to achieve the goal of eliminating racist and sexist speech. Well, the dilemma I’m in is that I think the whole [legal and political] system is so bad and so rotten that uh—making it larger doesn’t make a lot of sense. I think the whole thing needs to be—I think we need to scrap this one and start over. (59-year-old African American woman)

African American men told sadly familiar tales of unjust police actions that have led them to question the implementation of any law designed to protect them from racially harassing speech. Others within the distrust of authority paradigm discussed legal and political institutions and their view that they are corrupt and unhelpful.



Toward a Theory of Situated Legal Consciousness [W]hether offensive public speech is viewed as a social problem does not vary by group—there is near unanimity that racist and sexist speech pose serious social problems, while relatively few subjects think begging does. Moreover, there appears to be a near consensus that offensive public speech should not be regulated by law. This near-unified opposition to the regulation of offensive public speech masks the variation in citizens’ reasoning about the problem and the role of law in dealing with it. This surface consensus opposing the regulation of speech obfuscates the underlying differences that tell an important story about the law, legality, their role in people’s lives, and how people’s experiences in one area may sometimes provide the basis for general attitudes toward law, legal institutions, and legal actors. The data herein go beyond describing general orientations toward the law to trace the factors that influence how people arrive at their general position vis-à-vis the law, demonstrating that people make connections from their past experiences—good or bad—which arise in part from the social positions they occupy—and that these experiences shape their understanding of the law. Thus, the social location of subjects, and the experiences that arise from that location, are a vital part of our understanding of legal consciousness. From this study we see that being a member of a traditionally disadvantaged group has a significant effect on an individual’s orientation to the law. Although most subjects denounced the idea of introducing the law to solve what they perceived to be a serious social problem, their reasoning nonetheless was based upon their understanding of “law” in the broadest terms. Legal consciousness affects not only how people think about invoking the law or the general utility of law but also how people interpret events in their everyday lives. The law shapes what remedies respondents believe are possible and plausible, as well as respondents’ understanding of these common everyday events as a troubling, yet unavoidable and unremediable, part of social life.

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Idle Rights Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies Anna- Maria Marsha l l

Many significant law and society studies have documented patterns of legal mobilization among average people confronting conflict in their daily lives. These studies have demonstrated that although legal rights and entitlements may be formally available, they are rarely invoked. There can be considerable difference between what people are entitled to under law and what they actually receive. Thus, this article fits into a long tradition of exploring this gap between the law on the books and the law in action, but it builds on this tradition by including in the “law in action” the meaningmaking activities of ordinary women confronting unwanted sexual attention. In this study, I examine rights at work in a grievance procedure in a single workplace. I adopt a legal consciousness perspective that emphasizes the experiences of employees with complaints about unwanted sexual attention from co-workers and supervisors. Indeed, this study confirms that management interpretations shape the way supervisors implement the policy. But just as important are employee responses to these management practices. Women anticipate skeptical treatment by their supervisors and develop strategies to meet that skepticism. As a result, women complain about only the most serious or most troubling forms of sexual conduct, thus enacting a legal consciousness that reflects a narrow meaning for “sexual harassment.”

Legal Consciousness in Action To include employees’ participation in the construction of meaning of sexual harassment policies, I rely on the framework for studying legal consciousness. In everyday locations, such as workplaces, ordinary people make sense of their experiences by relying on legal categories and concepts even though they may not be familiar with the details of formal rules and regulations. Law provides cultural schemas that people use to understand their everyday experiences. Ewick and Silbey define these schemas broadly as “legality”: “the meanings, sources, authority and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends” (1998: 22). Thus, Abridged from Law & Society Review 39, no. 1 (2005): 83–124.



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legality embraces such widely familiar concepts as “property,”“evidence,” and “sexual harassment,” which provide commonsense categories for everyday experiences while at the same time implicating specific rights, claims, and legal procedures. Like other schemas, legality does not reside exclusively in an individual’s ideas and attitudes. Instead, to maintain its vitality, legality “must also be continually produced and worked on—invoked and deployed—by individual and group actors” (Ewick and Silbey 1998: 43). Grounded in social and cultural practice, legal consciousness is the individual’s “participation in this process of constructing legality” (Ewick and Silbey 1998: 45). In this constitutive theory of law, then, even as legality shapes the meaning of everyday life, ordinary people reshape the meaning of legality as they deploy legal meanings in new settings. According to Ewick and Silbey, Every time a person interprets some event in terms of legal concepts or terminology— whether to applaud or criticize, whether to appropriate or resist—legality is produced. The production may include innovations as well as faithful replication. Either way, repeated invocation of the law sustains its capacity to comprise social relations. (1998: 45)

Yet legal consciousness is more than just the meaning that people assign experience; it must also include the social and cultural practices of enacting those meanings. Legal consciousness is reflected in what people say and do, in addition to what they think. Indeed, the expansion of civil rights logic—from African Americans to women and most recently to gays and lesbians—emerged from litigation campaigns based on these new meanings. But law can also be reproduced—and transformed— in the context of everyday situations and conflicts, in conversations with supervisors and confrontations with co-workers. Indeed, it is in these interactions that the difference between constitutive and instrumental conceptions of law begins to collapse and gives law its expansive power to define widening realms of experience. Yet legality may also lose its power “to comprise social relations” if it falls into disuse. When a person ignores or rejects some right or benefit authorized by law, those rights remain idle. Indeed, rights may contribute to the individual’s understanding of events and experience. However, by declining to enact those rights in any context— by ignoring them or by rejecting their significance to remedy an injustice—individuals decline to participate in the continuing reconstruction of legality that gives vitality to law. When rights remain idle, law’s ability to shape meanings and opportunities and practices is diminished.

The Design of the Study The analysis in this article is based on a multimethod approach to studying women’s experiences with unwanted sexual attention at work. I relied on both in-depth interviews and a survey in a single workplace to understand working women’s decisions about whether to complain about their encounters with unwanted sexual attention. The survey confirmed women’s widespread reluctance to complain, while



the interviews revealed the way the sexual harassment policy and procedures shaped women’s reasoning process in evaluating the value of pursuing a complaint. I conducted the research in a single workplace—a large university in the Midwest (the “University”)—and restricted the subjects to female staff members in administrative and clerical positions. I excluded faculty members and students from the sample unless they occupied administrative or clerical positions so that the employees in the sample would resemble employees in work settings other than universities. Lasting from 45 minutes to an hour and a half, the interviews were tape-recorded and transcribed. I used a semi-structured battery of questions to conduct the interviews. I asked the women about their experiences with unwanted sexual attention at work. I also asked them about all the things they did in response, including formal and informal methods to redress the situation. In asking these questions, I was also able to discern their experiences with and observations of the University’s sexual harassment policies and procedures. At the end of the questions about their experiences, I asked them whether they thought the behavior was sexual harassment. I departed from the schedule when the subjects wanted to elaborate about a particular topic. Conducted after the interviews, the survey was designed to confirm the general patterns detected in the in-depth interviews. In particular, I sought to document women’s experiences with unwanted sexual attention at work, their use of the label sexual harassment to describe those experiences, and their responses to such behaviors. I drew a random sample of 1,000 subjects. I sent a questionnaire to each respondent along with a cover letter briefly describing the goals of the research and a follow-up letter asking them to complete the questionnaire if they had not already done so.

The Legal Domain: Sexual Harassment Law and University Policies At the time this study was conducted, the University had a written sexual harassment policy (“Written Policy”). According to University officials, both human resources professionals and lawyers for the University participated in drafting the Written Policy, but human resources professionals were chiefly responsible for training supervisors how to use it. It applied to all members of the University community, including faculty, administrators, and support staff. In the preamble to its policy, the University offered an expansive view of the harms of sexual harassment. In addition to this broad endorsement of worker dignity, the University’s definition of prohibited conduct expanded on the legal definition of sexual harassment: Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when: (1) submission to such conduct is made or threatened to be made either explicitly or implicitly a term or condition of an individual’s employment or education; (2) submission to or rejection of such conduct by an individual is used or threatened to be used as the basis for academic or employment decisions affecting that individual; or (3) such conduct has the purpose or effect of substantially interfering


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with an individual’s academic or professional performance or creating an intimidating, hostile or offensive employment, educational or living environment.

These prohibited behaviors offered broader protection than the legal definition of sexual harassment. The Written Policy also outlined a flexible process for resolving complaints. First, employees could bypass their supervisors and take their complaints to one of many specified University officials, including the deans of the colleges, the human resources department, and the Women’s Center. In fact, supervisors were not even specified as an option, thus perhaps suggesting that the policy was directed mostly at preventing and punishing harassment by supervisors. It also explicitly promised employees that they would not be retaliated against if they complained, and it directed officials receiving complaints to “immediately seek to resolve the matter by informal discussions with the persons involved.” The policy therefore anticipated that managers would handle problems before the more formal grievance procedure was ever invoked. Along with its flexible approach to resolving complaints, the Written Policy provided modest due process protections for both the complainant and the accused. The University made significant efforts to publicize its sexual harassment policies.

Enacting the Grievance Procedure: Management Practices and Women’s Responses All the women in the study confronted behaviors that arguably met the definition of prohibited conduct in the Written Policy. On paper,  .  .  . sympathetic supervisors had ample authority to intervene in most of the situations reported by women in this study. In practice, however, supervisors rarely exercised their broad authority on behalf of complainants. According to the women who encountered sexual conduct at work, managers interpreted the policy in ways that discouraged complaints, adopting an adversarial posture that challenged rather than supported women seeking relief. Women learned of this management posture either through their own interactions with supervisors or by observing their colleagues who navigated the anti-harassment policy. These interactions with supervisors shaped women’s choice of strategies in responding to harassers, with the most common response being “lumping”—or abandoning—their complaints. As a result, the harassing conduct addressed through the grievance procedure was considerably more serious than the prohibited conduct as defined in the Written Policy. Women were most likely to complain—and management most likely to act—when the complainant had proof of the harassing behavior, when the harassers bothered more than one person, or when the conduct was truly outrageous. But incidents that did not meet these rather narrow standards were likely to go unaddressed. Moreover, the Written Policy and the practices enforcing it shaped women’s legal consciousness, leading them to distinguish between their rights in the abstract and rights that they could enforce. Thus, the law of sexual harassment lost much of its power to shape women’s working lives.



Management Practice Managers at the University frequently engaged in three sets of practices that discouraged women from complaining. 1. Taking Sides

According to the Written Policy, supervisors were supposed to receive and resolve complaints. To fulfill this responsibility, they should have tried to remain neutral. Yet several women reported that when they described examples of unwanted sexual attention, their supervisors immediately took the harassers’ side by making excuses and condoning their behavior. After a series of disagreements with a faculty member for whom she did clerical work, Emma passed him and several of his colleagues in the hall. The faculty member “asked if I minded if he would pinch my rear end. What could I say?” After thinking about this incident in the context of other problems she was having with the faculty member, she complained to the chair of the department, who told her, “‘He’s just going through a stage. You need to be very—you need to handle him with kid gloves, and you need to be very tolerant.’ This was, of course, not what I wanted to hear.” Women reported that supervisors were more sympathetic to complaints about contrapower harassment, where the harassers had inferior organizational status to both the targets and the supervisors. Several survey respondents reported incidents with student athletes, but their prompt intervention—with the help of human resources personnel—solved the problems. One reported, “I specifically spoke to the students about the comments and how I felt about it. It was a teachable moment for them. They seemed remorseful and apologized. They seemed to understand the error of the display. It has not happened again. I think [the University] does a good job about informing its employees about the issue.” Thus, in these cases, the relative organizational status of the supervisors, the complainants, and the harassers influenced the supervisors’ gatekeeping, which is inconsistent with the policy’s broad purpose of protecting employee rights. [S]upervisors designated as complaint handlers can appear to be biased before they ever hear a complaint, thus compromising their ability to conduct an investigation or to solve problems. Indeed, women may sometimes derive benefits from supervisory favoritism, but the grievance procedure’s capacity for protecting employee rights nevertheless depends on the vagaries of close organizational or personal ties between those employees and the complaint handlers. 2. Manufacturing Obstacles

In practice, managers interpreted the grievance procedure to exempt certain categories of harassment and harassers and to introduce new steps into the complaint process. These interpretations created obstacles that were inconsistent with the Written Policy’s broad mandate to protect employee rights and dignity. For example, some supervisors created exemptions from the Written Policy for powerful organizational actors, such as tenured faculty members. On occasion,


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same-sex, contrapower harassment was also exempt, particularly when the conduct underlying the incident was ambiguous. In addition to creating exemptions, supervisors could use their extensive discretion by adding steps that made complaints a less-attractive option for aggrieved employees. For example, like most such procedures, the Written Policy did not require employees to confront their harassers. However, as an office manager, Megan imposed this requirement on a group of women who wanted to complain about a co-worker whose behavior was bothering them. Megan herself had been a target of his harassing conduct; she admitted that he had been “very sexually inappropriate throughout the entire year that he was here.” Yet when a group of other women wanted to file formal charges, she sent them away: I put the kibosh on that because I said, “Have these people addressed him personally on these issues. Have they approached him?” Well, some did but mostly no. And I thought I’m going to interject here and say that’s not fair. This person—much as I do not care for him—we owe him . . . the opportunity to change his behavior. Before you start pushing paper through those channels, let him know he’s a jerk, and [you] don’t like what [he’s] doing. Otherwise it’s not fair.

Although Megan admitted that the women may not have felt comfortable coming forward, she dismissed their concerns because the harasser had no formal authority or influence over their jobs. Thus, Megan’s authority to administer the grievance procedure also gave her the authority to interpret its provisions in a manner in keeping with her conceptions of fairness, which created new obstacles for the women who sought to complain about the harasser. Like many sexual harassment procedures, the breadth of the Written Policy required that complaint handlers exercise extensive discretion to resolve problems. In addition to their evaluations of employees’ complaints, their interpretations of the Written Policy also reflected their own conceptions of fairness, their understanding of power in the organization, or their desire to protect their employer from liability. When they implemented these interpretations, they also created meaningful obstacles to women’s access to dispute resolution. 3. Narrowing the Writ ten P olicy

Many supervisors narrowly interpreted the Written Policy’s broad promise of protection for worker dignity and equality. These supervisors effectively dismissed women’s complaints on the grounds that incidents were not sufficiently serious or offensive to constitute a violation of the Written Policy. Without a violation, they argued, they were powerless to intervene. The human resources department also offered preliminary assessments of complainants’ cases and concluded that the behaviors were too trivial to violate the Written Policy. For example, a survey respondent’s supervisor frequently made crude sexual remarks—remarks that bothered her a great deal. Yet she was discouraged from



pursuing a complaint: “I discussed it with the EEOC rep—she didn’t feel the case was strong enough to bring a formal complaint.” [T]he managers make grievance procedures an adversarial process that actively discourages complaints. Supervisors rehearse the harassers’ defense by questioning the complainants’ credibility or rationalizing the harassers’ behavior. They impose burdens that make complaints seem threatening or causing conflict, and they would probably conclude that a “personality conflict” did not violate the anti-harassment policy. In the end, when supervisors decline to deploy their authority, formal or informal, to help employees having problems with unwanted sexual attention, they do nothing to resolve employee problems and also strongly suggest that organizational power protects harassers rather than the targets. Women’s Strategies against Unwanted Sexual Attention When confronting these adversarial management practices—either themselves or vicariously through the experiences of their co-workers—women developed strategies for dealing with unwanted sexual attention. First, women prepared for complaints as though they were preparing for litigation, gathering evidence and witnesses to support their claims. Second, women engaged in self-help by confronting harassers directly, sometimes in the shadow of the Written Policy but sometimes acting on their own authority. Finally, some women rejected the Written Policy and procedures and lumped their complaints by ignoring the incidents. Of the women interviewed for the study who complained to a third party about their sexual encounter at work, all were convinced that the experience amounted to sexual harassment. Consisting mostly of extremely explicit sexual overtures or physical contact, these incidents probably met the behavioral tests for sexual harassment. Once that threshold was crossed, however, not every woman braved the grievance procedure. These women only approached the grievance procedure when they were able to gather evidence to substantiate their claims in the face of aggressive management gatekeeping. One type of evidence was the support of co-workers to corroborate their stories about harassing incidents. Women also preserved written incriminating evidence to bolster their credibility. When there was no incriminating evidence, women tried to create it by documenting the harassing incidents. Notably, every woman I interviewed—even the ones who did not complain—had committed the event to writing. Several women reported that their complaints seemed to attract little attention from their supervisors; nothing ever seemed to happen to the harassers. Often, the conduct continued just as it had before the complaint. Worse than witnessing inaction, women also found themselves to be targets of retaliatory action. This retaliation took a number of different forms. Some women reported receiving negative performance evaluations when they complained about their experiences. Another form of retaliation was removing the complainant from job duties or projects. Even when


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women did not face direct, negative job consequences, several found that their daily work lives suffered when they complained about harassment. Some women in the study engaged in self-help by directly confronting the harassers rather than getting a third party involved. But women who chose this strategy were enacting the Written Policy in very different ways. In some cases, women relied on the Written Policy to challenge harassers’ conduct; others engaged in self-help only when the policy had failed to provide any relief. For still others, the Written Policy was utterly irrelevant in their confrontations with harassers. Several women reported relying on the Written Policy to “educate” their harassers about the limits of appropriate behavior in the workplace. Supervisors sometimes reinforced these efforts through informal discussions with the harassers. [O]thers confronted their harassers only as a last resort when the grievance procedure had failed to solve their problems. In these cases, employees told harassers that the behavior had to stop, even without the support of managers or supervisors. Most women in the study did not complain to supervisors about their experiences with unwanted sexual attention at work. This decision was sometimes based on a judgment that the conduct was not sufficiently serious to merit a complaint. Other women, however, experienced incidents that were disruptive and distracting to their work performance and would have liked some assistance in resolving the problem. When considering whether to make a complaint, however, they anticipated their supervisors’ response. Many believed that this response would be adversarial and hostile to their complaints; some believed that their supervisors would be ineffectual in solving the problem, while others were concerned about retaliation, so they decided not to complain. Thus, they acted as their own gatekeepers, incorporating the adversarial response into their own evaluation of the situation. When the harassing conduct was neither severe nor harmful, women were not inclined to complain about the behavior. Infrequent jokes, occasional physical contact, and sexist comments were mostly shrugged off or ignored. Other women in the study, however, might have invoked the grievance procedure but were apprehensive about the reception they might get if they did. These women expected supervisors to tell them to handle the situation themselves or to accuse them of leading on their harassers. [W]omen expected that if they made complaints, supervisors would adopt an adversarial posture and interrogate the complainant’s behavior. Such challenges to their credibility were better avoided.

Social Practice Shaping Legal Consciousness Management and employees enacted a very different sexual harassment procedure than the one enshrined in the Written Policy. While the Written Policy was designed to offer employees expansive protection from the indignities of harassing behaviors, the management practices enforcing it significantly shrank that protection. And as a result, women’s understanding of sexual harassment reflected the adversarial nature of the complaint process, shrinking to include only those behaviors they could prove. For these women, supervisors did not need to dismiss complaints for failing to



violate the policy. Women’s narrow interpretation of sexual harassment accomplished this task by censoring complaints before they ever formed. Women incorporated their skepticism of the grievance procedure into their definitions of sexual harassment itself. To several women in the study, an incident could not be characterized as sexual harassment without evidence that it had occurred and that it was a serious affront to the woman’s working life. If the incident could not be documented or if it did not meet some external standard of offensiveness, then women argued that it was not sexual harassment and would not meet the threshold of behavior required to file a complaint. Lily, for example, distinguished between blatant forms of sexual harassment, which included unwanted physical contact and explicitly derogatory remarks, and the subtle kind of thing, where you’re not really sure. Not being really sure, not having anything to grab onto—look, here’s the definitive proof. I mean, all the doubting—it’s gray; it’s too gray. So I think that must happen on many occasions that you suspect motives, but you have no concrete evidence to support it, so then you doubt yourself.

Even though her harasser repeatedly asked her to go to bed with him, Lily was not sure his behavior constituted harassment because she could not prove to a third party that he had made these advances or that they were unwelcome. These evidentiary concerns created ambiguity in women’s understandings of the standards for sexual harassment. A survey respondent was repeatedly propositioned by some employees—both supervisors and co-workers—but ignored and avoided her harassers. She did not complain largely out of confusion about what constituted harassment—a confusion that was tied to her anxiety about proving any allegations she might make: “Mainly, it is hard to define the boundaries of what is considered harassment and what is not. E.g., is staring at my chest repeatedly harassment? If so, how can I prove he was doing it? Will I be believed? What if he is friends with the management.” To this woman, the confusing rules surrounding sexual harassment were aggravated by the power imbalances reproduced by a grievance procedure administered by managers. The Written Policy articulated a set of legal schema that broadly defined sexual harassment and that prescribed a mechanism ostensibly protecting employee rights. Yet in the shadow of the practices implementing the Written Policy, women’s definitions of sexual harassment narrowed considerably. And to these women, the Written Policy became an instrument through which the University protected the powerful rather than a process for enforcing their rights. Thus, the employees and supervisors enacted a Written Policy whose meaning in practice was very different than its symbolic purpose.

Discussion [S]tudies showing how constitutive theories of law actually work should also embrace not just meaning but also emphasize the importance of understanding legal consciousness as a form of social and cultural practice. Judicial opinions and EEOC


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regulations articulate rights, but those rights depend heavily on the initiative of ordinary individuals to invoke them—not just in the courtroom, but also in the context of their daily lives. This initiative, in turn, depends on the availability and the relevance of legal schema to people confronting problems in the workplace. Beyond these commonplace understandings, the meaning of rights also depends on what people do. They may invoke rights to make demands and to seek the intervention of third parties to resolve disputes, and as this study demonstrates, the context of those practices shapes the meaning of those rights. But in analyzing legal consciousness as a social practice, it is also worth noting the times when rights are ignored. When employees reject a grievance procedure, when they say that the policy is not relevant to their dispute, when they let their rights remain idle, they diminish the power of law to constitute their everyday relationships at work.


Mobilizing the Law in China “Informed Disenchantment” and the Development of Legal Consciousness Mary E . Gall agher

Reading about China in the media one finds a remarkable number of articles attesting to the fact that “rights consciousness” or “legal consciousness” is rising among Chinese citizens of all types, urban and rural, male and female, rich and poor. In China as well, in government documents, in newspaper reports, and in official interviews with Communist Party officials, one hears and sees a familiar refrain: “the people’s legal consciousness” (falü yishi) is growing stronger by the day and is partly responsible for the sharp rise in litigation, petitioning, and protests and demonstrations (Chen 2004). Given that increased social attention and reliance on the law was at least one of the intended goals of the Chinese government’s “rule of law” project, this change is usually heralded as a positive one. A linear (low to high) conception of legal consciousness has become the shorthand by which scholars and observers interpret and evaluate the new emphasis on rule of law in Chinese society. There is a tendency to conflate the separate but related measures of legal knowledge/awareness and tendency to use the courts with legal consciousness. If use of the courts or awareness of the law is deemed insufficient, Chinese citizens are deemed to have “low” or “weak” legal consciousness. I do not contest that the legal system is more important in China today than it was 25 years ago, at the outset of the reform period. Nor do I contest the phenomenon of a growing tendency to frame demands and grievances in rights-claiming, legalistic language. The analysis presented here is not in a contrarian spirit but rather is an attempt to delve more deeply into this idea of “rising legal consciousness,” with critical emphasis both on the term itself and the notion of a linear “rise.” I argue that changes in legal consciousness occur in two separate dimensions: changes in one’s feelings of efficacy and competency vis-à-vis the law, and changes in one’s perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” [I]n the population examined here, the process of legal mobilization (that is, actual engagement with the legal system) changes an individual’s legal consciousness in complicated ways. In this study I observe positive changes in feelings of individual Abridged from Law & Society Review 40, no. 4 (2006): 783–816.



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efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. Many plaintiffs spoke of deep disappointment; the law did not work in the ways they had expected and hoped. The complicated end result of legal mobilization, what I call here informed disenchantment, contains elements of raised legal consciousness in terms of knowledge about the law and feelings of greater efficacy and understanding of legal strategy with a concomitant sense of disappointment and frustration about inequities and dysfunctional aspects of China’s developing legal system. While plaintiffs’ attitudes and evaluations of the legal system were almost always uniformly negative and critical after the dispute had ended, they were surprisingly resilient when it came to actual and expected future behavior. The vast majority of the plaintiffs pledged that they would sue again for a similar problem; indeed, a small but not insignificant number of disputants had already moved on from their first dispute to other legal battles. A sense of disenchantment did not lead to despondency or resignation; plaintiffs put more emphasis on the educative aspects of legal mobilization, vowing to return to the law again, better prepared and less naïve, and also prepared to transmit their lessons to friends, relatives, and coworkers with similar grievances. The analysis presented here is based on 16 months of field research in Shanghai, at the largest legal aid center for employment law in the country. This legal aid center was under the jurisdiction of a well-known Shanghai law school, and as a visiting scholar at the university I was given full access to the center. As a frequent visitor to the center and as a sometime translator, interpreter, and English teacher to the student volunteers and full-time staff, I was able to observe how legal aid functioned on a daily basis, how people came to the center in search of help, and how the volunteers and staff interacted with those who came in search of legal assistance. I also observed several court trials involving legal aid plaintiffs and interviewed the volunteers and staff dozens of times. This “participant-observation” method was combined with in-depth interviewing of 50 randomly selected plaintiffs from the center’s first two years of operation. These plaintiffs were interviewed jointly by me and a student research assistant who was also a volunteer at the center. We also compiled and analyzed the written case materials, including arbitration decisions, court decisions, and other relevant evidence and testimony about each case. The interviews focused on three different themes: how the dispute began and transpired (in short, the plaintiff told his/her story of the dispute); how the plaintiff experienced and evaluated the process of dispute resolution, including mediation, arbitration, litigation, and the actors involved, including trade union officers, enterprise managers, arbitrators, lawyers, court officials, and judges. Finally, we asked about the plaintiff ’s post-dispute situation. We explored how the process of legal mobilization changed his or her postdispute attitudes and behavior in regards to the legal system generally and to employment relations more specifically.



Pushing the Rule of Law The legal consciousness of Chinese citizens is profoundly shaped by the heavy hand of the state in the creation of new legal institutions that are at least partially intended to buttress the state’s legitimacy. The invocation of high expectations and the use of state-sanctioned slogans to justify their behavior on the part of these plaintiffs is more than naïveté or ignorance regarding how the system actually works. These expectations are also invoked strategically as part of a legitimating discourse for daring behavior. [T]he state continues to resort to institutions of the socialist era to inculcate citizens with the spirit of “rule of law.” The most important methods of policy change in this regard are the political campaign and the dissemination of state-sanctioned legal news and information through the official media. [T]he Chinese state has also pushed rule of law by cutting back and shrinking the role of more traditional methods of appeal and grievance resolution. This is particularly the case for petitioning, in which an aggrieved citizen presents his or her case directly to the relevant government offices or, if these offices are unresponsive, to higher offices in government, up to and including the petitioning of top leaders in Beijing. In November 1985, the Standing Committee of the National People’s Congress passed a resolution to initiate a new stage of rule-of-law development, that of “acquainting citizens with basic knowledge of the law.” This resolution marked the beginning of the “law dissemination campaign” (pufa yundong). Campaign-like dissemination of laws and rights has effects on the development of legal consciousness. It can supply a shallow but useful resource of expectations about law and the legal system. The slogan used in the National People’s Congress (NPC) resolution and in much of the media’s coverage, “to use law as a weapon,” even invites action and participation. The law is something that can be used; it is not only a thing to be followed or feared. Many legal aid plaintiffs, when asked why they decided to sue their employers, even quoted back this slogan to justify their daring behavior: “The law is supposed to be my weapon, that’s why I sued,” shrugged one older worker. Another framed it as part of her own responsibility and civic duty: “We are supposed to believe in the law, and so I went through the legal channels.” Campaigns and their simplistic slogans provide a strategic justification for legal action without much substantive legal knowledge or experience. The campaign to disseminate legal knowledge has created more legally demanding citizens who are armed with the assurance that their recourse to the law has been approved and sanctioned by the state. Media coverage of legal news, legal information, and specific lawsuits has been an important facet of the “law dissemination campaign.” An overwhelming number of the plaintiffs reported hearing about the legal aid center studied here from the media. Unfortunately, the way in which the media presents cases not only creates high expectations among readers, but it also does not accurately describe reality. Some cases that


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receive significant attention, for example when featured on a television program, can then go on to influence and mobilize many other workers who face the same or similar problems with their employer. After reading of people in similar plights, workers would be hopeful that they too could receive help and a resolution. The style of the articles and the appearance of a just resolution would often create unrealistic expectations.

Legal Consciousness and Petitioning [R]edirection to the legal system is one part of the state’s strategy to build the rule of law and insert space between the government and social actors, particularly social actors such as state-enterprise workers who have historically been quite close to the government and treated, according to socialist ideology, as the “ruling class.” The redirection of petitioners and the legal education campaigns unleashed in the media are both part of a radical transformation of the Chinese state and how it relates to its citizens. The state’s rule-of-law project reworks ideological discourse away from emphasis on socialist equality and collectivism and toward ideals more suited to capitalist accumulation, including individual contract and exchange, efficiency, and limited government responsibility for social welfare. Directing labor disputes to the legal system emphasizes this shift to contract and exchange, giving the appearance of a dispute between two parties, a worker and a firm. This often obfuscates the history of many disputes that stem from the privatization of state firms and usually involve not only the firm itself but also local government bureaus and officials. There are also procedural effects of switching to the legal process. Movement through the legal system sets the worker further from the state as protector and closer to the ideal of state as unbiased arbitrator/judge. The dispute is processed in such a way as to further distance the individual case from the local government, and it will close off many possible openings of entreaty available to the worker in a petitioning claim. Finally, the law’s emphasis on evidence is in contrast to petitioning claims, which do not rise and fall on proof but on the moral claims and charges invoked and the intensity with which they are expressed. Pushing the rule of law shapes the way claims are made—more emphasis on contracts, less on moral obligations of firms— and also opens up the distance between the government and workers. In these ways, rule of law fits nicely with some of the goals of the Chinese government, including the remaking of citizens to fit the market economy and reduced expectations on the government and workplaces for social welfare.

Producing Informed Disenchantment Informed disenchantment of these legal aid plaintiffs is captured in three separate realms of the legal mobilization process: the acquisition of strategic knowledge, feelings of inclusion into a social network, and the post-dispute impulse to become a “little expert”—to transmit one’s knowledge and experiences to friends and family.



While many plaintiffs were frustrated and angry, disappointed with many aspects of the process, nearly all respondents emerged from the process with a much stronger sense of their legal rights and a more strategic and realistic view of the legal process. Acquiring Strategic Knowledge The acquisition of new and deeper knowledge is a key aspect of the legal mobilization process, building increased feelings of efficacy, competency, and disappointment that the law does not always work as it should. In one plaintiff ’s interpretation, legal aid provided the “words” that the plaintiff needed to know in order to speak in a legal venue. It provided a new vocabulary. For most respondents, the most important aspects of their newly attained knowledge were in the realm of understanding laws and regulations, understanding legal procedure, and understanding how to attain and use evidence. Understanding what constitutes evidence and how to collect it are some of the thorniest problems for an employee, since the employer often controls access to nearly all the relevant evidence. Yao, a machine operator from an old sewing machine factory, with a folder of petitioning letters six inches thick, reported that he would not sue again. It just took too much time and energy, with no successful implementation after two years. However, he also said that he now regularly gives advice to his friends and fellow colleagues. “I put a lot of emphasis on making sure that they know how to get the necessary proof and evidence.” Like many plaintiffs, he also continued to have hope that something will influence his suit, now at the Shanghai High Court, for a final appeal, including the recent addition of a human rights protection clause in the Chinese Constitution. A young manager in a large multinational supermarket in Shanghai who sued unsuccessfully for overtime also reported that he would not sue again; it was too much time and not worth it. But then he paused and said, “[but] if I had enough evidence, I might try again. I’m more careful about that sort of stuff now. [At his new employer] I’m always looking for things that I might need, just in case [of another lawsuit].” Plaintiffs also gained other kinds of necessary knowledge that lie outside the immediate realm of the law but are equally important. This includes understanding the strategies that judges employ to encourage mediation and the strategies that employers will use to pressure workers to give up or accept less. This knowledge extends to the ability to know when they are being fairly treated, when they are being coerced or deliberately intimidated, and when the process is thwarted by corruption and close connections between officials and employers. This knowledge is extremely important during the settlement phase, when arbitrators and judges have strong incentives to push for a mediated settlement that avoids a ruling. A mediated settlement boosts the mediation rate of the judge/arbitrator, resulting in career bonuses and the possibility of promotion. Companies often also have a strong incentive to mediate to avoid copycat suits with other employees. Legal mobilization and the knowledge and strategy it can impart can also contribute to a new sense of disillusionment and disappointment, a realization that the


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law is not all it is cracked up to be. To express these feelings, plaintiffs often turned the state’s slogans around; most notably, the vibrant slogan “to use the law as your weapon” was reworked into a condemnation of the law’s inability to protect their rights. Chai, [a] pregnant teacher,  .  .  . found it hard to find a new job in education because media coverage had exposed her as a troublesome employee. She noted, “I thought I could take this weapon and use it to protect myself, but in the end not only did it not protect me, it injured me.” A healthy sense of cynicism and disappointment with the law was common among the plaintiffs as they went through the legal process and discovered it to be more complicated than they expected and more advantageous to employers with their wealth of legal experience, their ability to hire skilled lawyers, and their importance as employers and investors in the local economy. The vast majority of plaintiffs reported, however, that they would sue again if they encountered another employment dispute, and for many this extended to other types of disputes as well. Eighty percent of all plaintiffs reported that they would sue again if they encountered another employment dispute. This tendency was not significantly affected by the outcome of the case—those who lost were almost as likely to want to sue again as those who won. Finding Social Networks of Support Workers who sue remain concerned about their social status and their public reputation and often will try to hide the fact of their lawsuit from their neighbors, friends, and even close relatives. This reticence speaks to the continuing belief as reported by Du, an old worker who was left with nothing when his state-owned enterprise was acquired, that “only bad people file suits.” Others are embarrassed that they were fired or laid off, believing that it will seem to everyone else that they must have done something wrong. The frequency with which these sentiments are expressed indicates the level of social and psychological barriers to legal mobilization. Legal mobilization through legal aid can mitigate plaintiffs’ feelings of isolation and embarrassment by providing a social network and a fixed space through which plaintiffs can interact with each other, student volunteers, and legal aid staff. Many plaintiffs reported hearing about a new strategy or a relevant regulation while waiting in line at the legal aid center. Some workers find that their cases are similar, form a relationship, and help each other with their suits. Others realize by listening to the complaints and problems of those around them that their own grievance is part of a broader systematic trend. This reduces feelings of self-blame and embarrassment and can embolden plaintiffs to link their problems to broader political challenges. Inclusion into a space and network such as legal aid can be an empowering experience for people who are otherwise discouraged, angry, and often deeply depressed. Li, [an] injured engineer, believed he “went from being someone with a future to something that wasn’t even human.” For people who have been laid off, summarily dismissed, or otherwise pushed out of their workplace, legal aid becomes the “turning point” from an experience in passive humiliation to an aggressive battle for rights and economic security.



It was this transformative experience of entering into a network that encouraged plaintiffs to shake off some of the traditionally negative ideas about lawsuits. Inclusion combined with increased competency vis-à-vis the law inspired most plaintiffs to turn their lawsuit into a learning experience that not only helped them and their case but could also be transmitted to others, including family members, friends, and fellow workers. Post-Dispute Activism: Becoming a Little Expert This new sense of empowerment among plaintiffs (even while remaining deeply angry with the results of the process) leads many into post-dispute roles as “little experts.” Their newfound expertise in labor law leads many to give advice, copy materials, introduce friends to legal aid, and even serve as witnesses or citizen representatives in the cases of other aggrieved workers. As with the propensity to sue again, post-dispute little experts are the norm, not the exception. More than three-quarters of the plaintiffs reported that in the post-dispute period they advised friends and family, introduced others to legal aid, and in some cases served as witnesses for other aggrieved workers. A female forklift operator who reported crying all the time during her lawsuit now assists with her relative’s own worker compensation case and coined the phrase I use in this article: “My husband’s brother-in-law now has a worker compensation case, I helped him with the case at first and then introduced him to the center. Now everyone comes to consult me, I’ve become a little expert.”

Conclusion: Legal Consciousness in the Chinese Context Informed disenchantment as a by-product of legal mobilization conveys the sense of empowerment coupled with increased skepticism that many plaintiffs described after their cases had ended. Its emphasis on plaintiffs’ negative evaluation of the legal system is a corrective to a tendency to cast the development of legal consciousness in China as a unidirectional process of moving from low to high consciousness. Engagement with the law may leave one with a better sense of one’s rights but with reduced belief in the law as a capable protector of those rights. The emphasis on disenchantment does not, however, indicate that the Chinese state’s attempt to direct people toward the law is failing. Even older state sector workers who enter the process with their problems framed as a moral battle against unfair reforms leave the process intending to sue again, but to do it better by adopting the new rules of the game with a new emphasis on contracts, evidence, and the like. Legal mobilization by Chinese workers is an ongoing act of engagement with and resistance to the law. Their decision to self-select into the legal process reflects their initial sense of selfconfidence that the law game can be won. Their sense of disenchantment as they learn how the process might be biased against them often spurs new strategic behavior to counteract these disadvantages: for example, courting public opinion through the media or looking for a sympathetic government official at the petitioning offices.


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And finally, as shown earlier, their persistence and self-confidence is usually not shaken by defeat; most intend to sue again if necessary, and many feel well-prepared for future legal battles. The contradictory nature of ordinary citizens’ legal consciousness also improves our understanding of how legality itself is shaped from above by a state-led rule-oflaw project and from below by citizens who make use of these new institutions. This movement from high expectations to more realistic disappointment is in large part produced by the state’s own attempts to push the rule of law and to disseminate legal knowledge to citizens. Citizens’ expectations about the law and the legal process are shaped by a public campaign to propagate law and rights and state-controlled media coverage of legal disputes that favors good news and happy endings over more realistic treatment of a difficult and challenging process. As one plaintiff noted, “[o]ur hopes are higher, so our disappointment is all the deeper.” So far this disappointment has not resulted in despondency or even rejection of the legal system for other modes of resolution; these plaintiffs persevere. This bottom-up pressure to build the rule of law and to improve it is one more indication that legal consciousness in China is developing, moving not from low to high but from naïve to critical, from a vague sense of rights to a detailed list of grievances. By promising to use the law again, they contribute to the “durability” of an evolving social institution (Ewick 2003: 285). By remaining attentive to the flaws of the legal system, these newly minted little experts challenge the law to live up to the state’s own professed standards of fairness and justice.

Part V

Law as an Emergent Institution

The collapse of the Soviet Union in 1989 spurred numerous post-Communist states to create new constitutions, new political systems, new economies, and new cultural values—a massive laboratory for what law could accomplish (Murrell 2001). The collapse of apartheid in South Africa ushered in a similarly radical state of transition. When we look at law as an “emergent” institution, we often have such upheavals in mind. But very often we assume that law possesses great force and that the extension of law is a form of progress. These assumptions reflect ideas from the classic early work on law from a sociological perspective. Nineteenth-century scholars attempted to trace the origins of law and legal order as part of a single, homogenous process. These scholars commonly offered simplistic, progressive narratives that emphasized the growth from informality to formality, violence to legitimate force, and simplicity to complexity. Our contemporary law and society imagination demands a more nuanced account of the paths of law. The current generation of scholars have had ample opportunity to observe law competing for authority and emerging in a wide variety of settings. Most scholars would agree that there have been monumental changes in political, economic, and social organization the past thirty years. We may not so easily agree on the significance of those changes for law. Economic development, technological change, political upheaval, and cultural conflict all warn us against slipping too easily into a one-dimensional progressive story, one that would view post-1945 developments as an inexorable rise (uneven but inevitable) for universal human rights and international law. The examination of law in society calls us to think about something more than “progress” along a continuum, but of struggles with no preordained outcome or cycles between possible outcomes. While law is clearly an important source of authority for consequential decisions, it is not alone in the contemporary world. Science, medicine, and religion, among others, compete with state law as sources of authoritative expertise. When we examine settings in which law comes into contact with such other institutions, we ask questions about the origins and extent of law’s power. When we see “the law” being challenged, reshaped, and redefined, we cannot avoid questioning our assumption that we know what “the law” is. In the national perspective, it is familiar to see law as “the state” would have us understand it. The sense of law as “emergent” in global settings challenges us further. Over the past quarter-century, transnational flows of people, money, and ideas have become 261


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important settings for legal development in expanding global institutions. A significant amount of energy is being invested just in keeping up with developments and exploring their possible implications (e.g., Braithwaite and Drahos 2000), and just as quickly those efforts become outdated. International law has been in circulation for centuries. Yet, we may be tempted into thinking that something is changing for law in the global setting. The selections in this section ask us to examine the variety of venues in and means by which law emerges and what this emergence means for the extent of law’s authority. Echoing work that focuses on compliance by organizations, the first selections in this section suggest how the medical sector in complex economies can powerfully resist efforts to insert law as a force. The next selections ask us to think skeptically about a triumphal story of the place of law in large-scale national changes. The pace of social change could affect the possibilities for law to make a difference. If people, organizations, and states construct law out of the fabric of society, should we think that law has any greater power when that fabric is torn in two and stitched together in new ways? The final selections revisit questions about emergent law at a global level. Globalization creates new settings for law, but it doesn’t eliminate national or local communities. Law comes into new conversations, which may create new patterns of power and possibility. Underlying each of the sets of articles in this section, we can ask: Whether we look near or far, local or global, are there ways to describe the common paths of law?


Competing Institutions Law, Medicine, and Family in Neonatal Intensive Care Carol A. Heimer

Sociolegal scholars have long acknowledged that the influence of law varies from one setting to another and that other normative systems also shape human action. Sociolegal scholars have also investigated the impact of law in organizations, where participants face a multitude of normative pressures arising from overlapping institutional jurisdictions. To clarify when the law will be especially influential and when rival normative systems will instead have more impact, we now need to look closely at how the law and other institutions interact in organizational contexts. This article uses the competition between legal, medical, and familial institutions in neonatal intensive care units (NICUs) to elaborate a theory of institutional competition and the varying influence of law in organizational settings. Institutions (and the portions of an organization’s environment that would support them) should .  . . be conceived as competing for the chance to influence the organization. How  .  .  . is such an institutional competition resolved? In the example examined here, when do laws have a substantial effect on what goes on in neonatal intensive care units and when do institutionalized practices arising from family life or the medical profession instead have more influence? I show that institutions have their influence by working through internal organizational processes. Only when the routines, ceremonies, or practices of familial or legal institutions are insinuated into the machinery of NICU decisionmaking can they have any substantial effect. Thus for a law to shape the actions of NICU doctors or nurses, legal actors must learn how to make legal issues into organizational problems, introduce choice points that require action, and alter the possibility space of eligible solutions by mandating consideration of some alternatives and prohibiting consideration of others. The article thus proposes a theory of variations in the penetration of laws into organizational settings, clarifying what it is about the laws themselves, the organizational settings they purport to govern, and the behavior of legal actors that might predict when laws would alter the character of interactions and when they would have only relatively superficial effects.

Abridged from Law & Society Review 33, no. 1 (1999): 17–66.



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The Theoretical Problem: Multiple Institutions and Impenetrable Organizations Among the “new institutionalists” in sociology, institutions are conceived primarily as solutions to problems of legitimacy. By their argument, much of what transpires in organizations occurs not because it increases efficiency or reduces transaction costs, but because it confers legitimacy and smooths interactions among organizations. Formal structures and organizational routines are, in this view, more important for creating the appearance of rational decisionmaking than for actually facilitating rationality. How deeply the adoption of any institutionalized policy shapes organizational activity is another matter. In theoretical statements and empirical studies, institutionalists have directed attention to the state’s fundamental role in the process of institutionalization. [L]aw is treated as a master institution. Law has coercive qualities that other institutions lack. Particular laws and legal actors are important common elements in the environments of organizations in the same field. But the state is not the only source of pressure for institutionalization, and multiple institutions may compete for jurisdiction in a single setting. And sometimes institutions that might be expected to shape outcomes or increase the legitimacy of an organization in fact have very little effect and are not even invoked for symbolic purposes. The existence of competing institutions thus poses a series of puzzles for institutionalists. Is legitimacy undermined and interaction across organizational boundaries hindered by ambiguity about which institution governs organizational activities? And how is a contest among institutions resolved? What actually happens when a new regulation requires physicians to change the way they practice? How does the interaction between intra-organizational processes and extra-organizational forces result in the triumph of one set of institutionalized practices and the subjection or demise of another? The institutionalist argument challenges assumptions that organizations act “rationally” and that the adoption of institutionalized practices leads in any linear fashion to the modification of core organizational processes. A second attack on assumptions about the rationality of organizational processes comes from those behavioral decision theorists . . . who stress the almost random character of decisionmaking. What decision gets made, they argue, depends on who participates in decisionmaking, which problems seem particularly salient when a decision is being made, what solutions are being championed by participants, and what occasion has brought people together to make a decision. But participants may have other things to attend to, problems can be displaced by still more pressing matters, solutions can be attractive for reasons other than their fit with particular problems, and decision points may arrive at inopportune moments. We should not be surprised, then, that organizational decision processes rarely seems “rational.” I contend that institutionalists and behavioral decision theorists can each do much to answer the questions raised by the other’s framework. To understand how and why some institutionalized practices are adopted while competing practices are spurned or ignored, I draw on examples from a study of neonatal intensive care, a setting in which activity is influenced simultaneously by the state and legal system, the medical



community, and the traditions of family life. The success of an institution depends on the interests and power of participants who might benefit by adopting its practices, routines, or rituals. In addition to shoring up organizational legitimacy, institutions provide cognitive, cultural, and power resources that are important in organizational decisionmaking. Conceiving institutions this way demonstrates how the new institutionalism and behavioral decision theory complement one another. This conception of institutions also elucidates the role of law by suggesting that legal institutions can only trump other institutions when the legal cards are played.

The Setting, Research Methods, and Evidence Neonatal intensive care units (NICUs), tertiary centers serving a network of other hospitals, provide care for critically ill newborns. Any child born before 36 weeks of gestation is classified as premature, and many NICU babies are simply premature. Others need treatment for congenital anomalies or accidents of gestation or birth. State-of-the-art medical care requires orchestration of the activities of a bewildering array of staff members[:] attending physicians  .  .  . residents  .  .  . NICU bedside nurses . . . social workers; unit clerks; phlebotomists; X-ray and ultrasound technicians; respiratory, speech, and physical therapists; developmental medical psychologists; nutritionists; discharge planners; chaplains; volunteers . . . ; medical consultants . . . ; quality assurance specialists; and the administrative and legal staff of the hospital. The activity of parents is also carefully orchestrated. Parents receive information about who will be caring for their babies, who can visit and at what times, how to scrub and gown, which phones they can use, and even where they can converse with other parents. Even routine infant care is not routine in NICUs, and parents are told when and how they can feed, bathe, and dress their babies and, in the most critical cases, when they can touch them. Parents also participate in some of the discussions about their infant’s treatment. This article draws on research conducted in the NICUs of two teaching hospitals in metropolitan Illinois in the late 1980s and early 1990s. One hospital is located in a central city and serves a large minority and indigent clientele, while the second is in a residential suburb and draws patients primarily from a white, middle-class population. About a year was spent doing fieldwork in each unit, including observing the daily routine of the two units and attending staff meetings and meetings between staff and parents. I also draw on notes from informal interviews . . . with a variety of staff members. Information about parents and infants was gleaned from two sources: the medical records of a year’s worth of admissions at each hospital . . . and interviews with a sample of parents.

Competitions among Legal, Familial, and Medical Institutions Although an NICU’s environment is large and diverse, the goodwill of patients’ families, governmental bodies, and the medical community  .  .  . is essential to the


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functioning of NICUs. [M]embers of each group  .  .  . believe it is their right to participate in NICU decisionmaking. Parents stake their claim on their right to family autonomy, privacy, and freedom of religion, and on their ultimate responsibility for the child. Physician claims are based on their traditional rights to make treatment decisions, on possession of arcane medical knowledge, and on experience treating other infants with similar problems. And the state . . . argues that its interest in the lives and health of its citizens takes precedence over parents’ right to control their own children. With three groups claiming the right to decide, bitter disputes can arise. Although the most dramatic disputes concern decisions about treatment, custody, or withdrawal of life support in individuals cases, in fact rights to make or participate in decisions are contested at two different levels. They can be disputes about particular decisions or about procedures. How Institutions Shape NICU Decisions Two quite different stories can be told about the role of the medical community, law, families, and hospital routines in NICU decisionmaking. Following the neoinstitutionalists, . . . [w]e might expect to find the creation of legally or professionally mandated positions and procedures with largely ceremonial purposes and a disjuncture between official procedures and actual practices. Drawing on Cohen et al.’s (1972) work comparing decision processes to garbage cans, one could tell a quite different story about the influence of medical, legal, and familial institutions in decisionmaking about critical ill newborns. What decisions are made, these behavioral decision theorists contend, depends on the mix of elements in the garbage can. What happens is influenced by which possible participants are present, what problems they are concerned about, what solutions have been identified as plausible or interesting, and what occasions have been defined as choice opportunities. Instead of emphasizing the unpredictability of the contents, I stress the patterns of access to the garbage can, and hence the greater likelihood of some outcomes compared with others. My argument is that access can be restricted informally, through timing, physical location, and institutional rules of appropriateness, as well as formally through hierarchy and bureaucratic arrangements. [I]nsofar as parents and the state have become more adept at influencing NICU decisionmaking, it is because they have learned how to dump their problems, solutions, participants, and decisionmaking occasions into the hospital’s can. Securing Real Participation Rights Decisions are much influenced by who the participants are, and familial, legal, and medical institutions strongly shape participation. Medical hierarchies give physicians participation rights that physical therapists lack; family arrangements make it likely that mothers will be present more often than fathers; and legal rules give standing to some but deny it to others.



Legal tools such as consent procedures would reinforce families’ rights to participate and staff obligations to consult them. But participation is shaped both by participation rights and by being present at key moments, and family members are not always there when medical decisions have to be made. Who participates in NICU decisionmaking about critically ill infants . . . depends not just on who has a right to participate, but also on who must be consulted and who is on the grounds at the time a decision is made. Much institutional development is focused on rights to participate and obligations to consult. Parents have clear legal rights to make many decisions about their children. In many situations others are required to seek parental consent before doing things to or with children. Similarly the state’s right to intervene in cases of abuse or neglect is clearly established in the law. But such laws are insensitive to the realities of organizational decisionmaking. Institutional development aimed at increasing the participation of outsiders is more likely to succeed if the focus is expanded beyond simple rights to participate. Identifying Problems Medical staff have an advantage in putting problems into the NICU garbage can because their word that some condition is a problem is authoritative. Definitions of problems are largely shaped by medical institutions such as rounds and medical records. Though hospital staff have several direct methods for identifying problems, families tend to be restricted to indirect methods and staff members often resist their attempts to define problems. Hospital staff are gatekeepers. No garbage comes into the can but through them. Despite their theoretical right to intervene, state agents are rarely present to place items on the NICU agenda. Proposing Solutions Solutions have no necessary one-to-one correspondence with problems. Medical personnel are not all equally credible supporters of solutions. NICU nurses complain bitterly that physicians do not take nursing views seriously despite nurses’ sustained contact with patients and that nurses are required to accept physician authority even when they believe physicians are wrong. The larger divide lies between medical and lay people, though. When the problems are medical ones, people without certified medical expertise are at a disadvantage. Even when they know that solutions are medically legitimate in other hospitals, parents typically will be unable to persuade NICU personnel of the appropriateness of their proposed matches between solutions and medical problems. But parents may have compensating advantages. Pediatricians often ask if the child “looks sick,” understanding that parents may have superior baseline data about how the child ordinarily looks and behaves. In the NICU, parents who have been especially attentive in tracking in their child may be able to tell what is working and what is not. But even here the influence of the medical community is strong. Understanding this,

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families sometimes added solutions to the agenda by bringing other medical practitioners into the discussion. The state has played a large role in financing medical care for the indigent, but a smaller role in choosing among solutions. The state’s role . . . consists chiefly in facilitating some solutions by financing them and prohibiting others [e.g., euthanasia] by making them illegal. Establishing Choice Opportunities Decisions are made when problems and solutions are attached to one another at choice opportunities. Though they often are described by medical personnel as arising “naturally” from changes in the infant’s medical condition, in fact such medical occasions must be identified by staff and socially constructed as choice points. Though medical problems play a substantial role in defining choice points, choice points often can be accelerated or delayed. Attempts to get a baby home for the holidays, for instance, offer clear evidence that medically defined choice opportunities are not carved in stone. The state (or, often, the states) has mainly acted to postpone and review medical decisions. In other fields, the courts insist on provisions to ensure that court decisions are not moot. Such arrangements are more difficult to envision in medical care. Alternatively, courts can adjust to medical timetables. To accommodate medical timetables, courts now sometimes convene on weekends or in the middle of the night,  .  .  . meet in hospital conference rooms rather than courtrooms, and supply hotline numbers for medical use. Although they may not analyze their actions this way, dissatisfied parents are adding new choice points when they consult the hospital ombudsman, ask for a second opinion, or threaten to transfer their child. Although families and the state have some capacity to manipulate choice points, medical staff retain most of the control. Insiders, Repeat-Player Outsiders, and Consummate Novices Unless they shape patterns of participation, the process by which problems are put on the agenda, the way solutions are proposed, and the social construction of decision points, newly adopted institutionalized practices will create symbolic rather than instrumental change. Because state and medical actors both tend to be repeat players, information from past experience can shape future actions and medical caregivers and state agents can guide the actions of their colleagues. Even if they have learned by bitter experience that influencing medical decisions requires more than insisting on state hegemony, state actors at least have sufficient staying power gradually to mold some definitions of problems, solutions, and choice opportunities. [F]amilies are almost always consummate novices, using unfamiliar decision tools on unfamiliar medical problems. Few families accumulate sufficient experience to guide their own future actions. Because they tend to function as relatively isolated family units, parents only occasionally read about the NICU experiences of other



families or draw on information accumulated by support groups or religious bodies. The influence of the family sphere has therefore mostly been symbolic. Individual families may be able to influence decisions about their own child, but such interventions typically have not led to the institutionalization of family-friendly policies. Further, the isolation of families from one another makes it difficult for them to pose any substantial threat to the legitimacy of a hospital or NICU. A family can refuse consent, but physicians may treat their child anyway. Their agony will usually be a private misery that creates only a temporary and quite local problem for the NICU. Not surprisingly, then, familial institutions seem to be faring least well in the institutional competition between medicine, law, and the family.

Variations among Laws: Medicine in the Shadow of the Law or Law in the Shadow of Medicine? Legal institutions are specifically intended to make some acts legitimate and others illegitimate. Because law is so strongly associated with legitimacy, the neoinstitutionalists’ position suggests, legally based institutionalized practices should have a built-in advantage in competitions with other institutions. But people and organizations have other objectives as well (and in any case a hospital’s legitimacy comes more from low mortality rates than from obeying the law). Some of the variability in the influence of legal institutions arises because legal rules are inadequate guides for medical decisionmaking. Although in theory in American society law trumps other institutions, in fact some laws have substantial and others only minor effects. Such variability is crucial to our understanding of the success or failure of institutionalization, and I suggest that we can explain the variable success of law by looking at how law is articulated with intra-organizational decision processes. Institutional imperialism—here the imperialism of law—works best when imperialists learn enough about the natives to know what is to be decided, when it will be decided, what the contending solutions are, and how to secure their own right to participate. Civil Law—Medical Staff Define Legal Issues as Problems Ordinary civil law shapes the practice of medicine largely through the threat of medical malpractice suits. Under the law of torts, medical personnel and organizations are accountable for harms they cause to others and insurers sell expensive policies to cover losses from malpractice suits brought against physicians, other healthcare providers, and hospitals. In medical malpractice suits, the fundamental question is whether the health professional could have prevented or limited harm. In infant intensive care, causal relationships are difficult to establish, with ambiguity both about whether substandard medical care caused or failed to limit harm and whether that substandard care was provided by NICU staff or other healthcare professionals (for example, in prenatal care or delivery).


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Tort law is effective because intermediate actors translate the law into organizational routines and see that such routines are followed. For instance, medical malpractice insurers have a stake in helping medical practitioners and hospitals avoid law suits, and innumerable inspections, certifications, reviews, and rules flow from a hospital’s decision to self-insure or to purchase insurance. The successful penetration of civil law has come about, then, partly because hospitals and physicians wish to protect themselves from the financial and reputational losses of malpractice suits and partly because diligent insurers have devised ways to influence the daily routines of NICUs. A substantial proportion of the management staff reports directly or indirectly at one time or another to someone who represents insurers’ interests. Because the responsibility for putting tort law on the agenda has been delegated to regular participants and incorporated into NICU routines, insurers need not be physically present to ensure that NICU decisionmaking is sensitive to civil law. Though medical personnel may resent the extra chores, risk managers and insurers are usually perceived as partners who offer sound advice about how to practice legally defensible medicine. Because the threat of malpractice suits is defined by staff as a problem, the institutionalized practices of law that they envision as a solution to this problem are mostly not adopted as an empty ceremonial gesture to outsiders. However it is sometimes hard to untangle symbolic and instrumental purposes, particularly when there is ambiguity about the medical efficacy of protocols. Adherence to the . . . rule requiring parents and social workers to wear gowns rather than street clothes is an even more ambiguous case. Staff may not believe the rule decreases infection rates. But because it does little damage beyond increasing the hospital laundry bill, NICUs continue to enforce the rule rather than fighting [it]. Criminal Law—Medical Staff Adopt Legal Tools as Solutions The criminal law also shapes NICU medical practice. Laws prohibiting murder and manslaughter are invoked to prevent physicians from withdrawing life support from infants. State laws prohibiting child abuse and neglect are invoked more often. These laws govern the behavior of parents and hospital staff, though medically related cases are much more commonly brought against parents (especially mothers) than against health care providers or hospital social workers. The penetration of law about child abuse and neglect has been facilitated by the eagerness of hospital personnel to employ legal tools. But this has led to a one-sided development of institutionalized practices. The statutes articulate standards of behavior for both parents and health care providers and provide penalties for both groups of actors, although they probably do a better job of representing staff concerns about parents than parent concerns about staff. But only selected portions of the statutes have been elaborated into flexible, easily employed routines. Routines that allow staff to report medical neglect by parents, for instance, are not matched by documented and flexible routines that make it easy for parents to report physician misbehavior. One-shotter parents have little capacity to develop tools during their child’s NICU stay, and staff members are unlikely to see such tools as useful solutions to important



NICU problems. In the coalition between law and medicine neither medical nor legal institutions have lost power—only families have experienced a decrease in influence. Regulatory Law—New Choice Opportunities for One-Shotter Parents The third category of law impinging on medical practice in NICUs is regulatory law, which governs how health care practitioners are to relate to patients and their families. [For instance,] the doctrine of informed consent is an attempt to balance the competing rights of the patient, family, and physician in medical decisionmaking. Informed consent statutes (and resulting routines) are more often “solutions” crafted by medical practitioners than by their patients. Attorneys for medical groups drafted some informed consent statutes and the consensus seems to be that most medical groups have taken a defensive stance on informed consent. Further, medical groups may have hoped that, properly designed and implemented, informed consent routines could signal respect for patient rights without jeopardizing medical discretion. Ideally, informed consent procedures would institutionalize patient and family participation in decisionmaking by introducing a new choice point—a decision opportunity in which both camps had to be present. But the signing of consent forms seems instead to have been institutionalized as a ceremony decoupled from the “real” decisionmaking that goes on behind the scenes—a choice point in which no real choice is made. Although many families submissively sign informed consent forms, others regard the signing of forms as their opportunity to open a dialog. Although they are in a minority, some parents cross out the words about the administration of blood products from blanket consent forms or annotate the form. The institutionalized practice of informed consent may typically be experienced as a ritual . . . though it need not be an empty ritual. When some parents are prepared to use the ritual for their own purposes and physicians have been culturally primed to respond to those moves, informed consent will at least some of the time be parents’ foot in the medical door. Fiscal Law—Legal Actors Fail to Define Legal Issues as Problems Finally, what happens in NICUs is shaped by fiscal law—regulations about the expenditure of federal and state monies. The most notorious of these are the Baby Doe Regulations and the Child Abuse Amendments. As a result of rules passed in 1973, hospitals receiving any federal funds are prohibited from discriminating against the handicapped in any of their activities, whether or not these activities are themselves federally funded. For the most part, medical personnel have had little stake in conforming to the requirements. They have had little to gain by altering medical routines to treat infants whom they would not otherwise have treated, particularly when the legal sanctions—withdrawal of funds or prosecution for criminal acts—did not materialize. Though posted notices provided hotline numbers and though squads of investigators were available to descend on hospital units reported to be withholding care from a

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disabled infant, in fact few calls were made, even fewer full-blown investigations were carried out, and no evidence of discrimination or neglect was found. Fiscal pressure is a blunt instrument here. For the Baby Doe Regulations, the federal government had to demonstrate a pattern of discrimination before funds could be withheld. Further, the pressure is being applied to the wrong problem—most of the infants in NICUs are not “handicapped” but premature. Finally, because the strong predisposition of physicians and parents is to treat, the “problem” which the regulations purported to solve was not often a problem in the NICU. No one could sell the solution as a match for any existing problem. Institutional Imperialism and Legal Domination of Medicine Although the law casts a long shadow in medicine, we need to think carefully about how the influence of law varies from one area of medical practice to another. The shadow of the law may indeed be long, but long shadows need not be equally dark. Where legal influences seem most intense, the cause may well be that legal pressure coincides with pressure from professional bodies or other groups. These groups may in turn be influenced by the law. The effect of law is greatest, then, where legal institutions work in tandem with other institutions and least where legal and other institutions work at cross purposes, as when families or physicians resist judicial intrusion. The extension of legal domination into other spheres is a multistage process. The passage of legislation is an important step in the process, for legal domination cannot occur without enabling legislation. But laws can be either enforced or ignored. The mechanisms that make the penetration of law into the NICU possible vary with the kind of law, and with how skillfully those interested in enforcing or using a law adapt it to the medical setting. Generally speaking, in a medical setting legal tools are more effective in the hands of medical actors than in the hands of people less familiar with the materials upon which the law is being used. Lawyers and state agents may know the tool well, but one needs to know the material as well as the tool to be effective.

Conclusion: Organizational Actors as Users of Institutional Tools Concern over legitimacy does indeed force organizations to adopt practices that make them look reputable to key elements of their environments. But . . . [a]doption of institutions associated with the law, with the family, and with medicine . . . satisfies different constituencies, and we are left with a deep puzzle about how the claims of these three institutional spheres can be adjudicated in a manner that does not entirely delegitimate the NICU. All else equal, locals will have some advantage in influencing how decisions are actually made, while more distant participants will have to be satisfied with more ceremonial attention to their demands. Of course all else is not always equal, and adroit repeat players can become adept at influencing the core functions of an organization. Determined one-shotters, such as families, may be able to influence individual



decisions but are less likely to be able to alter institutionalized practices—the routines, protocols, or scripts that shape decisionmaking. Legal institutions are especially important in conferring legitimacy. But for law to have any substantial effect legal tools have to be used. Laws end up mainly being used for the purposes of the repeat players in hospital settings—physicians rather than parents or agents of the state. Laws that are less useful to hospital staff are less likely to be used and so have less effect. Laws that are useful to high-status professionals like physicians are more likely to be incorporated into NICU routines than laws that might be useful to lower status staff or to families. [O]nly by looking at the microprocesses by which institutionally based problems and solutions are brought together in a particular setting can we understand how one institution gains ascendance over another.


Challenging Medicine Law, Resistance, and the Cultural Politics of Childbirth Katherine Becket t and Bruce Hoffman

Much recent sociolegal scholarship focuses on hegemony and resistance to it. In this scholarship, hegemony is broadly understood as power that maintains and naturalizes existing social structures; resistance refers to actions that lay bare the historical and constructed nature of these social arrangements and the inequalities they generate and sustain. This literature has generated many important insights regarding law as a source of both hegemony and resistance; yet . . . most such studies focus on everyday acts of resistance or the resistance of ordinary citizens in administrative settings such as courtrooms and welfare offices. As a result, the role of social movements as sources of resistance and sociolegal change is less well understood. Furthermore, because individual acts of resistance are arguably less likely to have long-lasting or institutional effects, social actors’ capacity to challenge hegemonic understandings, alter power relations, and effect sociolegal change may be underestimated. This article analyzes the development and recent legal victories of a particular social movement—the alternative birth movement—in order to explore this possibility. This analysis shows that the capacity of a dominant group (i.e., organized medicine) to mobilize the law on its behalf was the impetus for the emergence of a social movement that now endeavors to undermine medicine’s cultural and professional authority over childbirth. [O]ur analysis shows how some of the cultural preoccupations thought to favor organized medicine have become resources for its antagonists. [B]irth activists have learned to very carefully craft their arguments and appeals in ways that invoke dominant categories and symbols—while also giving expression to cultural ambivalence about them (where it exists) and realigning those cultural elements with their cause. [O]ur analysis makes several contributions to the literature on hegemony, resistance, and the law. First, by demonstrating the importance of medicine’s assertion of its authority for the expansion and mobilization of the alternative birth movement, our analysis suggests that a powerful group’s mobilization of the law may trigger the emergence of social movements seeking to resist hegemonic understandings and arrangements. At the same time, by examining how birth activists’ organizational resources developed over time and were rendered meaningful in legislative debates, our Abridged from Law & Society Review 39, no. 1 (2005): 125–70.




study demonstrates the importance of avoiding dichotomous conceptions of structure and culture. Finally, by analyzing culture as a process of meaning-making rather than an independent and hierarchical set of values, our analysis shows how cultural and legal hegemony—even that of modern medicine—may be destabilized, even as it sets the terms of the effort to destabilize it and shapes the nature of the hegemony that will replace it. Data and Analysis The analysis of the transformation of the alternative birth community from a hodgepodge of disconnected local groups to a semi-organized social movement is based on interview and documentary evidence, including midwifery newsletters, and secondary accounts of the birth movement’s development in states across the country. The analysis of the legislative debates presented in part II is based on observational, documentary, and interview data pertaining to the legislative process in six states. Like other analysts working at the intersection of law and social movements, we are interested in how movement participants “attempt to mobilize potential adherents and constituents  .  .  . and to demobilize antagonists” (Snow and Benford 1988: 198). However, we also seek to explain whether birth activists’ “collective action frames” (Snow and Benford 2000) have become culturally viable—that is, were referenced by lawmakers when explaining their decision to support midwife-sponsored legislation. [O]ur analysis does not seek to explain legislative outcomes. Rather, we analyze the process by which birth activists have attempted to persuade lawmakers to support their cause and explore legislators’ justifications for their votes to assess the cultural viability of birth activists’ rhetoric.

Part I: Getting Organized—Law and the Emergence of the Alternative Birth Movement Although seemingly radical in the 1970s, home birth and midwifery were commonplace in the United States only a few generations ago. By the 1970s, however, hospital birth had become the norm. The relocation of childbirth was a consequence of a host of demographic, institutional, and cultural changes, as well as the consolidation of medical authority and power. As childbirth moved to the hospital and under physicians’ jurisdiction, the laws regulating non-nurse midwifery became quite varied. Under pressure from organized medicine, some states explicitly prohibited midwifery. Others allowed its practice but restricted it through licensure and other regulatory mechanisms; still others, especially those with large rural populations, tolerated but ignored its practitioners. [I]n the early 1970s . . . members of alternative birthing communities called for the revival of home births and (non-nurse) midwifery. These birth activists drew their inspiration from the women’s health, countercultural, and civil rights movements, as well as from practicing midwives. One of the first and best-known alternative birthing


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communities comprised a group of cultural dissidents from San Francisco who traveled via bus to rural Tennessee, where they established The Farm, a spiritual community dedicated to “natural living.” Meanwhile, the Seattle-based Fremont Women’s Health Collective, staffed by feminist health activists inspired by the Boston Women’s Health Collective, began to learn midwifery and attend births. These activists were more strongly influenced by socialist feminism than by countercultural spirituality. Members of these groups expressed little interest in promoting midwifery as a profession. Their humble beginnings notwithstanding, these dispersed alternative birthing communities were perceived at the outset as a serious threat by organized medicine. [D]irect medical opposition to alternative birthing practices and practitioners took different forms depending on the legal status of midwifery. In states where midwives’ legal status was more dubious or clearly illegal, medical personnel began to report individual midwives to legal authorities. Prosecutions were ultimately attempted in nearly half of the fifty U.S. states. Over time, the continued threat of prosecution led many birth activists to seek or support midwifery licensure. As legal harassment became more common . . . many birth activists were persuaded that the threat of criminal prosecution was a more serious cost than the limitations imposed by licensure. For those convinced that the risk of prosecution outweighed the costs associated with state regulation, the quest for licensure required enhanced organizational efforts. [B]irth activists in local communities began to develop connections and share ideas as they pursued state licensure. [O]rganized medicine vigorously contested any effort to loosen restrictions on midwifery. Institutionally, growing state and corporate control over health care financing was beginning to undermine medicine’s autonomy in the 1970s. Culturally, increasing distrust of experts in general and allopathic doctors in particular have given rise to both “self-help” and alternative approaches to health care that were virtually eliminated earlier in the century. [O]rganized medicine’s opposition to midwifery is best understood as one component of a larger effort to protect and restore the professional and cultural hegemony it enjoyed for much of the twentieth century. Ironically, in the case of midwifery, the intensity of these efforts facilitated the growth and organization of a social movement that is challenging medical authority over childbirth across the country.

Part II: Challenging Medical Hegemony in the Legislature Birth activists’ efforts to achieve their legislative goals have been surprisingly (though certainly not altogether) successful. Midwifery is now legal in thirty states. These outcomes are surprising in light of the organizational and financial resources of organized medicine, as well as the argument that the cultural and political hegemony of modern medicine precludes the possibility that birth activists will prevail in legal arenas. Indeed, birth activists’ victories suggest that this argument rests on an overly static conceptualization of hegemony. Hegemony’s double-sided nature is revealed in our analysis of birth activists’ attempts to legitimate midwifery and home birth.



The Rhetoric of the Alternative Birth Movement: Midwifery-as-Tradition Birth activists located their claims and arguments in a narrative of tradition and continuity, depicting midwifery (like motherhood) as an age-old practice and long-honored profession. In this narrative, midwives embody the long-standing tradition of women helping women. This way of framing the issue underscores midwives’ expertise and distinctive care in a nonthreatening way, invokes maternalist imagery, and tempers the more adversarial tone of some of the alternative birth movement’s rhetoric. Within this narrative structure, midwives are heroines, struggling against state and medical officials to serve pregnant and birthing women. The appeal of this narrative is clear: Midwives merely want to help women enact one of their most culturally sanctioned tasks (becoming a mother). Safety Birth activists have gone to great lengths to assure lawmakers that their primary concern is maternal—and especially infant—safety. One simply must be concerned about safety in order to be seen as credible. For this reason, many activists have stressed that midwives screen their clients carefully and serve only those deemed “low risk.” Even as they emphasize safety and embrace the logic of risk assessment, though, birth activists offer an alternative route to safety. In particular, birth activists stress that childbirth is a normal and natural process, one that is, for the majority of women, low risk. This emphasis is an implicit—and, occasionally, explicit—critique of what they characterize as the fearful, defensive, and “high-tech” approach that, they assert, prevails in hospital settings. Science Medicine has long benefited from its association with this powerful cultural icon [science]. The problem for opponents of midwifery is that most of the scientific (i.e., epidemiological) evidence does not support their argument that home birth is inherently unsafe. Midwives and their supporters have seized upon this irony to position themselves as the truly scientific ones. Toward this end, birth activists cite a seemingly endless supply of epidemiological studies that conclude that planned home births attended by trained birth attendants are “as safe or safer” than hospital birth for low-risk women. Technology Western and especially American culture is often said to be characterized by an undying faith in and fascination with technology. But faith in technology is only part of the cultural story; discourses expressing fear of technology gone awry also abound, and many contemporary social movements—especially the environmental movement—highlight the risks associated with modern technology to great effect. The idiom of “the natural” has proliferated in this context, and the spread of natural


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foods, natural clothing, and natural medicine suggests that this rhetoric has significant cultural appeal. Birth activists finesse this cultural tension by both invoking the ideal of the natural and acknowledging that technology can, indeed, be lifesaving. [M]idwives work hard to identify themselves as competent, if more careful, users of medical technology, while at the same time characterizing birth as a normal rather than medical event and valorizing the virtues of natural childbirth. Professionalism Insofar as licensure demarcates professional from nonprofessional groups, it is hardly surprising that midwives draw on the language of professionalism to make their case for licensure. Yet even as they tout their professional qualifications . . . birth activists downplay the potentially negative consequences of professionalization by depicting midwives as a more folksy kind of health care provider, assuring the audience that although extensively trained and rigorously examined, midwives remain committed to serving populations ignored by (more elitist) others. In sum, the cultural valuation of safety, science, technology, and professionalism has required that midwives work hard to associate themselves with these values, although, in the case of professionalism and technology, they also give expression to cultural ambivalence about them. Birth activists combine references to these cultural values and symbols with a number of other, also very powerful themes and motifs that are more indigenous to the alternative birth movement[:] . . . choice, turf battles, grassroots motherhood, safety through regulation, and legal harassment. Choice Midwives and their supporters consistently frame this debate as one centrally about individual choice, arguing vigorously that women have the right to choose where and with whom they will give birth. Notably, birth activists avoided linking this choice to the right to choose abortion by avoiding more general terms such as reproductive choice or the right to choose. Turf Battles [T]he claim that midwife-attended out-of-hospital birth is relatively safe is supported by references to scientific studies and to midwives’ professional qualifications and expertise. But it is also supported by the suggestion that the doctors who oppose midwife-attended births are engaged in a “turf battle,” and thus that medical claims about lack of safety are suspect. [B]irth activists invoked a kind of David and Goliath imagery, raising suspicions of opponents’ veracity by highlighting organized medicine’s professional and economic interests in the outcome of these debates.



Grassroots Motherhood Although birth activists lack the financial and organizational resources of their opponents, they are remarkably successful in mobilizing what they do have: extensive grassroots support and their (gendered) identity as mothers. [T]he support of many families, especially mothers, was expressed most powerfully through the somewhat incongruous bodily presence of mothers and their babies in legislative meetings and floor debates. In this case, then, grassroots mobilization is not just grassroots mobilization; it is the mobilization of motherhood itself. The flip side of this emphasis on motherhood is the obliteration of that which is often perceived to be its opposite: feminism. Although many activists on this issue identify themselves as feminist, they are quite careful about where and when they do so. Safety through Regulation Not too surprisingly, birth activists and their supporters stressed that although they seek to improve access to midwifery services, it is important to ensure that those services are safe. Thus, for birth activists, licensure has made a good practice better, providing the state with greater control over midwifery training, creating a more favorable economic and legal climate for midwives, and enabling the consumer to assess midwives’ training and education. Legal Harassment In these debates, reference was frequently made to the injustice of criminalizing women for helping other women to have the births they desire. Like invocations of turf battles, references to the legal harassment experienced by midwives were clearly intended to generate sympathy for the underdog.

The Rhetoric of Organized Medicine: Medicine-as-Progress In sum, birth activists attempted to persuade lawmakers to support midwifery licensure by combining (qualified) appeals to the values historically associated with medicine (safety, science, technology, and professionalism) with references to choice, turf, motherhood, safety through regulation, and legal harassment, and situating appeals to these themes and values in the “midwifery-as-time-honored-profession” narrative. Of course, representatives of organized medicine vigorously contested this narrative, challenging birth activists’ claims in an attempt to persuade legislators that efforts to expand and legitimate home birth and midwifery are misguided. These rhetorical appeals were embedded in a narrative we call “medicine-as-progress.” In contrast


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to midwifery-as-tradition, medicine-as-progress depicts the twentieth century as the triumph of technology and medicine over maternal and infant mortality. Despite the fact that midwives are an important part of the maternity care system in most industrialized countries, midwifery is depicted by organized medicine in the United States as a return to a dangerous and anachronistic past: “Again Mr. Speaker, I don’t know why this bill is here, I don’t know why we want to roll the clock back to the turn-of-the-century medicine. That’s what we’ve tried to advance from, that’s not what we should be advancing to!” (February 7, 2000, TN House Floor, TN-322). Given this narrative structure, it is hardly surprising that representatives of organized medicine argue unequivocally that out-of-hospital birth is unsafe. The implicit, and sometimes explicit, logic of this argument is this: Because hospitals house welltrained and highly educated doctors and medical technology, and because doctors and technology save lives, out-of-hospital birth must be unsafe. Highlighting the differences between physicians’ educational status and the fact that one can be credentialed as a CPM [certified professional midwife] without attending a formal educational institution—or even graduating from high school—has also helped shift the focus to midwives’ alleged educational inadequacies. Contra the claims of birth activists, opponents of midwifery licensure often suggest that it is not doctors but midwives who are encroaching on professional turf and seeking, illegitimately, to establish a monopoly.

Legislators’ Accounts Despite the efforts of the opposition described above, many legislators (and a majority of those we interviewed) voted in favor of midwife-sponsored legislation. In what follows, we draw on interview and archival data to analyze the ways in which legislators legitimated their decisions to vote for or against these bills, beginning with those who voted in favor of midwifery. [L]awmakers primarily invoked the image of midwives as competent health care providers working to ensure that families are able to exercise consumer choice in order to explain their votes. Supportive lawmakers came to believe that midwifery is safe in a number of different ways. For some, the studies cited by midwives were persuasive. Most frequently, though, when asked to explain how they adjudicated competing claims about safety, legislators suggested that doctors’ claims could not be trusted because they were solely concerned with protecting their turf. [P]hysicians were not accorded a high degree of trust and respect by lawmakers of either party. Conversely, numerous legislators with whom we spoke found midwives to be credible and trustworthy; only a few legislators applied the “turf battle” logic to discredit midwives’ statements regarding safety. Thus, it appears that physician opposition to efforts by non-physician health care providers to secure licensure, as well as growing cultural mistrust of experts in general and medical authorities in particular, has engendered a more cynical view of physicians among lawmakers. Midwives are thus able to tap into a kind of populist animosity toward the “big guys” and the medical monopoly they have historically enjoyed.



The most consistent reason given for supporting efforts to expand midwifery was respect for the individual’s right to choose, often referred to as “consumer choice.” The rhetoric of choice even struck a chord with legislators who identified themselves as “anti-choice” on the abortion issue. The appeal of birth activists’ emphasis on consumer choice is not too surprising, given the strength of individualism—and consumerism—in American culture. In sum, many lawmakers justified their votes in the very terms offered to them by birth activists, suggesting that activists have successfully forged a culturally viable interpretation of what is at stake in the debate over midwifery licensure. Of course, broader cultural and institutional developments help explain the appeal of birth activists’ rhetoric at this historical moment. In particular, the fact that organized medicine routinely opposes the licensure of a wide range of alternative care providers and para-professionals appears to reinforce the image of physicians as primarily motivated by the “almighty buck,” and helps explain lawmakers’ responsiveness to birth activists’ invocations of “turf battles.”

Legislators’ Opposition Of course, not all legislators voted in favor of midwifery licensure bills. Opposition to midwifery-sponsored legislation was frequently couched in terms of safety, and was strongly associated with the expression of a favorable view of doctors and the idea that medicine is responsible for improvements in public health. Legislators who opposed licensure bills reiterated medical claims regarding the unpredictable and dangerous nature of birth and the fact that midwives’ educational and training requirements are, in their view, minimal. Other legislators who opposed midwife-sponsored legislation remained aloof from the debate and explained their lack of engagement in terms of the legislative process. A central concern here was the amount of time spent by birth activists pursuing licensure: Many legislators felt strongly that legislation should be an “incremental” and “educative” process. Other legislators attributed their opposition to birth activists’ failure to negotiate the support of medical associations or state medical boards. In several states, these legislators charged birth activists of attempting to circumvent the political process by avoiding this negotiation.

Conclusion This analysis of the development of the alternative birth movement and legislative debates over midwifery licensure supports several conclusions. First, medicine’s effort to assert its power and authority through the law triggered the expansion and organization of a social movement dedicated to challenging its authority over childbirth in a public and systematic way. Sociolegal scholars increasingly note that the law serves as both an instrument of control and of transformation; the analysis presented here


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paints a detailed, empirical picture of how, precisely, the attempt to mobilize law as an instrument of social control may create the conditions in which it becomes an object and mechanism of social change. In addition, by analyzing the process by which key organizational and associational resources—such as extensive and active networks of home-birthing mothers and the institutional capacity to examine midwives and certify successful examinants—developed over time and were rendered meaningful in legislative debates, this analysis demonstrates the inseparability of culture and structure, and of conceptualizing culture as a process of meaning-making rather than a separate or independent variable. Finally, the analysis of the legislative process presented here illustrates hegemony’s double-sided nature. The fact that many legislators explained their decision to vote in favor of midwifery licensure in terms of the very categories that are thought to privilege medicine indicates that hegemony is indeed contestable and transformable. Cultural meanings, images, and associations are not fixed, but (somewhat) fluid; this fluidity is an important resource for movement activists resisting sociolegal hegemony and helps explain the recent adoption of relatively favorable licensure laws. At the same time, it is quite clear that this transformation does not occur on a terrain of activists’ choosing. As was discussed previously, some have argued that the widely shared and deeply held values that underpin modern medicine and culture—safety, science, professionalism, and technology—ensure the medical domination of midwifery. Our research confirms the centrality of these cultural values to this debate and indicates that contestants in this struggle ignore them to their peril. It also identifies other cultural constraints: Birth activists are not free to align themselves with feminism or reproductive rights more generally, and they are on much safer ground when they attack organized medicine for seeking to augment its professional wellbeing than when they attack medical practices themselves. Thus, there are indeed limits to what is culturally viable, and these limits constrain those seeking to challenge (and reconfigure) medical and legal power. In these ways, the potential cultural and political impact of the birth movement is muted, and a new hegemony in which a “legitimate” and professional midwifery is pitted against its “illegitimate” counterpart appears to be emerging. Hegemony, then, may not be permanent, but it clearly shapes the terms and terrain of struggles for change, limits what is realizable, and transforms those who seek to dismantle it in fundamental and long-lasting ways.


Alternative Readings The Status of the Status of Children Act in Antigua and Barbuda Mindie L a z a rus-Bl ack

English colonists settled Antigua [one of the Leeward Islands in the eastern Caribbean] in 1632. During the next century, they turned the island into a slave society known principally for the quantity and quality of its sugar. Slavery ended in 1834, but the vast majority of the working population remained tied to labor on the estates because there was little available land either to cultivate or to purchase. Planters ran the island’s economy and its local government until almost the middle of the 20th century. Since the 1950s the economy has shifted away from sugar and other agricultural crops and toward heavy dependence on tourism. Antigua gained full independence from Great Britain in 1981. Three family statutes had passed into law by 1987: (1) the Births Act, which allows men to easily register and thereby legitimize children born outside marriage and which potentially applies to some 80% of the island’s population; (2) the Intestate Estates Act, which enables such legally acknowledged children to inherit from their father’s estates a right denied them under colonial law; and (3) the keystone of the three, the Status of Children Act, which outlaws discrimination against illegitimate children. In short, Antigua is a community in which the legal definitions, rights, and responsibilities of kinship have been recently radically transformed. But to what extent can these legal proclamations and judicial processes transform people’s commonsense understanding of family? What norms, practices, or legal processes will mitigate or otherwise modify the intentions lawmakers had when they framed these laws? I find that in practice the Status of Children Act does in fact protect children mainly from their own clergy and teachers. We are witnessing a rather dramatic shift in the Antiguan state’s intervention in people’s everyday lives with significant consequences for the meaning and practice of familial and gender relationships. In addition, we are observing a shift in the distribution of power between the state, the churches, and the schools. In fact, certain institutions that historically created and sustained hegemony without opposition are now at ideological odds with each other. [T]he potentially revolutionary impact of the move to end discrimination against illegitimate children is undermined by certain alternative readings of the law. In addition Abridged from Law & Society Review 28, no. 5 (1994): 993–1008.



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to protecting the status of illegitimate children, the Status of Children Act sometimes serves as a strategic device to contest parental rights, particularly men’s rights over illegitimate children. In practice, it provides for men a new source of power with which to control the lives of women and children.

Kinship as Colonial Heritage The status of children is, of course, partly a function of family, and family law has been a powerful and often-evoked device for constructing social order in Antigua. Throughout the slave period, Christian marriage was the ideal for free settlers and servants, but marriage rates nevertheless remained low. A variety of reasons explain this, including unbalanced sex ratios in the early years, the fact that only Anglican clergy were allowed to perform marriage ceremonies, the unavailability of legal separations and divorce, planters’ preferences for employing bachelors, and the law that indentured servants could not wed without their masters’ permission. Not surprisingly, prostitution and concubinage flourished alongside the ideal. In Antigua, as elsewhere in the English-speaking Caribbean, a kinship system evolved in which free men of means legally married women of their own social and economic status. Those same men were engaged, before marriage, and very often afterwards, in unions with women of lower socio-economic status. “Respectable” free women and widows, in contrast, either married, remarried, or remained alone. Legal marriage was initially denied to slaves. After 1798 the Leeward Islands General Legislature created a special form of marriage for them. The few historical records that speak to the conjugal and reproductive practices of slaves in Antigua suggest there was never a single type of slave family. Single and multiple unions coexisted in different proportions in different places and at different times because the contexts in which slaves labored influenced both the number and types of conjugal relationships. Slaves on large estates, for example, had access to a pool of potential partners on their own and nearby estates. On the other hand, many town slaves were domestics and they were more likely than field laborers to live in mother-children households. Antigua’s few free people of color mostly lived in the towns where they could find employment. They forged relationships with each other and with slaves. In the 1820s, some of them married at the Anglican church in St. John’s, the largest town. Town slaves and free people of color in Antigua were among the island’s first Christian converts. The Anglicans, Moravians, and Methodists were very successful at proselytizing in the Leeward Islands. By the end of the slave trade in 1807, the missions claimed to have converted 28% of the black and racially mixed population. Christianity therefore played a decisive role among the structural and personal variables influencing conjugal patterns. By the end of slavery, a legal church wedding had acquired a special meaning across the ranks of this society.



Illegitimacy, Discrimination, and Contemporary Practice It would not be an overstatement to say that until very recently legitimacy status, in combination with gender and skin color, defined a person’s life chances in Antigua. Many planters left the island when slavery ended. As the white community contracted, people of color gained new opportunities. But they gained access to the goods and services of their society only to the extent that they conformed to colonial signs of respectability, including legal marriage. The earlier correlations between social class and formal wedlock were therefore strengthened. Critically, legitimacy was a prerequisite for acceptance at the better schools. Social mobility was therefore almost impossible without it. Clergy, of course, universally condemned fornication. Despite the fact that illegitimacy was normative, it was associated with lust, lack of responsibility, and low social status. The state, the church, and the schools all condemned it. Older Antiguans remember explicit examples of discrimination against unmarried women and illegitimate children. During the debates preceding the enactment of the Status of Children Act, one member of Parliament recounted: [Y]ears ago when I was small . . . the bastard children were baptized before the [church] service. You could not mix them up at all. And the mothers who were married were blessed at a special service with a special hymn. And the mothers for the bastard children didn’t get any blessing.

An attorney, about 35 years old, described another occasion when students become aware of illegitimate status: [W]hen I was going to school . . . in the mid ’60s, you didn’t need . . . [a birth certificate]. People sort of walked and said my daughter Mary wants to come to this school and Mary was registered. But you would have needed it during the overseas examination. Because we use[d] to do the London examination. And so that for registration you had to produce your birth certificate.

All the attorneys I interviewed praised Antigua’s new Births Act for enabling people to amend easily the birth certificates of illegitimate children and so allow them to secure legal documents such as passports, visas, and American green cards. An attorney visited by two parents who suspected discrimination against their children in 1987 and by two others in 1988 explained: [T]he discrimination is not to the fore [obvious]. They ask you to bring your birth certificate in. And if in fact it is not regular in the sense that husband [and] wife . . . they would tend to wish to turn you back on some pretense such as no space, or some other reason.


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[A second] attorney’s response to [a school headmaster’s] discrimination against an illegitimate child intrigues me both because it is an example of the power of law to command behavior that conflicts directly with once-common discriminatory practices, and because the Status of Children Act is for him a refutation of slavery and colonialism and symbolic of a distinctly West Indian identity: I picked the telephone up and I called the principal and I said to him I believe slavery was abolished way back . . . and I told him also that after emancipation, that discrimination existed, but between the planters and the slaves, and since the planters left, we slaves took over. (He laughs.) And I can’t understand why you think that we should try to deprive a young boy of education. And he said, “Oh Mr. [attorney’s name]. I happen to know that you are trying to create a problem for me.” I said, “No I’m not. I just want you to do what is right.” Because when this act was passed, the whole intention was to put the . . . bastard child on the same footing. Recognition, that’s what we want. That’s why it was passed. And I’m pleased to say that not only has my boy  .  .  . gotten in and is doing very well, but I’m told, from information sources, that other children have succeeded because my client broke the ice. And he [the headmaster] recognized that provided the parents sought legal advice that it could be very nasty for him. Because he was flying in the face of Parliament and in the face of what the law intended. And that is to stop this discrimination against bastard children. That’s exactly what happened.

The content of this message is radical; it insists on the equality of all children in defiance of a hegemonic order that has traditionally stigmatized illegitimate children and denied them equal access to education. It speaks also to an emerging West Indian identity that refuses to equate illegitimacy with subordinate status. The need for an act to protect children born out of wedlock was therefore real. Discrimination against illegitimate children is still naturalized, institutionalized, and perpetuated in Christian schools and churches in direct opposition to the state. The Status of Children Act seems to be functioning as lawmakers intended: It is an instrument for protecting illegitimate children and a symbol of an emerging West Indian consciousness.

Alternative Readings There are, however, other ways to read and apply the Status of Children Act. These alternative readings hold that the law redefines the parental rights of women and men who have illegitimate children. The case of Patty and Michael illustrates the point. Patty and Michael fell in love in 1987 and saw each other regularly. She had his child the following year. By 1989, however, Michael was quarreling regularly with Patty and Patty’s mother, who cared for the child after preschool and until Patty got home from work. Patty accused Michael of purposefully harassing them. He complained she wouldn’t allow him to see his child. She offered to support the child



entirely if he would just leave them alone. He said he wanted to maintain the child. Eventually, they both went to lawyers who then offered them profoundly different interpretations of how the Status of Children Act affected their parental rights. Michael’s attorney argued that if Antiguan law held that no distinctions were to be drawn between legitimate and illegitimate children, then the unmarried parents of those children held equal rights to their care and custody. Why should the fact that he was not married to Patty deprive Michael of custody and control of his child? Patty’s attorney held the opposing view. In his mind, the Status of Children Act was never intended to, and did not, alter unmarried women’s common law rights to care and custody of their illegitimate children. He explained: “The common law principle is that the father of a child born in wedlock is the legal guardian of that child [and] . . . the legal guardian of the child born out of wedlock is the mother.” The conflict between Patty and Michael dragged on for more than a year, with both attorneys wavering between trying to resolve the dispute out of court and wanting to force a test case of the meaning and consequences of the nation’s new Status of Children Act. Patty finally reluctantly agreed to allow Michael some visitation rights—rights that dwindled in importance to him over time. [I]n addition to protecting children from discrimination, the Status of Children Act was being evoked to redefine the rights of fathers of illegitimate children. When I suggested this to Patty’s attorney, he replied: Yes, but you see this is the whole thing. The whole of these laws is based on a fiction that the welfare of the child is the paramount consideration. And I consider it to be a fiction because it cannot be a generalized statement that the welfare of the child is what is taken into account. It is the welfare of the child as seen through the welfare of the two parents. This law which is supposed to break down barriers is being used as a weapon by one person or the other.

By the summer of 1993 informal discussions with his peers of the meaning and consequences of the law caused one attorney to alter significantly the way he presented a case for the adoption of a child to the High Court: I did an adoption and I took the precaution of providing an affidavit by the mother as to why we  .  .  . did not have the consent of the father. He [the father] had never supported the child. The child is now four years of age. We provided an affidavit as to why the father was not contacted and the judge was favorably [impressed], was happy to see that. Because he said he noticed that no mention was made of the father in these cases, which was the old position, that the child has no father.

In this reading, then, the Status of Children Act implies that the fathers of illegitimate children are entitled to approve or disapprove of the adoption of their children. Previously, adopting parent(s) were not expected to obtain such permission. Antiguan law has historically placed the burden of care and custody of illegitimate children in the hands of women. The old law assumed women had fundamental

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responsibility for children and held women liable for children’s welfare unless they were married. On the one hand, the new Status of Children Act offers relief from financial and social burdens that women may no longer want to bear. Yet this law takes away what has always been a legal certainty: that unmarried women have custody of their illegitimate children. For the most part, Antiguan fathers do support their children. The extent, forms, and duration of such support, however, vary with his age, the number and ages of his children, his relationship(s) with the mother(s) of his children, his approval of her behavior, pressure from other “friends,” the number and kinds of other claims made on his time, energy, and income, and his sensibility about what “fathering” should entail. In other words, kinship and gender norms mostly give men choices in parenting. The irony of reading the Status of Children Act as one that gives men and women equal rights to parent is that it gives men another vehicle for wielding power over women and children. The conflict between Patty and Michael was a case in point. Michael demanded time with his child when he discovered Patty had left him for another man, not because he was seriously concerned about the child’s welfare, but because he sought to control Patty. Granting equal legal rights to illegitimate parents assumes the fiction that men and women are equal. It assumes gender equity rather than gender hierarchy.

Conclusion The Status of Children Act was specifically intended by lawmakers to end the disabilities of children born out of wedlock. I find it has had some success in achieving that goal. Interestingly, the role of protecting illegitimate children fell to certain lawyers who moved headmasters to rethink certain admissions decisions. The attorneys accomplished this task without publicity, in the name of protecting children, and conscious of asserting a new West Indian identity. That they could do so swiftly and successfully is testimony to a change in the “common sense of power” in Antigua and demonstrative of a shift in the hegemonic definition of family. In addition, this law signals both an emerging West Indian consciousness and an ideological rift between church and state over the “proper” definition of family, a rift that is being worked out in schools. Whether Antigua’s new Status of Children Act will also legally change the status of parents of illegitimate children still awaits testing. In the interim, some attorneys find in the code a strategic device that empowers men. The consequence is that the law that promotes a new individual and national consciousness also buttresses gender hierarchy. The failure to acknowledge that gender is a contested domain of conflict and order, a venue for negotiating power, leads to legal reforms that reinforce gender hierarchy.


Landscapes of the Law Injury, Remedy, and Social Change in Thailand David M. E ngel

From an airplane, northern Thailand is a panorama of wild mountains, rice fields, orchards, and urban sprawl. Looking out the window, passengers cannot, of course, see the borderlines separating Thailand from neighboring Myanmar or the province of Chiangmai from the adjacent provinces of Tak, Maehongson, Lampang, Lamphun, and Chiangrai, although the aerial view of the Thai state is precisely the perspective favored by governmental mapmakers. Nor can passengers discern features of the physical landscape that have special significance for the people below, such as sacred trees and pillars, or village shrines and temples, although these features of the physical landscape support nonstate imaginings of the geography of northern Thailand. As the plane descends and its wheels thump on the tarmac, some passengers acknowledge these sacred features of the landscape by lifting their hands together palm to palm (wai) to show respect to the venerated mountain crest of Doi Suthep, which overlooks the city of Chiangmai. Since the mid-nineteenth century, differing conceptions of law have been written on the landscape of northern Thailand. In recent years, as a result of social and demographic shifts, this landscape has once again been reimagined, resulting in new juxtapositions of legal norms and procedures. The analysis in this article focuses on injury and injury compensation. Concepts of injury are inseparable from concepts of the person who can be harmed, and persons . . . are constituted in large part by the places in which they live. Reading the landscape of law thus entails an understanding of the places in which human identity is formed and of the systems of injury remediation that pertain to them. When injury victims locate their mishaps in the physical and social landscape, they determine both the interpretive frames through which their injuries can be perceived and the range of potential responses that are available to them. Mapping an injury connects the event to concepts of legality that are associated with particular social and political spaces. This article explores the landscape of injury in northern Thailand, an area affected in recent years by intense global influences. By examining the connections between injury and place during a time of rapid social change, Abridged from Law & Society Review 43, no. 1 (2009): 61–94.



Dav id M . E n g e l

I hope to demonstrate how the role of the formal legal system can be unexpectedly diminished or even rendered irrelevant as the effects of change are experienced. Law and society theorists have long recognized that multiple systems of law operate in particular locales, despite the assertion of legal supremacy by the nation-state. [T]he state’s effort to enclose a territory and impose legal order upon it can never supplant all other legal orderings and other mappings. Modern law never fully occupies the space over which it claims sovereignty but must inevitably interact with other unofficial or quasi-official legal orders in society. To understand how and why state law is used, according to prevailing sociolegal theory, one must consider its interplay with other normative systems that may or may not have official status. For example, Santos, writing about legal maps, proposes the concept of “interlegality”: “[O]ne cannot properly speak of law and legality, but rather of interlaw and interlegality. More important than the identification of the different legal orders is tracing the complex and changing relations among them” (1995: 464). Yet these theorists typically characterize the interplay between state law and other legal orders as dynamic and emergent, producing new and sometimes unexpected practices within the domain of state law or the transformation and even revitalization of nonstate legality. In this article, by contrast, a close look at the landscape of injury in Thailand suggests a different conclusion: that the process of rapid social and demographic change may have led to the end of interlegality, at least with regard to injury cases. Pathways that formerly connected one legal imagining to another have been obliterated, and the state’s mapping of social and legal space has become disconnected from localized mappings based on “sacred centers.” The severing of links between these two forms of legal mapping in Thailand has profound and counterintuitive implications for the rule of law, secularization, and customary legal practices in a rapidly changing Asian society.

Two Types of Legality in the Imagined Spaces of the Thai Landscape Drawing on research conducted in Chiangmai over a 30-year period, this study suggests that two different kinds of legality were inscribed on the Thai landscape during the nineteenth and twentieth centuries. The first is the legal system associated with the modern Thai state, which imagines space from the outside in. It draws a jurisdictional perimeter around the space it claims. It names the people and objects within that space and defines their relationships, rights, and obligations. It provides institutions and procedures for regulating social interactions—including injuries—within the space it has enclosed. Despite the enormity of Thailand’s legal transformation in the late nineteenth and early twentieth centuries, the everyday lives of ordinary Thai people have always been guided in many significant ways by a second type of legality derived from different concepts of place and personhood. This second kind of legality . . . imagines space from the inside out [and] . . . emanates outward from centers of authority, which are associated with sacred pillars, shrines, temples, villages, trees, and mountains. People’s identities are shaped from birth by the sacred centers, which govern many important aspects



of life and human interaction. Near the center, such legal systems are strongest and can command the acquiescence of persons involved in injury cases, but they weaken with distance as they merge and overlap with other centers and authority figures. By focusing on injuries as social and legal phenomena, it is possible to perceive with some clarity the effects of social change on the relationship between state law and the law of sacred centers and on the conceptualization of persons and the harms they suffer. In this article, injury is defined as the equivalent to the Thai term baat jep, a colloquial and legal expression meaning bodily harm or wound. The interviewees well understood the concept of tangible physical injury and used baat jep to describe the mishaps they had suffered that required medical treatment. In contemporary Thai culture, however, concepts of the individuated self exist in a sometimes uncertain relationship with notions of the person embedded in “community culture” (Tanabe 2002: 43), and similarly, concepts of physical injury overlap with the belief that traumatic harm can cause less tangible sickness of the body and mind and can damage the community as a whole. In some respects, the tangible and intangible aspects of the human personality are inseparable. While retaining a primary focus on physical manifestations of harm, therefore, this article also explores some of the connections between individualized and material forms of injury on the one hand and collective and spiritual effects on the other. It suggests that the social transformations Thailand has experienced have changed these perceptions of injury, person, and the landscape of law.

The Landscape of Sacred Centers Although the customary law of injuries associated with sacred centers has undergone significant changes in recent years, it is still possible to describe its distinctive characteristics and procedures as they functioned before the period of intense social change in the late twentieth century. Households and villages were nodes of social and spiritual interconnection. Residence in these communities conferred identity on humans and spirits and gave a place and a meaning to important events, including injuries. These identity attributes defined the nature of injury itself—what aspect of a human being was harmed when an injury occurred, and what remedy or response was most appropriate for the injury victim and the community as a whole. Particularly relevant to an understanding of injuries were the components of identity known as khwan and winyaan. The first identity attribute, the khwan, is a flighty spiritual essence found in all living beings and in some natural objects such as rice fields, mountains, and even automobiles. When an individual suffers fright, trauma, or physical injury, it is said that the khwan flies out of the body, and a ritual . . . must then be performed to recall the khwan and bind it in the body by tying a sacred string or thread around the wrists. Recalling the khwan of an injured person was seen as essential to repair the fabric of the community. Significantly, the payment made by the injurer was—and still is—referred to as “payment for the khwan.” Because each injury had this communitarian dimension, compelling the payment of injury costs was assumed to be essential to the preservation of village society.


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The second component of human identity that is relevant to this discussion of injuries is another type of spiritual essence known as winyaan. More durable than the khwan, the winyaan leaves the body only at the time of death. Buddhist rituals to make merit for the winyaan can ensure its progression toward a favorable future life, and ultimately the winyaan should undergo reincarnation; but when death results from an injury, there is a danger that the winyaan will remain at the spot of the fatality. When a violent or unnatural death (taai hoong) occurs, the winyaan that is allowed to linger at the location becomes the most dangerous type of ghost (phii taai hoong). It waits until other humans come near in order to sicken or kill them, so that a new winyaan will take its place and it can continue its normal path in the cycle of birth and rebirth. Thus, when violent or unnatural deaths occur, it is imperative that a ritual be performed to prevent this type of dangerous and malevolent ghost from being created. Interviewees recalled that paying the cost of these merit-making ceremonies in cases of abnormal death was an obligation assumed by the injurer. The entire village had an interest in enforcing this obligation, since everyone was put at risk by the dangerous and malevolent phii taai hoong. In sum, the remembered mapping of injuries onto the landscape of northern Thailand began with traditions located in households and villages. In proximity to those geographical centers, individuals acquired an identity and a status, and they fell under the protection of territorially based authorities—both human and supernatural—who could interpret the cause of injuries, identify the transgressions that caused them, and enforce the payment of compensation. Injuries within the community disrupted social harmony and threatened the well-being of all. Village elders, including the village or subdistrict chief, served as agents of human authority to compel the payment of compensation. The weakening of the law of sacred centers became more pronounced as individuals traveled farther from home, toward other villages and towns. Injuries far from home presented [a] problem: the difficulty of negotiating a remedy. When both parties lived in the same village, the village chief or subdistrict chief (kamnan) could remind them of local norms and expectations for paying compensation after an injury took place. But when injuries occurred on the highway, the parties were likely to have been strangers to one another and may have found themselves without a mutually acceptable mediator. In such cases, injurers who disagreed about their obligation to pay compensation might discover that there was no authority figure to compel them to change their minds. In legal spaces where authority radiates outward from a sacred center, the more distant a location is from the center that holds significance for the disputants, the more problematic enforcement becomes. Yet even in the imagined landscape familiar to preceding generations, many causes of injury were not locality-based and could not be mapped at all. For example, karmic explanations of injury, which often appeared in combination with other explanations, were not place-specific. They referred to the injured person’s own misdeeds, either in this life or in an earlier life. The injury was thus a consequence of actions the injury victim had previously directed at the injurer or at another person or even an animal.



All  .  .  . delocalized causes of injury [like karma]  .  .  . had one thing in common: none of them, except perhaps the injurer’s negligence, was associated with a remedy of any kind, or at least a remedy that the injurer was obliged to provide.

Interrelationship of Two Legal Geographies—A History of Interlegality The recollections of the interviewees in this study make it possible to reconstruct the landscape of injuries in northern Thailand in the period before the effects of globalization intensified. Etched on the strikingly beautiful terrain were two different conceptualizations of space and law—one supported by the authority of the state and the other by the authority of sacred centers. These two different forms of mapping interacted in distinctive ways. When injury cases arose in village settings, they were most often resolved by local authorities, particularly the village chiefs. Local leaders could invoke unofficial customary law to compel injurers to pay compensation by citing norms associated with village guardian spirits. They could also cite “modern” law and promote settlements with reference to the norms and procedures—and risks—of the official legal system. Thus, the two types of legality converged in this type of mediation, marking a point of intersection between the two maps. In the last decades of the twentieth century, however, it appears that these patterns of “interlegality” underwent significant change. The number of litigated cases per injury diminished greatly. In effect, therefore, the rate of tort litigation (lawsuits per injury) declined sharply toward the end of the century. This was dramatically true of private criminal cases, which declined from 8.25 per year in the earlier period to only 1.33 per year in the later period. Interview data substantiated the inference that interlegality—movement back and forth between local customary law and “modern” law—was all but nonexistent in the 1990s. None of the hospitalized injury victims interviewed in 1998 pursued a legal remedy. None consulted a lawyer. None considered bringing a tort or private criminal action. State law was strikingly absent from their thoughts and actions. The convergence of state law and the law of sacred centers and the interplay between these two types of legality had all but disappeared. During the 1980s and 1990s, Thailand experienced dramatic social, economic, demographic, and cultural changes as a result of intensified global influences. As these changes took place, the landscape of injuries in northern Thailand was transformed in two significant ways, both of which affected the relationship between state law and the law of sacred centers. First, because people in northern Thailand tend to live and travel away from their birth communities, injuries have become increasingly relocalized. That is, injuries no longer occur near a sacred center that is known and respected by the injurer and his or her victim. Instead, most injuries now occur far from home, near other, less-familiar centers or outside the reach of any form of customary legal ordering. [I]njuries are not viewed as a matter of concern to all the humans and spirits in a particular location. There is no community that demands a resolution. Loss of the khwan no longer has implications for the rest of the community. Behavior that injures the individual no longer offends the guardian spirits of the village. Compensation


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obtained, or not obtained, from the injurer to restore the physical, psychological, and spiritual well-being of the injured person no longer affects others who live nearby. [T]he linkages between individuals and sacred centers have been weakened. The second transformation of the landscape of injuries is apparent in the pervasive tendency to view injuries in terms of their delocalized qualities. That is, the causes that are “off the map” [such as karma and fate] have become highly significant in the perceptions of injury victims, and injuries are often viewed as lacking any locational significance whatsoever. Malevolent ghosts are still thought to cause injuries in particularly risky places. But when injuries occur far away from the view of village guardian spirits, their mapping becomes less consequential and therefore of less interest to the parties. The delocalization of injuries—the tendency to offer explanations that cannot be mapped—may be part of a broader shift in the ontology of Thai belief systems. Observers of contemporary Thai society have noted an enormous growth in the popularity of delocalized deities, who can affect human lives but are not tied to a particular spatial location or sacred center. Worshiping such figures can bring good luck and protection. Failing to worship them properly can bring loss of protection and injury. But these mobile, delocalized spirits do not provide access to any official or unofficial legal system that would require the payment of compensation when injuries occur. In sum, both the relocalization and delocalization of injuries entail a subtle but highly significant shift in the conceptualization of why injuries occur and what should be done about them. Together, they tend to reduce or eliminate the role played by the law of sacred centers. They make it less likely than ever before that any system of customary law will hold the injurer responsible and require the payment of compensation to the injury victim. Instead, they reinforce interpretations of injury that place the ultimate responsibility for accident prevention on the victim him- or herself. With the atrophy of customary mechanisms for compensation, and with the relocalization of injuries far from the traditional sacred centers and the delocalization of injuries off the map entirely, injured persons look to themselves and their immediate family to manage their physical and spiritual recovery.

The Lost Path to Law How have the processes of relocalization and delocalization changed the relationship between the two maps of injury and identity? Previously, as we have seen, the two maps coexisted and interacted in relatively predictable ways. Neither supplanted the other, and individuals who had been injured could draw on both types of legality to frame their experiences and seek a remedy. Occasionally, injured persons would even follow a pathway from the law of sacred centers to the institutions of state law. Official law did not violate religious teachings because it was seen as an extension of village-level customary practices, albeit an option that was risky and seldom invoked. Interconnections of this kind between two types of legality are not surprising, and in fact, as we have seen, they are predicted by sociolegal theory. What may be



surprising, however, is the discovery that recent changes in Thai society have reduced the process of interlegality in injury cases almost to the vanishing point. Although one might expect injured persons to turn increasingly to state law for the remedy that customary law can no longer provide, I have suggested in the previous section that such has proved not to be the case, and the court is, in effect, used less frequently per injury today than in the past. Thai legal scholars and longtime personal injury lawyers could not point to any change in the formal law of injuries from 1975 to 2000 that might account for the diminished probability that the law would be invoked in an injury case. Two explanations emerge with some clarity from the injury narratives offered by the interviewees. First, it is evident that injured people increasingly perceive an oppositional relationship between law and religious belief. As a result of the relocalization and delocalization of injuries, customary remedial practices are no longer efficacious, and religiosity in its more recent forms is now positioned in opposition to the law of courts and lawyers. Religion, especially belief in karma, is often cited by injured persons as a compelling reason to seek no compensation whatsoever and to reject the law. The aggressive pursuit of a remedy rather than a generous act of forgiveness would tend to produce more strife and suffering in the future. This is a new way of thinking about Buddhism, which was formerly understood to be consistent with village-level beliefs and practices that justified—and to some degree required— the search for compensation, even if that search led injury victims on rare occasions to a court of law. The second explanation, also connected with the processes of relocalization and delocalization, is the individuation of injury. The very concept of an injury and the identity of the person who suffers it have undergone a transformation. The loss of the khwan, for example, has always been, in some sense, an individualized, delocalized occurrence, yet within the village it can be seen as holding great significance for an entire geographically specific community. In the village context, the khwan is said to fly away to the forest. [H]owever, because the victim now lives far from the sacred center of his or her birth, the communal and locational aspects of the injury have disappeared. The khwan may drop from the body at the place where the accident occurred, but that place is not located within a community of humans and spirits, and the khwan is no longer described as flying away to the forest near the village. No one views the loss of the khwan as a concern to anyone but its owner. As a result of this individualization of injury and of the identity of the injury victim, there is no community interest in recovering the khwan, and there is no set of customary legal practices that can be mobilized to compel the injurer to pay khaa tham khwan. If the injured person seeks payment for the khwan, he or she must find some other mechanism to obtain it. As a result of these changes in the concepts of society, self, and the law, the maps of injury and identity in northern Thailand have been transformed. Pathways that formerly connected the map of sacred centers to the map of state law have all but disappeared. Injury victims in this study no longer viewed their misfortune in the context of a viable system of customary law, nor did they consider the provincial court a


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forum of last resort, where customary claims could be enforced. Interlegality, the interconnecting of the two types of maps in the imaginations and actions of injury victims, now occurs only in the sense that each map denies the relevance of the other. State law, from the karmic perspective, represents a denial of the transcendent reality of cause and effect, a wrongful choice by which an injured person will perpetuate the problem of injury rather than resolving it through compassion and forgiveness.

Conclusion [T]he aggressive pursuit of an injury payment is now understood to compound the problem rather than solving it. If injuries arise from the bad karma of the injury victim, then things are more likely to improve—and future harm is less likely to occur— if the victim displays generosity and forgiveness rather than demanding a remedy. To bring a claim within the system of state law now seems to contradict deeply held beliefs and cultural values rather than to reinforce customary practice. With the process of delocalization, injuries have disappeared from both legal maps, and the linkages between the maps have been shattered. One might expect the impact of globalization to have been different. One might think that the weakening of customary law would have led greater numbers of claimants to invoke state law, but this does not appear to have occurred—at least not for cases involving injuries. The patterns of interlegality that were formerly evident have all but disappeared. The pathway to state law has been lost.


Truth, Reconciliation, and the Creation of a Human Rights Culture in South Africa James L. Gibson

South Africa’s truth and reconciliation process was surely the most ambitious the world has ever seen. Not only was the Truth and Reconciliation Commission (TRC) charged with investigating human rights abuses and granting amnesty to miscreants, but the process was expected as well to contribute to a broader “reconciliation” in South Africa (the “reconciliation” half of the truth and reconciliation equation). In a country wracked by a history of racism and racial subjugation, and one just emerging from fifty years of domination by an evil apartheid regime, doing anything to enhance reconciliation between the masters and slaves of the past is a tall order indeed. [H]owever, the truth and reconciliation process was also given the task of building a political culture in South Africa that is respectful of human rights. The process was backward-looking in the sense of being expected to document and deal with the gross human rights violations of the past, but it was also forward-looking in trying to prevent future tyranny. Its assignment was to nurture a human rights culture that would serve as a prophylactic against rights abuses in the future. Has South Africa made progress in developing a culture supportive of human rights? How widespread are such values? Are they concentrated within any particular strata within the South African population? How have these values changed? Why have they changed? Did the truth and reconciliation process itself have anything to do with how ordinary South Africans judge and value basic human rights? [T]he question is one of social learning and cultural change. Presumably (because rigorous data on the matter are not available), the old South Africa was one in which human rights abuses were tolerated if not accepted. The TRC was expected to change people’s attitudes and values, to teach them that human rights must be inviolable, to frame human rights as an issue essential to successful democratization. Though those who wrote the enabling legislation may not have had large-scale cultural engineering in mind when they spoke of creating a human rights culture in South Africa, social science theories certainly endorse the importance of such a culture and offer at least some clues about how it might be created. Abridged from Law & Society Review 38, no. 1 (2004): 5–40.



James L. Gibson

This article has several purposes. First, it asks whether the contemporary political culture of South Africa is supportive of human rights. Second, I then investigate the distribution of support for human rights, beginning with the always important racial differences. I assess whether there is any evidence that the truth and reconciliation process itself has had an impact on support for human rights in South Africa, especially since awareness of the TRC’s activities seems to have penetrated all corners of South African society. Finally, I examine a variety of additional hypotheses. In the end, I draw the conclusion that, even though South Africa remains quite a distance from a culture in which human rights are highly regarded among all segments of the mass public, the truth and reconciliation process may well have contributed to creating a human rights culture in the country.

The Meaning of a Human Rights Culture What those who wrote the law creating the TRC meant by the term human rights culture is not entirely clear, primarily because so many different meanings are packed into the term. The values incorporated within the concept human rights seem to include political tolerance, rights consciousness, support for due process, respect for life, support for the rule of law, and even support for democratic institutions and processes more generally. An appropriate apothegm for the meaning of a human rights culture in South Africa is perhaps everything that the apartheid regime was not. Social scientists must of course take the concept more seriously and treat it more systematically and rigorously. One simple distinction, hinted at already, is that human rights can be enhanced by certain institutional structures (e.g., an independent judiciary) and by certain political attitudes and values held by ordinary people within the policy. Institutions and cultures are two separate entities, and the question of whether one reinforces and supports the other is a vital empirical question. Political scientists have used the term culture to refer to the politically relevant beliefs, values, attitudes, and behaviors of ordinary citizens. Democracy—and human rights—is about more than just institutions. “The transformation of democratic forms into democratic norms . . . is crucial for democracy to take root” (Hoffmann 1998: 148). Thus, one way of looking at the question of whether South Africa has developed a culture respectful of human rights is to examine the attitudes and values of ordinary South Africans. How much value do ordinary people attach to human rights? But just exactly what attitudes and values are central to human rights? One can imagine a long list of values, but  .  .  . [i]n this article, I focus primarily on support for the rule of law. I do so because a cardinal foundation of human rights is the idea that authority must be subservient to law. Law certainly does not “guarantee” human rights—rights are often lost through entirely “legal” means, and legal “guarantees” may be ultimately dependent upon political forces—but without law, citizens



are dependent upon the beneficence of authorities. Unless South Africa can develop a culture respectful of the rule of law, it is difficult to imagine that human rights can prosper.

The Meaning of Support for the Rule of Law According to extant research on public attitudes toward the rule of law, the essential ingredient of this construct is universalism—law ought to be universally heeded, that is, obeyed and complied with. To the extent that law generates an undesirable outcome, law ought to be changed through established procedures, rather than manipulated or ignored. Thus, willingness to abide by the law is pivotal to the concept. The antithesis of universalism is particularism, based typically on either expedience or the substitution of some sort of moral judgment for legality. Respect for the rule of law thus means that following the law (universalism) is accorded more weight than other values that might trump legality, such as expediency or even fairness. “Rule of law” is a concept typically applied to the state. But . . . the concept refers to both the citizen and the state. Just as the authorities ought to be constrained by legality in a law-based regime, individual citizens must respect the rule of law in their own behavior. Further, though rule of law is most likely necessary for democratic government, it certainly is not sufficient. The rule of law may be enlisted by both dictatorial minorities and tyrannical majorities. Finally, rule of law has meaning as an attribute of institutions, of cultures, and of the belief systems of ordinary citizens. This last point describes the empirical focus of this research. [T]he historical legacy of apartheid is not one that contributes much to the rule of law. Nor were all elements of the liberation forces particularly devoted to the rule of law. Though the liberation forces were not as cavalier as the apartheid state when it came to setting law aside, the rule of law was clearly a casualty of the liberation struggle. [L]ittle in South Africa’s past suggests that the rule of law would be a deeply cherished value. The TRC consequently was presented with a difficult task of building a human rights culture in South Africa respectful of the rule of law.

Research Design This analysis is based on a survey of the South African mass public conducted in 2000–2001. The fieldwork began in November 2000, and “mop-up” interviews were completed by February 2001. The sample is representative of the entire South African population (ages eighteen and older). A total of 3,727 interviews were completed. The average interview lasted eighty-four minutes (with a median of eighty minutes). The overall response rate for the survey was approximately 87%. Such a high rate of response can be attributed to the general willingness of the South African population


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to be interviewed, the large number of callbacks we employed, and the use of an incentive for participating in the interview. Most of the interviewers were women, and interviewers of every race were employed in the project. Most respondents were interviewed by an interviewer of their own race.

The Nature of South African Support for the Rule of Law I asked the South African respondents to express their agreement or disagreement with four statements measuring support for the rule of law (with the response supportive of the rule of law following in parentheses): 1. Sometimes it might be better to ignore the law and solve problems immediately rather than wait for a legal solution. (Disagree) 2. It’s alright to get around the law as long as you don’t actually break it. (Disagree) 3. In times of emergency, the government ought to be able to suspend law in order to solve pressing social problems. (Disagree) 4. It is not necessary to obey the laws of a government that I did not vote for. (Disagree) These measures do not, of course, represent all possible facets of the rule of law. In the analysis that follows, I use the term rule of law, but in every instance I mean legal universalism—whether “law ought to prevail unless there are severe exigencies to the contrary” or whether “law is something to be manipulated or ignored in pursuit of one’s own self interests (variously defined)” (Gibson and Caldeira 1996: 60). The first thing to note about [the results] is that generally, support for the rule of law is not particularly widespread in South Africa. A majority of South Africans believe it is okay to get around the law so long as the law is not broken (Item Two); that in an emergency law should be suspended in order to solve social problems (Item Three); and that a plurality would ignore the law if necessary to solve problems immediately (Item One). Only on the issue of whether one should obey a law passed by a government that one did not vote for (Item Four) does a majority in support of the rule of law emerge. In general, the respondents are quite divided in their judgments of the importance of the rule of law, with South Africans strongly committed to legal universalism constituting a minority in their country. [S]ignificant racial differences exist in the responses to each proposition. Based on the mean replies, African South Africans are in every instance least likely to support the rule of law. Conversely, whites are the most likely to endorse the rule of law. The differences are in some instances quite substantial, as in the statement that it is okay to get around the law if you do not actually break it: 60.6% of the white respondents disagree with this statement, while only 27.4% of the black Africans are similarly inclined. In terms of the number of these rule-of-law propositions endorsed, whites expressed support for 2.4 statements, those of Asian origin supported 1.8 statements, Coloured people 1.7 statements, and Africans on average voiced support for the rule



of law regarding only 1.4 of these items. These are fairly large and substantively significant racial differences. It is particularly troubling that support for the rule of law is so limited among the African majority. The South Africans, however, are not especially distinctive in their rejection of the rule of law. There can be no doubt that South African political culture is characterized by less support for the rule of law than American culture but, when compared with Europeans, the South Africans do not stand out as unusual in their commitments (or lack thereof) to law.

Support for the Rule of Law and the Truth and Reconciliation Process To what degree are contemporary attitudes toward the rule of law related to the activities of the truth and reconciliation process? I pursue two approaches to answering this question. First, I consider whether support for the rule of law in the aggregate has increased, based on a comparison between these 2001 data and an earlier comparable survey we conducted in South Africa in 1996. Second, I investigate whether the cross-sectional evidence is compatible with the conclusion that the truth and reconciliation process shaped attitudes toward the rule of law. Change in South African Attitudes toward the Rule of Law Because these same statements were put to a representative sample of South Africans in 1996, I can compare the responses in 2001 to those five years earlier. Nothing in Table 32.1 supports the conclusion that the rule of law has become more firmly established in contemporary South Africa. In nearly every instance, the mean scores in 1996 and 2001 are quite similar. Indeed, from a statistical point of view, the proper conclusion is that there has been little change in attitudes toward the rule of law between 1996 and 2001. Table 32.1 Change in Support for the Rule of Law Percentage Supporting Rule of Law

Support for the Rule of Law

Agree-Not Support




Std. Dev.
















Better to ignore law, solve problems


James L. Gibson

Okay to get around law if don’t break it 1996










































In emergency, suspend law, solve problems

Not necessary to obey laws I didn’t vote for

Note: The percentages are calculated on the basis of collapsing the five-point Likert response set (e.g., “agree strongly” and “agree” responses are combined) and total across the three rows to 100% (except for rounding errors). The means and standard deviations are derived from the uncollapsed distributions. Higher mean scores indicate greater support for the rule of law.

The Influence of the TRC In order for the truth and reconciliation process to influence attitudes toward the rule of law, people must have been attentive to the Commission and acquired some awareness of its activities. A necessary condition for influence may be awareness. In addition, it is reasonable to hypothesize that those with greater confidence in the TRC are more likely to endorse the rule of law. Finally, those who accept the findings of the TRC—the “truth” or collective memory produced by the TRC  .  .  . —are also expected to be more steadfast supporters of legal universalism. In order to test these hypotheses, I regressed rule of law attitudes on three indicators of the respondents’ understanding of the TRC: awareness of its activities, confidence in the Commission, and acceptance of the TRC’s truth about the country’s apartheid past. I also included two control variables—the extent of media consumption and interest in politics in general—so as to try to more carefully pinpoint the influence of the truth and reconciliation process itself, as compared to more general media use and political awareness. The most important conclusion [from this statistical analysis] is that, in general, those who accept the truth as produced by the TRC are more likely to support the rule of law. [F]or the vast majority of South Africans, endorsing more of the TRC’s truth is related to a stronger acceptance of the need for universalism in law. This finding requires further explication. In particular, what specifically is the connection between accepting the TRC’s truth and valuing the rule of law? The two variables are no doubt linked by the Commission’s insistence on applying rules and principles of human rights equally to all combatants in the struggle over apartheid. It is the TRC’s insistence on universalism—judging all sides in the struggle according to



the same criteria—and its unwillingness to accept arguments to the effect that ends justify means—that a “just war” can excuse violations of the rule of law—that cement the truth-legal universalism relationship. I admit that causality is always difficult to establish (especially with cross-sectional data), but the TRC’s lesson is that law (human rights) must be respected by all, and those accepting that lesson are more committed today to universalism in the application of the rule of law in South Africa. Still, it is debatable whether the activities of the TRC have actually caused these attitudes, since the [associations] for knowledge and confidence in the TRC are weak or trivial for all of the groups. In no instance is greater awareness of the activities of the TRC significantly related to attitudes toward the rule of law. Understanding the [statistical results] linking confidence in the TRC to rule-of-law attitudes presents some challenges. For whites, greater confidence is related to more support for the rule of law, as predicted. But for the African majority, the relationship is negative: Those expressing more confidence in the TRC are less likely to support the rule of law. The inverse relationship presents a conundrum for the hypothesis. Perhaps for some Africans the TRC itself actually represents a violation of the rule of law. After all, the TRC’s main job is to override the traditional criminal law that would punish people for their criminal deeds. One who believes that law ought to be universally applied, irrespective of the consequences, would surely find it difficult to support letting some of South Africa’s most notorious criminals go free after admitting their heinous crimes. Perhaps the meaning of this coefficient among Africans is that those predisposed toward the universal application of law have found it difficult to have confidence in the TRC, even though they paid attention to the activities of the Commission and accepted some of its conclusions about South Africa’s apartheid past. It is noteworthy, however, that whites seem not to be influenced by the same processes, since commitment to the rule of law is positively (and significantly) related to confidence. This is all the more surprising once the stronger commitment of whites to the rule of law is recalled. Perhaps whites who express confidence in the TRC do so in part because they view the Commission as legally constituted and, in the end, at least somewhat rule-bound in its proceedings (even if occasionally forced to adopt such rules by litigation and court judgments). Still, many whites condemned the TRC for engaging in a “witch hunt” (whatever the truth of the matter), so one might have expected that this coefficient would be negative, with the rule-of-law supporters expressing less confidence in the TRC. Though the relationship is weak, the data indicate otherwise. Political interest and media consumption do not affect attitudes toward the rule of law among Africans or those of Asian origin. Among whites and Coloured people, greater interest in politics is associated with greater support for the rule of law. It is difficult to understand all of these individual coefficients. The important thing to note, however, is that the effects of the variables concerning the TRC are not dependent upon a person’s level of interest in politics and the magnitude of her or his media consumption. Thus, I have unearthed some evidence that the truth and reconciliation process may have shaped attitudes toward the rule of law in South Africa. Those who accept


James L. Gibson

the truth about South Africa’s past as promulgated by the TRC are more likely to endorse the rule of law. For three of the four groups (and thus for the vast majority of South Africans), these relationships are reasonably strong. The causal processes involved remain a bit murky . . . [b]ut at a minimum, I confidently conclude that truth acceptance and respect for law go together in South Africa. And even if the truth and reconciliation process has not caused enhanced support for human rights, little evidence indicates that the process has significantly undermined respect for the rule of law.

Other Processes Contributing to Support for the Rule of Law Factors other than the activities of the truth and reconciliation process may well have shaped South Africans’ attitudes toward the rule of law. For South Africans of every race, law seems to be perceived as a mechanism for preventing the majority from getting what it wants. Those who believe in strong majoritarianism are much less likely to believe in legal universalism. Generally, those holding more conciliatory racial attitudes are more likely to support the rule of law. The effect of these two variables—racial reconciliation and majoritarianism—may indicate that commitments to the rule of law are to some degree instrumental rather than principled. The rule of law seems to be associated with the interests of the minority (however that minority is defined), presumably because the majority can protect itself with power, without the need for recourse to law. It is worth noting that many factors have no influence whatsoever on attitudes toward the rule of law. Particularly interesting is the finding that having been harmed by apartheid has no effect on legal attitudes. When put together with the evidence that accepting the TRC’s truth does shape attitudes, this seems to suggest that attitudes have been shaped more by learning about the past than experiencing it. Also surprising is the finding that perceptions of crime have little if any influence on attitudes toward the rule of law. A host of demographic variables has little or no influence on legal attitudes. Urban-rural differences, social class, age, opinion leadership, and education and literacy generally have very small effects at best. The effect of race  .  .  . however, is quite different. [E]ven when one takes into account feelings about majoritarianism, truth acceptance, and racial reconciliation, whites and South Africans of Asian origin are more strongly committed to the rule of law than are Africans.

Discussion and Concluding Comments I have adduced some evidence that the TRC has had an influence on attitudes toward the rule of law through its exposure of the abuses of law under the apartheid regime and through its demonstrated commitment to the universal application of principles of human rights. [A]ttitudes toward the rule of law have much to do with beliefs



about the relationship between majorities and minorities in South Africa. Supporters of the rule of law seem to endorse weaker forms of majoritarianism and stronger forms of minoritarianism and to hold more tolerant attitudes toward South Africans of different races. This last point deserves considerable emphasis. Rather than reflecting concrete experiences, either contemporaneous experiences with crime or historical experiences with apartheid, attitudes toward the rule of law instead reflect more basic democratic values. Those who have not learned the complex lessons of democracy have also failed to learn about the importance of the rule of law. This seems to imply that, for some, law is politicized in South Africa. Rather than being a means of protecting all South Africans from arbitrary and abusive action, law may be seen as means of protecting the privileged minority. I suspect that some South Africans view law as a means by which whites maintain their hegemony in South Africa. If so, this is an important, and ominous, finding. It may well be that since South Africans have had little experience with legal universalism, they have yet to learn of its value. The TRC seems to have had some influence on attitudes toward law, although I admit that the evidence of causality is not as strong as it might be. By exposing people to the consequences of arbitrary government not constrained by law and by judging all sides in the struggle according to the same criteria, the truth and reconciliation process may have deepened and widened respect for law. [A] central problem of all new democracies, South Africa included, is minoritarianism. South Africans are deeply intolerant of political differences; many have not accepted the virtues of the liberal half of the liberal democracy equation (majority rule + minority rights). Still, it is perhaps surprising that the rule of law is associated with minoritarianism—one might have guessed that the universalism of law would be attractive to everyone. Instead, it seems that intolerance, strong majoritarianism, and disregard for the rule of law go together in the minds of many South Africans. This is not a formula for successful consolidation of democracy and the protection of human rights. South African democracy is still in its infancy. South African political culture was deeply scarred by apartheid, with vestiges of antidemocratic attitudes and practices that will take generations to overcome. Whites have surrendered but a small portion of their privileges, and they continue to dominate economically and socially, if not politically. Thus, from this perspective, it is perhaps extraordinary that so many South Africans hold law in any regard at all and that they are willing to set their immediate interests aside and accept legal processes and outcomes. Broadening and deepening the respect with which law is held by ordinary South Africans should be among the highest priorities for those committed to a more democratic future for the country.

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Rights, Religion, and Community Approaches to Violence against Women in the Context of Globalization S ally E ngle Me rry

As concern about gender violence mounts globally, it is increasingly viewed as a serious human rights violation subject to legal intervention. The battered women’s movement, centered in Europe and North America, has pressed police and courts to view gender violence as a serious crime and has encouraged women to see themselves as having the right not to be hit. The movement has fought for new laws to punish batterers and to provide protective orders. As the global debate expands, particularly in United Nations (UN) meetings such as the UN Special Session, called Beijing Plus Five, in 2000, the Commission on the Status of Women meetings, and the Human Rights Commission meetings, there are some who are arguing for different kinds of approaches. Religious and indigenous approaches represent two major challenges to a global rights-based approach to violence against women. This is a manifestation of a more general contest between those who advocate secular legal approaches to social justice and those who promote religious or ethnonational ones. In order to understand the differences among these competing models, I studied three approaches to gender violence—one based on rights, one on religion, and one on community—coexisting in Hilo, a small town in Hawai‘i. I focused on a feminist batterer intervention program (Alternatives to Violence [ATV]), a Pentecostal Christian church, and an indigenous Hawaiian form of family problem-solving called ho‘oponopono. I was intrigued by how differently each group defines the problem of gender violence and its elimination and how differently each envisages ideal gender relationships. The first, based on feminism and a concept of rights, foregrounds women’s safety and advocates an egalitarian gender order. Women who are in danger are encouraged to separate from their partners. Husbands and wives are taught to negotiate decisions with the promise of increased trust, love, and sexual pleasure for men who refrain from violence. This approach criminalizes the batterer and encourages the victim to think of herself as having rights not to be beaten regardless of what she does. The second, growing out of conservative Christian notions of salvation, healing, and the authority of Biblical texts, uses a process called scriptural counseling based Abridged from Law & Society Review 35, no. 1 (2001): 39–88.



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on Biblical quotations. This church stresses gender complementarity and firmly resists divorce. The ideal family is under the authority of the husband, who is in turn under the authority of God. The Christian model teaches women to submit to their husbands, to turn away wrath with gentle words, and to pray to dislodge demons that hide in strongholds created by resentment, grudges, and hostility. The third, ho‘oponopono, which descends from an ancient Native Hawaiian family problem-solving process, recently revalorized as part of a broader renaissance in Native Hawaiian values and cultural practices, is based on concepts of repentance, forgiveness, and reconciliation. It emphasizes the family and the community’s responsibility for conflict. Though the process seeks reunification of a family experiencing conflict, an unrepentant person can be exiled from the family altogether. In this model, ideally, husband and wife should treat each other with mutual respect. The Native Hawaiian process emphasizes the value of every person as a child of God and the importance of treating others in one’s family with respect and forgiveness for wrongdoing. As I traced the formation of each group and the development of its conceptions of gender violence, I realized that each drew on an imported set of ideas about violence and gender, translated into the local context. I [also] noticed a surprising similarity in their technologies of personal transformation. All emphasized making choices and holding people accountable, knowing and controlling feelings, and building selfesteem for those who batter as well as for their victims. In all three settings, men and women were told they could make their own choices about how they feel, how they view situations, and how they respond to them. They were encouraged to be responsible for their choices. Clients were given names for feelings and encouraged to recognize these feelings as a way of managing them. They were encouraged to develop self-esteem. [D]espite their wide ideological divergence, all approaches focused on the entrepreneurial creation of the self. At the heart of the competition among rights, religion, and community was a shared practice of self-creation: a technology associated with the creation of the modern subject. Why then did such disparate approaches converge on similar technologies of the self? I think that, in establishing a program and gathering clients, each was driven in a different way to adopt self-management as a solution to the problem of gender violence. The need for financial support—for clients or members—led these organizations to professionalize their leadership, tone down their rhetoric, and develop reform programs that seemed reasonable to their leaders and funders. As they sought to protect women from male violence, leaders and funders alike turned to psychotherapeutic techniques of self-management as familiar strategies for accomplishing this goal.

Gender Violence in Windward Hawai‘i Hilo is a small port city of about 45,000, serving a sprawling agricultural region and providing a hub for governmental, educational, medical, and retail services, as well as some tourism. In the late 19th and early 20th centuries, the entire windward coast of the island of Hawai‘i, where Hilo is located, was converted to sugar plantations



manned by sugar workers from Europe and Asia. The children and grandchildren of these plantation workers are now prominent in education, government, and the judiciary. The plantations are now disappearing, replaced by massive unemployment and a new economy of tourism. This is a postindustrial, postplantation society. There is now a significant population engaged in the production of marijuana on fertile and wellwatered soils. There was always a population on the fringes of the plantation economy: families living on the beaches, people who survive by hunting, fishing, and occasional construction jobs, along with welfare, and people who supplement their incomes by growing marijuana. Many rural and some urban residents share a culture of guns, drugs, fishing, and hunting; for some portion wife beating is a natural way of life. The number of cases of violence against women in the courts in Hilo has expanded dramatically over the past 25 years, particularly during the early 1990s. The dramatic increase in the number of court cases of wife beating probably reflects an increase in battering, but it also shows a major increase in help-seeking from the law. In most cases, the victim has taken the initiative to call the police for help or to ask the Family Court for a restraining order. If there is an arrest, the victim must usually provide evidence for the prosecution. Thus, this burgeoning caseload indicates a new understanding of the meaning of gender violence as a crime and a willingness by victims to complain to the police and to seek restraining orders. This research covers changes in the feminist violence control program between 1991 and 2000 and the simultaneous shifts in the church approach and the Native Hawaiian program. It is based on ethnographic observations of the feminist programs for men and for women as well as ho‘oponopono and church services. I also conducted extensive interviews with practitioners in each process as well as with referral sources, such as the probation department and courts.

Rights: The Alternatives to Violence Program Feminist Beginnings Rights are fundamental to the feminist violence control program in Hilo. It originated from mainland U.S. feminism of the 1970s and the work of battered women in Duluth, Minnesota, who developed an approach to battering embodied in a diagram called the power/control wheel. The feminist movement of the 1970s was concerned with power differentials between men and women and targeted the problems of rape and domestic violence by men against women as critical to maintaining women’s subordination. Early in the battered women’s movement, activists turned to the law as a strategy for eliminating violence, advocating tougher laws and more active policing, prosecution, and punishment. During its first decade (1986 to 1996), the Alternatives to Violence program in Hilo closely followed the feminist approach developed in Duluth. Participants were separated on the basis of gender. The men’s group provided training in violence control; the women’s group offered support and encouragement to assert rights. During this period, the staff was mostly formerly battered women without professional degrees. They saw the program as a movement to transform society through empowering women.

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The women’s support group was organized around the trope of the family, with the law portrayed as a source of help and support, while the men’s program adopted the trope of the school and the prison, requiring attendance, demanding homework, and threatening jail for failure to attend. Men were required to come on time and stay until the end of each meeting, a technique designed to hold men accountable. Men experienced the groups as coercive, frequently talking about the risk of jail for failure to attend or for using violence against their partners. The facilitators encouraged this perspective, frequently observing that the men were there because they had committed a crime and the court required them to attend. Failure to participate meant repeating the program. The men were aware that ATV made reports to judges and the Child Protective Services. The law was always present in the room as a threat. One man, complaining about a facilitator’s confrontation after a negative safety check, described himself as sitting in the room behind bars. In the mid-1990s, the ATV program changed substantially for a variety of reasons, which eroded its privileged status within the judiciary, its major funding source. The early egalitarian feminist organization was gradually replaced by a more hierarchical structure. The program also moved away from its commitment to treat men and women differently. In 1997, ATV initiated two new programs for women, both of which were designed to provide anger management and violence control instruction in all-women groups. By 2000, ATV was running a parallel curriculum in the men’s programs and the women’s programs so that both partners would simultaneously hear the same ideas about intimidation, sexual abuse, and the management of violence. In 1998, the program for men was substantially redirected toward a new model, called Healthy Realization. It was first introduced to the staff by a psychotherapist from Honolulu, who provided a day of training at a staff retreat. This is a more supportive approach to batterer retraining, which encourages men to build self-esteem. It draws heavily on conceptions of being mentally healthy and focuses on improving a person’s level of psychological functioning. Men are no longer challenged and told they are criminals but are asked how they feel and what they think is good about themselves. Facilitators try to emphasize positive features. Since the late 1990s, ATV has shifted from seeing gender violence largely as the result of oppression to viewing it as a characteristic of individual psychological functioning. In place of a theory that battering is the product of patriarchy, the program sees battering as the result of low self-esteem and an inability to understand feelings in a society that allows men to express their self-doubt violently. The new approach is part of a broader psychotherapeutic theory of human behavior, widespread on the U.S. mainland as well as globally. Program strategies focus on building men’s self-esteem and looking for their strengths as well as communicating that battering is wrong and that men and women are equal. The analysis of structures of domination has become far less prominent. The Duluth model and the power/control wheel are still there, supplemented by more therapeutic techniques. That women have the right not to be hit regardless of their behavior remains an important part of the discourse, but the agency now recognizes that women, too, have anger issues. Women are more likely to talk about empowerment, courage, and being a survivor than having rights.



Religion: The New Hope Christian Fellowship Pentecostal Beginnings Religion is one of the major alternatives to the feminist, rights-based approach to gender violence. The New Hope Christian Fellowship in Hilo belongs to the Foursquare Gospel Church, one of the rapidly growing churches in the burgeoning Christian Pentecostal movement. New Hope is part of a global Pentecostal movement that has expanded enormously since its origins in the early 20th century. Pentecostalism emphasizes direct experience of the Spirit through ecstatic forms such as speaking in tongues, trance, vision, healing, dreams, and dance and offers the millennial hope of a Second Coming and new age. Spiritual and physical healing is very important. New Hope does not put a major emphasis on gender violence, but it has expressed more interest than many similar churches. In 1994, New Hope Hilo was regularly providing counseling for men sent by the court and was working with the county to set up an anger management program, with court referrals. New Hope blends Pentecostal ideas of ritual healing and driving out demonic forces with the burgeoning field of Christian family counseling. This is a national movement that blends fundamentalist Christian beliefs and psychotherapy. Most of the books on marriage and family life for sale at New Hope . . . are written by counselors, psychotherapists, psychologists, and doctors who are also conservative Christians. Most Christian marriage and family books focus on problems of communication, anger, and sexuality in marriage rather than violence and urge restraint of anger as well as restraint of sexual relations outside marriage. New Hope pastors have adopted this understanding of the family in their sermons and pastoral counseling. As one pastor put it, divorce is violence against the heart of God. Divorce is therefore discouraged because the necessary personal transformation to stay together is always possible, given the power of God to change any man’s heart. It is their view that God has given the wife responsibility to take care of the family, and the husband lays down his life for his wife. She should submit to him just like people submit to God because of God’s love for them. The man is to make decisions, and though his wife is free to voice her opinions, she is to go along. New Hope shares the view of other Pentecostal churches that healing is a battle between the power of God and Satan. I interviewed several pastoral counselors at New Hope who told me that they often deal with violence in marital relationships and usually use both Christian ideas of demonic influence and psychotherapy to help couples. They see anger as the result of demons in a person’s body and the devil, residing in the flesh, as the ultimate source of sin. As one pastor put it, “When you walk with the Lord and you do something wrong, you know it’s Satan doing it.” This does not mean that the person is “possessed,” but that there is enemy influence. The belief is that the enemy can put ideas in people’s minds. For example, if a person who is abusive suspects his wife of relations with other men, that suspicion is an idea put into the person’s head by demons. It is sometimes necessary to expel the demons. This process, called “deliverance,” requires prayer, reading Scripture, and renewing the mind, as well as commanding the demons to leave.

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In this view, people involved with abuse are especially likely to have strongholds for demons. A person who retains grudges or who has hurts or wounds creates a stronghold, and demons move into these strongholds. In one counselor’s words, “When people stuff anger, it gives a stronghold to the enemy.” Counseling helps to explore hurts, such as childhood abuse or unexpressed anger, that have created strongholds. Eliminating strongholds requires forgiving those who have done harm to you as well as asking forgiveness of those you have injured. Prayer is a fundamental part of the process, as are stories and passages quoted from the Bible. [T]he Pentecostal spiritual war against demons lodged in the flesh has joined with imported psychotherapeutic concepts of self-esteem, learning about feelings, and making choices. In general, anger is understood as the result of strongholds of demons rather than as the product of patriarchy or inequality and oppression. New Hope needs contributing members in order to survive and new members to grow. Anger management is only one of a panoply of recovery and twelve-step programs available through the church. Similarly, it joins its focus on demons with a more mainstream psychotherapeutic approach to gender violence.

Community: The Ho‘oponopono Process Indigenous Beginnings to the 1970s Ho‘oponopono is a Native Hawaiian process for resolving family problems through repentance and forgiveness. It is a deeply spiritual process that has been used for a long time in Hawaiian communities. It cures or prevents physical illness, depression, or anxiety by discovering the cause of the person’s trouble, resolving interpersonal problems, and untangling or freeing agents from transgressions by apology and forgiveness. The revived interest in ho‘oponopono is part of a powerful cultural renaissance of Hawaiian language, culture, and arts, as well as a political movement for Hawaiian sovereignty. [H]o‘oponopono means to set to right or to correct, to restore and maintain good relationships among family members, and between the family and supernatural powers. Relationships are “set right” through prayer, discussion, confession, repentance, and mutual restitution and forgiveness. This means getting the family together to find out what is wrong, why someone is sick, or why there was a family quarrel, and then using discussion, restitution, repentance, forgiveness, and prayer, always, to set things right. An important feature is that after the ho‘oponopono, the problem is let go and not discussed further. There should be no lingering grudges or hard feelings to cause future problems. Ho‘oponopono is increasingly being used in social service agencies that see the need for culturally sensitive services. In these settings, the leader is no longer a family member but an outsider, usually a social worker, and the process is part of a social service agency. Ho‘oponopono is [also] now being incorporated into a burgeoning global movement to promote forms of restorative justice, many of which are based on indigenous peoples’ judicial mechanisms Ho‘oponopono works by gathering the family together to pray and ask the help of the Akua, or Gods, to try to get to the heart of the problem and to move the



discussion through recognizing the problem, repentance, forgiveness, and reconciliation. It is basically a family process, under the leadership of a family elder or leader. If a person refuses to repent or go along with the group’s views, he will be evicted from the family. The leader, or haku, is now more often a person of respect and standing in the community who speaks for the wider good of the family and community. Although there is a lot of variation in practice, and some who use the process for non-Hawaiians translate the terms into English, this is the basic structure of the process. An opening prayer, pule wehe, creates an atmosphere of sincerity and earnestness and asks for help, wisdom, and understanding. Kūkulu kumuhana is the statement of the problem. The discussion phase includes mahiki, unraveling the problem through successive layers, like peeling an onion, as each person talks about what has happened and how they felt about it. Problems are discussed one at a time, uncovering for each the hihia, the entanglement of emotions, reactions, and interactions that bind the injurer to the injured. Once the transgression, hala, has been identified, the process moves toward resolution. This consists of mihi—confession, repentance, and full and complete forgiveness—and kala, to release or to let go, to free each other completely. Kala is followed by ‘oki, to sever the knots and bury the pains. If restitution is necessary, it is arranged. In the past, members of the family were obligated to forgive when a member of the family sought forgiveness, for to withhold forgiveness would mean to suffer consequences from the ‘aumakua. Failure to forgive is ho’omauhala, holding a grudge. If people become angry or feel out of control, the haku will call a ho’omalu, a period of silence or reflection. The process ends with pani, closing rituals, and a prayer. [H]o‘oponopono has developed and changed dramatically over the past 25 years, moving into new areas of social services and political movements for indigenous peoples. It is rooted in Native Hawaiian conceptions of healing and spirituality, but has also contributed significantly to the transnational movement toward restorative justice. It retains its core features of process and naming, but has incorporated ideas from psychotherapy and dispute resolution. Although ho‘oponopono grounds its legitimacy in early Hawaiian practices and ideas of the family and community, much of its current form represents a joining of ideas from mental health, dispute resolution, and restorative justice, many of which have mainland United States or transnational origins. At the same time, the context of the process has changed from the family to social service agencies. Techniques of intervention are helping people feel that they are worthy, showing them that they can make choices, confronting them with the consequences of these choices, and teaching them to understand their emotions better. This remains a profoundly spiritual process in which the haku is aided by the power of God. [S]ome practitioners have begun to wonder if non-Hawaiians can also benefit from ho‘oponopono and if it is necessary to retain the Hawaiian words for the stages. Those who see it as fundamental to the Hawaiian sovereignty movement resist these changes, emphasizing that it needs to be rooted in Hawaiian genealogy and spiritual strength. Others interested in sharing the process and those seeking to establish fee-paying practices are willing to secularize and scale back its Native Hawaiian dimensions. Haku were not paid in the past, but they were the leaders of families with


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shared economic activities. The modern haku lives in a cash economy and may no longer be able to provide his/her time and wisdom without remuneration.

Conclusion This comparison shows that the three approaches to violence against women based on rights, religion, and community start from very different cultural places. They began from sharply different conceptions of gender and marriage and ideas about personal transformation. Despite these different beginnings, each of these programs has adopted a similar set of technologies of self-formation. As we have seen, all have drawn on psychotherapeutic approaches that rely on understanding feelings, making choices, and building self-esteem. Thus, the globalizing technology of the self appears even in domains that assert their distinctiveness; there is homogeneity in the midst of difference. Each of the approaches discussed here began with grassroots initiatives that criticized modern society. Yet, over time, each group gradually changed, moving away from its radical origins and assimilating a more mainstream perspective. The moving force in each case was the pressure to maintain the organization. Although ATV felt the funding pressure most strongly, all three needed to attract clients, members, or participants in order to generate the funds to keep going. Each moved away from its initial radical vision and adopted a more mainstream approach to personal transformation in order to survive and grow. Despite these very different and anti-modern beginnings, each of these programs was, in a different way, colonized by modern technologies of self. It is of course possible that their convergence simply reflects the greater effectiveness of this approach and that my worries about homogenization grow out of anthropological commitments to diversity. Nevertheless, this expansion reflects and promotes the growing global influence of a neoliberal vision of the person as responsible for making him/herself through consumption and autonomous choice. As the global movement against violence against women expands and activists from around the world seek consensus on how the problem should be defined and what kinds of solutions it requires, the debates roiling Hilo are being replayed with new intensity, particularly between those who advocate secular approaches and those who advocate spiritual ones. My observations of important human rights discussions on violence against women at the Beijing Plus Five UN General Assembly Special Session in 2000, the Commission on the Status of Women meeting in 2001, and the Commission on Human Rights in 2001 indicated major divisions between those who advocated secular approaches to women’s rights and those who advocated religious ones. The former place greater stress on protecting women from violence; the latter on preserving a religiously strong social fabric with intact marriages. In these forums, culture appears as a hindrance to human rights; discussions of cultural relativism are virtually nonexistent. As these debates are raging, the homogenization of modern subjectivity is colonizing differences even within the relatively autonomous domains of religion and culture.


Merchants of Law as Moral Entrepreneurs Constructing International Justice from the Competition for Transnational Business Disputes Yves Dez al ay and Bryant Garth

International commercial arbitration has become big legal business, the accepted method for resolving international business disputes. Success can be seen in highprofile disputes, such as those arising from the nationalizations of oil concessions in the 1970s and 1980s, huge international construction projects such as the tunnel under the English channel, and such international incidents as the French sinking of the Rainbow Warrior on its Greenpeace mission, which have increasingly been submitted to international panels of arbitrators. Success is also evident in the tremendous growth since the late 1970s in the number of arbitration centers, arbitrators, and arbitrations. International commercial arbitration therefore represents an international dispute resolution device of tremendous practical importance. The practical importance also raises a number of theoretical concerns. The basic question is how an international justice system for commercial transactions, served by a transnational legal profession and indeed a transnational private judiciary, has been constructed over the past 20 to 30 years. The study of international commercial arbitration allows us to see how competition among key actors and groups serves to construct legal legitimacy and at the same time promote law in the service of merchants. “[I]nternational commercial arbitration” (or, we suggest, mediation or litigation) does not refer to the same things as it did 20 years ago. “Arbitration” has become increasingly formal and more like litigation as it has become more successful and institutionalized. [I]nternational institutions develop out of competing national approaches. The findings reported here come mainly from interviews with lawyers and arbitrators about the field of international commercial arbitration. What arbitration “is” as an international justice system and a dispute resolution device and how it is changing can be seen by examining the characteristics and approaches of the individuals and groups who “make up” the field of international commercial arbitration.

Abridged from Law & Society Review 29, no. 1 (1995): 27–64.


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International Commercial Arbitration When businesses enter into transnational relationships such as contracts for the sale of goods, joint ventures, construction projects, or distributorships, the contract typically calls for arbitration in the event of any dispute arising from the contractual arrangement. The main reason given today for this choice is that it allows each party to avoid being forced to submit to the courts of the other. Another is the secrecy of the process. The arbitrators are private individuals selected by the parties, and usually there are three arbitrators. The parties each select one, and the parties jointly, the arbitrators, or an institutional appointing authority select the third. They act as private judges, holding hearings and issuing judgments. There are few grounds for appeal to courts, and the final decision of the arbitrators, under the terms of a widely adopted 1958 New York Convention, is more easily enforced among signatory countries than would be a court judgment. There is considerable competition for the business of representing parties, providing institutional support, and serving as arbitrators. The increasing competition is an important aspect of international arbitration today, but it is also essential to see that there are a relatively small number of important institutions, chief among them the International Chamber of Commerce, and of individuals in each country who are the key players both as counsel and as arbitrators. There is a kind of “international arbitration community” quite often referred to as a “club” connected by personal and professional relations cemented by conferences, journals, and actual arbitrations.

Research Strategy [W]e must study the question of boundaries in order to see how a given domain— transnational business relationships—is regulated and how institutions develop and change. We use the analytical tool of a legal field or, more particularly for international arbitration, an “international legal field.” When we use “national or international legal field,” we refer to a symbolic terrain with its own networks, hierarchical relationships, and expertise, and more generally its own “rules of the game,” all of which are subject to modification over time and in relation to other fields. Within a field, “agents and institutions constantly struggle, according to the regularities and rules constitutive of this space of play (and, in given conjunctures, over those rules themselves)” (Bourdieu and Wacquant 1992: 102). This article is . . . based on more than 250 lengthy interviews, conducted in English or French in 11 countries (with both of us present for virtually all of them). The informants have come from 25 countries mainly in Europe, the United States, and the Middle East, but also in Asia and Latin America. We selected our informants through snowball sampling beginning from a wide variety of points—lawyers in large or internationally oriented law firms, English barristers or judges in the commercial



bar or courts, academic writers about arbitration or alternative dispute resolution, editors of journals, persons named as arbitrators in arbitrations that have been made public, arbitration institutions, in-house counsel, and conference participants. Our interviews were used to construct a “map” of the field. Semistructured interviews reveal the social capital and personal trajectories of individuals in the field, that is, what they bring concretely to international arbitration, as well as the principles and ideas underlying the field in the minds and strategies of the people who operate in and around it. The results of our mapping process are organized around the themes of legitimacy and credibility. International commercial arbitration is a symbolic field, and therefore the competitive battles that take place within it are fought in symbolic terms among moral entrepreneurs.

Oppositions and Complementarities in the Field of International Commercial Arbitration The field of international commercial arbitration is given its structure and its logic of transformation through oppositions and complementarities. The key source of conflict, and also of transformation, is that between two generations: “grand old men” versus “technocrats.” Grand Old Men and Technocrats The starting point of the generational warfare is diverging ideas of arbitral competence—the characteristics that qualify one to be an arbitrator. For the pioneers of arbitration, exemplified especially but not only by very senior European professors imbued with the traditional values of the European legal elites, the dominant opinion has been that arbitration should not be a profession: “arbitration is a duty, not a career” (Interview 173: 3). Those who hold this opinion are, indeed, individuals who have risen to the top of their national legal professions and gained financial independence before being asked to serve as arbitrators. The specific criteria for these “grand notable” arbitrators allow for numerous variations. The great professors and a few high judges have for a long time controlled the arbitration terrain of continental Europe, while the comparable role is assumed in the Anglo-American system by the most respected of the practitioners, senior barristers or Queen’s Counsel (QCs), or senior partners in firms of solicitors or U.S. law firms. These relatively few “grand old men,’’ as they are often referred to (there were no women), have played a central role in the emergence and the recognition of arbitration, and they continue to have a quasi-monopoly for very large matters. But [they] are increasingly criticized by a new generation of practitioners who came to arbitration because of the rapid growth of this market in the 1980s. To the aura or the charisma of their elders, these new arrivals oppose their specialization and technical competence. They present themselves in this new generation as international arbitration professionals and also as entrepreneurs selling their services

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to business practitioners, contrasting their qualities to the “amateurism” or “idealism” of their predecessors. These technocrats now rely on institutions like the International Chamber of Commerce, which they have not only come to direct but also have used for their education in arbitration. These organizations, which the pioneers used for evangelical purposes to promote arbitration, now have added a more technical involvement in the administration of the arbitrations themselves. The large Anglo-American law firms, which dominate the international market of business law, are also central to this conflict between grand old men and technocrats. The attitude of the large law firms has been to favor overtly this routinization and rationalization of arbitration, which permits them to introduce themselves into the closed “club” and to introduce the legal techniques that are the basis for their preeminence. [B]eyond the contest between generations about what and whose characteristics should be at the center of international commercial arbitration, this fight for power contains the true transformation that is taking place—the passage from one mode to another for the production of arbitration and the legitimation of arbitrators. As is true for the entire field of business law, the Anglo-American model of the business enterprise and merchant competition is tending to substitute itself for the Continental model of legal artisans and corporatist control over the profession. In the same way, international commercial arbitration is moving from a small, closed group of self-regulating artisans to a more open and competitive business.

The Management of Antagonisms and the Production of Universals: The International Chamber of Commerce We can pursue these themes  .  .  . by focusing in more detail on the emergence of modern arbitration around international commercial arbitration’s preeminent institution—the International Chamber of Commerce (ICC) in Paris. The success of the missionary enterprise of the founders led to the diffusion of the ICC arbitration clause into business transactions around the world. With a rapid growth of international trade and commercial conflict, the resulting case boom challenged the ICC’s structure. According to one of the key figures in this period of the ICC: [I]n the late 70s [the ICC] started having problems because the number of cases increased quite dramatically. And the ICC, I think, at the time still only had five or six people in the secretariat. And that’s when, I guess in 1980 or 81, there was this very significant effort by the ICC to organize itself administratively, to hire more people. (Int. 104: 2)

The ICC . . . necessarily became a more bureaucratic institution. The ICC had to administer the influx of new cases and, more important, to respond to the new problems posed by the arrival of a new clientele and, to a lesser degree, new arbitrators. The expansion of the market of Euro-dollars, then the manna of petro-dollars thanks to the oil crises in the 1970s, both enlarged and reoriented



international trade. This rapid expansion of the market of arbitration naturally awakened new appetites. The ICC thus found itself more and more in competition with new arbitral institutions aiming at such and such segment of this very diverse market. One segment of the market could be defined in geographical terms, like east–west or Euro–Arab relations. Stockholm, for example, made its reputation with Soviet–U.S. disputes in particular and east–west in general. Another segment might involve a specific type of case, like those concerning intellectual property. Even if the ICC has lost its quasi-monopoly position, it remains the central institution. The ICC is the most universal of the arbitration institutions, able to brag even about having becoming a sort of United Nations (Int. 106: 4) of commerce and of international arbitration. With members from some 100 nations and national committees in 60, it offers a powerful image of neutrality and legitimacy. The ICC has therefore become one of the principal places where the “politics” of arbitration is elaborated and expressed. There are innumerable committees and multiple networks of influence that gravitate around this institution. Through exchanges and contests expressed in these and other ICC forums and networks, the ICC is able to make policy to regulate the relations of arbitration with the worlds of national law (essentially the new legislation and jurisprudence in matters of arbitration) and politics. It is clear, however, that this project of routinization—even judicialization—of arbitration, supported strongly by the ICC bureaucracy while denounced as treason by the founding fathers, cannot be completely accomplished. Despite the changes, there remains a vital element of personal relations in this field. The system of selection and self-regulation of arbitrators created by the pioneers and resembling a “club” is still quite essential to the prosperity of international commercial arbitration. The secretariat of the Court of Arbitration of the ICC makes no secret of its desire to open the arbitration market beyond the narrow circle of the “grand old men.” Certainly these efforts can be justified by the growth in the number of cases submitted to the ICC, as well as by their great geographical diversity. The arrival into arbitration of the Third World and of the Anglo-Americans rendered necessary the recruitment of new arbitrators who did not fit the profile of the Continental academic or the other pioneers. Their entry into the practices and norms of the club cannot be ensured by a long apprenticeship or by an informal process controlled by a small group of senior men. The institutionalization of these tasks of enlisting new arbitrators and of serving their performance, in fact, justifies the growth and transformation of the ICC bureaucracy (the secretariat) and also the court of arbitration. This set of events helps to explain better the current ambivalence of the founding fathers with respect to the ICC—seen in their attitude toward “bureaucratization.” It is an organization that they helped to build, and which celebrates them at all conferences and ceremonial occasions. But, at the same time, it is now dispossessing them from what constitutes a large part of their power. They are losing the informal control they could assert on a community of disciples, where loyalty could be rewarded by suggesting names for arbitration or for the activities of legal representation. We have here the classical scenario of an institution that is devouring its founding fathers in order to better follow their work.


Yves Dez a l ay and Bryant Garth

The ICC and the Recentering of the Field of International Commercial Arbitration: The Arrival and Role of the Anglo-American Law Firms The tensions implicated by these transformations are not explained only by a crisis of growth. They are also the corollary of displacement from the center of gravity of arbitration. The recentering favors the world of Anglo-American law firms, which have used their power in the international business world to impose their conception of arbitration and more largely of the practice of law. It is thus no accident that, within the ICC itself, the politics of rationalization has been conducted since the beginning of the 1980s by young Anglo-American lawyers recruited from outside the club and whose key words have been transparency, rationalization, and competition. The Anglo-Americans, including the two most recent Secretary-Generals (from the United States), have clashed with leading members of the senior arbitration club over a number of issues, including the need for bureaucratization. A recent example, which provides a good illustration of the conflict and the trend in management, has been the ICC’s effort to expand the requirements for ICC arbitrators to disclose relationships with counsel and other arbitrators. The senior generation wants no disclosure of relationships between counsel and arbitrators. The ICC, supported by U.S. lawyers, has opted to support greater disclosure. Conforming to the liberal logic that the new Anglo-American generation embodies, it is partly a matter of introducing competition in a strongly cartelized market. This objective can be pursued by multiplying the number of producers, and the large Anglo-American firms have had a role in increasing the number of arbitration suppliers (e.g., London, Sweden, Vienna) competing with the ICC. But it is even more essential and also more difficult to introduce a minimum of transparency in a community of specialists characterized by personal relations so complex and so entangled that they interdict access to this market by nonspecialists. Broad disclosure can provide that kind of transparency. When large multinational law firms decided to intervene on the scene of arbitration, they could not be content with being seated around a table dominated by others. It is not simply a matter of gaining access to and learning the rules of the game; they insist—and have the power to insist—also on being able to play according to their own terms. That is, they insist on utilizing their language and the legal technology that assures their preeminence on the international market of business law. It has therefore been necessary for them not only to enter the closed club of ICC arbitration but also to impose a redefinition of the rules of the game. [T]he founding fathers of arbitration could only enjoy these efforts of the brokers who, by opening arbitration to all the North American markets, enlarged considerably the demand for an expertise that they had mastered better than anyone. The Americanization of arbitration thus occurred with much less reluctance than has been perceived, since, at least in the beginning, it appeared to the pioneers as a recognition of the merits of arbitration and an investment in the practical field. But the reality of the relation of forces between the small club of learned artisans and the great conglomerates of legal experts was that, rather quickly, those who had



opened the doors of their club to the Anglo-American practitioners found themselves disturbed by the transformation of approaches to arbitration under the influence of the “American lobby.” The large American law firms continue to consider international arbitration as but one kind of “litigation” (or, more recently, “dispute resolution”) among others. As a partner in a leading New York law firm observed, “Arbitration is considered by us to be an adjunct to litigation—litigation in the courts. It’s simply a different forum” (Int. 47: 3). [W]here one group is obliged to be quasi-referential with respect to the dogmas and the customs on which is reposed the collective faith in arbitration, the others have but one ambition: winning a good result. To get that result, they are ready to exploit any procedural tactics and forums available to them. They are willing to create difficulties for their colleagues and the arbitral tribunal and even to damage the image of this justice which had pretended to be rapid and less costly because informal. One understands the irritation of the founding fathers confronted by these newcomers who permit themselves to transform the nature of arbitration by multiplying the incidence of procedure and technical appeals. Competition and rationalization, especially as promoted by U.S. litigators, leads to the judicialization of international commercial arbitration. Some commentators, especially from the senior generation, see in this evolution toward the judicialization of arbitration the preview—and the cause—of its decline. It is true that the system has been transformed, and the qualities that made arbitration successful for the pioneers seem to be little in evidence. But arbitration is far from withering away. It is in full vigor. Far from dissolving, the community of arbitration specialists appears to have moved a long way toward forming the nucleus of a sort of offshore justice. This expression, which hints at fiscal paradises exploited by the operators of the great financial centers, is rather far from the unified international private system of justice . . . that might have been imagined by some of the pioneering idealists of law. The current model can be understood much better as simply a delocalized and decentralized market for the administration of international commercial disputes, connected by more or less powerful institutions and individuals who are both competitive and complementary.

Conclusion Our research strategy has been to “map the field.” By so doing, we can see the relative positions of groups and individuals in terms of oppositions and complementarities in the field. The players on the field compete vigorously but in terms of the “universals” accepted as a ticket to admission by all the players. For example, we see the grand old men and the technocrats, the professors and the practitioners, asserting that the particular mix of “symbolic capital” that each represents age and experience, technical know-how, theoretical sophistication, ability to represent clients vigorously, prestige in a particular national legal culture happens to be the endowment best suited for

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the legitimation of arbitrators and therefore for the long-term success of international commercial arbitration. The competition among actors in this field—and, we submit, in law generally—simultaneously builds the market for particular legal services and the legitimacy of the resulting law. This intense competition among merchants of law acting as moral entrepreneurs also requires some institutional management. Our research suggests that the International Chamber of Commerce, once the preserve of a small group of arbitration aficionados, was able to play that role and help to facilitate the transformation of the field in the 1980s. International commercial arbitration has to a great extent now been institutionalized as the generally accepted private legal process applicable to transnational business disputes. The transformation of the field can be examined in both a general and a particular sense. There is, first, a general story of rationalization and institutionalization and, second, an equally important story of details of the transformation. Those details are bound to exert a powerful influence on the conduct of international dispute resolution and on competition in the market for legal services. The boom in the market for international commercial arbitration, the arrival of new players, and the competition and power of the large multinational law firms contributed to the break with the traditions of the small, learned, cosmopolitan group that built the International Chamber of Commerce and the basic institutions of international commercial arbitration. The growth and accelerated competition, we have seen, were reflected in an accelerated Weberian transformation—the “routinization of charisma” and the ascendancy of “legal rationality.” The general or Weberian line of this story, we suggest, will be repeated elsewhere in the successful development of international or other legal fields. The social capital and charisma (and even idealism) of elite lawyers respected for their careers and accomplishments helps to legitimate the legal institutions and approaches they favor. International businesses and national commercial entities, for example, have been more likely to accept the idea of arbitration by lawyers if the chosen lawyers are recognized member of an elite with credibility in the worlds of business and politics. Once the idea of arbitration is sufficiently established, however, it can become more rationalized and generalized as it gains further economic and numerical success. It must be remembered, however, that even when successful over a long period, such a Weberian transformation is only a matter of degree. The conflicts that produce the transformation continue to have an impact on the field. The grand notable arbitrators are still influential, for example, and their services are called on when disputes are outside the routine, requiring more political sensitivity and indeed more of the authority and clout that comes with their status. Further,  .  .  . the retrospective logic of the successful Weberian scenario should not be invoked to imply that the specific characteristics of this international legal field were natural or inevitable—the product of a slogan like “globalism.” The particular features cannot be understood if we limit ourselves to a retrospective account suggesting the inevitability of today’s “more rational” version of international commercial arbitration. The fact that international commercial arbitration currently



combines a certain amount of Continental legal theory, a major Parisian institution at the core of the field, and a practice that resembles offshore litigation as promoted by U.S. litigators—rather than, for example, a less adversarial Continental style of litigation or a central focus on London’s or New York’s institutions for arbitration— comes from the specifics of the international legal field as it was first constituted and later transformed. While international commercial arbitration has become more formal and expensive, more like U.S. litigation, it does not make sense to describe “arbitration” as a “given” process inevitably like U.S. litigation. Arbitration has evolved in response to particular social factors, and the competition we have seen continues about the meaning and legitimacy of particular aspects of international commercial arbitration. Any resolution of the debates is bound to be provisional. This article, furthermore, can only explore a limited part of the landscape of business disputing. [T]he mechanisms of business disputing should be seen as part of one general system. The system includes arbitration controlled by courts, arbitration that is parallel to courts, and various court and out-of-court possibilities, such as mediation. What happens in the arbitration of business disputes affects the entire landscape of business disputing. Each possibility is transformed in time and in relation to the others. More generally, studies of “processes,” such as mediation, benefit by confronting any potential means of resolving disputes as part of a complex and changing ensemble. Finally, we emphasize also the importance of studying the details of the construction of legal practices and institutions that are “international.” We must go beyond recognizing that “international” institutions and international legal practices have grown. What we see through the study of the emergence of the field of international commercial arbitration is that the “international” is constructed largely from a competition among national approaches. International commercial arbitration can therefore be understood as an amalgam of national approaches in which the U.S. approach to litigation has recently gained the upper hand. It is not a brand-new form of international justice. The competition that produces both the legitimacy and the prosperity of international commercial arbitration, to be sure, involves both national and international elements. Indeed, there probably could not be an “international” field without the existence of national competition between locally oriented practitioners, on the one hand, and better-connected, more cosmopolitan sectors, on the other. But within the international sector, the competition among national approaches to law and to the governance of business conflicts can be determinant in the constitution of the international.


National Politics as International Process The Case of Anti–Female Genital Cutting Laws Eliz abeth Heger B oyle and Sharon E. Preves

Social science literature tends to assume a link between national policies and local civil societies. Although that model may represent Western nations reasonably well, its extension to African nations and other countries in the Southern Hemisphere is often problematic. Such analyses miss an important piece of the picture: the international context of national action. Examining the evolution of laws from power struggles within countries reifies the nation-state and misses larger issues of control in the international system. An examination of the practice and policies of female genital cutting (FGC) provides an interesting case to explore the importance of international culture in creating national policies. FGC has generated many debates precisely because the issue juxtaposes the ideals of sovereign autonomy and local representation against an international definition of human rights. Due to the resulting moral quandary, national laws relating to the procedure are highly controversial. In this article, we examine why countries adopt anti-FGC legislation. Assuming that laws reflect national culture and material conditions, one might expect female genital cutting to be legally condoned in countries where the practice is prevalent. Rather than viewing each law as the end point of a national political struggle, we consider all anti-FGC laws as part of an international process. We adopt the perspective that laws are significant because of the transcendent principles outside the means–end relationship for which they stand. Law is a key ingredient in the social construction of reality. For example, African countries’ antiFGC policies bolster the perception of an international consensus to eradicate female genital cutting and are viewed as an invitation by international activists to work within countries to eradicate the practice. In this way, laws have real consequences in fueling eradication efforts, regardless of whether local individuals are actually prosecuted under them.

Abridged from Law & Society Review 34, no. 3 (2000): 703–37.




Theoretical Contributions Our theoretical analysis is grounded in neo-institutionalism and status politics theory, which both see national political action as largely symbolic. For neo-institutionalists, assumed “universal” ideals make up the institutional framework of the international system and limit the range of national actions. Majority rule is framed as a “universal” good. Justifications for the respect of human rights are likewise framed universally. Socially constructed universal principles, such as these, form the basis of an “international culture.” Status politics theory focuses on a slightly different, but closely related, issue: How does a dominant group, which takes certain values for granted, deal with others who challenge those values? When particular practices distinguish members of different cultures, then those practices may become symbols of social status, identifying a hierarchy of lifestyles. Status politics theory predicts that moral regulation will occur when a dominant group feels its political order is threatened. From either theoretical perspective, although nation-states are immersed in an international culture, the appropriateness of national action is often contested at some level. [S]tatus politics theorists would be interested in the strategies used by international actors to make Western values appear universal. As an extension of status politics theory, we argue that parties formally linked to the international sovereign system of nation-states will emphasize majority rule and use “assimilative” strategies to bring reluctant governments into conformity with anti-FGC values or behaviors, while parties who operate more independently of the nation-state system will emphasize minority rights and “coercive” reform strategies. Using the case of female genital cutting, the first contribution of this article is to extend status politics theory to explain how the international position of actors influences their reform strategies. Assimilative reform relies on the “legitimation” of the dominant values, while coercive reform requires “domination.” The reform strategies and competing rhetorics of actors in different roles combine to create particular outcomes in national policies. Our second contribution is to expand explanations of national lawmaking to specifically incorporate the international system. Generally speaking, if laws are local creations, because every nation-state comprises unique local identities, unique laws will emerge from each local culture and power structure. If, alternatively, international culture is the driving force behind national laws, then each nation-state will build its identity around commonly held universal ideals.

The History of Opposition to Female Genital Cutting Although the precise origins of female genital cutting are unclear, the practice dates back to antiquity. FGC is deeply embedded in the culture of a number of central African nations, particularly those with ties to the Middle East through Islam. FGC is


Eliz abeth Heger B oyle and Sharon E. Preves

practiced widely in 25 countries. The World Health Organization estimates that worldwide over 130 million women and girls have undergone some form of genital cutting. Although pockets of opposition to female genital cutting have existed for at least a century, organized international mobilization against the practice emerged only in the past 25 years. Early responses to female genital cutting stem from Western roots, with initial opposition in the first half of the 20th century instigated by Christian missionaries. Although most of the world was still completely unaware of femalegenital-cutting rituals at mid-century, knowledge of the practice spread outside of the missionary community to some scholars (anthropologists) and some members of the emerging international community. In 1943, a formal educational campaign was launched by the British in Sudan, and in 1946, the colonial government passed a law forbidding the most extreme form of FGC, infibulation. [T]he law merely politicized the issue and led to the collective and secret circumcision of many girls at once. When the international community first took up the issue of female genital cutting, sovereign autonomy was at its peak, and there was no attempt to coordinate an eradication of the practice. The UN made no formal statement against the practice of female genital cutting until a 1964 conference in which FGC was condemned as a violation of human dignity and right to health. During the late 1970s, a wave of interest, linked closely to women’s and children’s human rights, prompted the international community to make female genital cutting an international concern and to take more concrete action against the practice. [I]n 1978, perhaps in anticipation of the 1980 Convention on the Elimination of All Forms of Discrimination Against Women, international action against female genital cutting increased noticeably. Western feminists criticized the practice through journal articles and missives to international organizations (IOs). In 1978, France began to prosecute cases of female genital cutting as child abuse. International activism continues into the current period with IOs, nations, and the media constructing well-organized opposition to the practice.

International Reform Strategies Fundamentally, assimilative strategies seek to persuade nation-states to adopt the dominant cultural model by legitimating anti-FGC mobilization and delegitimating support for female genital cutting. Assimilative reform occurs through a number of strategies that serve to legitimize the opposition to female genital cutting without threatening sovereign autonomy. One such strategy is to include African countries in international decisionmaking processes with respect to female genital cutting. Another assimilative strategy is to spur grassroots movements in the countries where female genital cutting is practiced. Assimilative strategies of reform deferential to sovereign autonomy were explicitly adopted by international governmental organizations, such as the World Health Organization in the early 1980s. Although they were eschewed by UN organizations, coercive reforms emanating from private individuals, some international NGOs, and the United States appeared alongside the more assimilative reforms of the international governmental



organizations. One coercive strategy was linking financial aid to the eradication of female genital cutting, as with  .  .  . 1996 U.S. legislation. This legislation makes U.S. support for loans from international financial institutions dependent on foreign governments carrying out educational campaigns against female genital cutting. A more subtle coercive strategy is the delegitimation of national governments as not truly representative of their citizens if they fail to pursue the international agenda. [A]ctivists and the media have resorted to the public embarrassment of governments that are thought to be insincere or moving too slowly in their fight to eradicate female genital cutting. Overall, the proposition that the structural position of international actors influences the nature of their reform strategies is supported.

National Anti–Female Genital Cutting Policies The elaborate international structure, which began to take shape in the mid- to late 1970s, became an important backdrop to national action against female genital cutting during the past 25 years. In this section, we turn our attention to that national action in an explicit analysis of national lawmaking as an international process. Local Majority Sentiments and Female Genital Cutting Policies Theories of lawmaking that privilege the nation-state as the source of legal action would predict that those countries in which a majority of the families practice female genital cutting are the least likely to take legal action to eradicate the practice; popular support for the practice would discourage lawmakers from attempting reforms. Contrary to this prediction, we find that local interests supporting female genital cutting tend not to be reflected in state policy. There are 14 countries in which a majority of the families practice FGC, and four of these countries, Chad, Côte d’Ivoire, Egypt, and Sierra Leone, have very vocal opponents to eradication efforts. Although this opposition suggests local citizen support for (or at least dissensus over) female genital cutting, in every one of these countries, if a government exists, it is attempting to eradicate the practice. Egypt’s actions against female genital cutting exemplify the typical outcome in the 14 countries in which a majority of women are circumcised. In Egypt, 97% of women have been circumcised; and 88% of women either think the practice should continue or have no opinion about its continuation (82% and 6%, respectively). [I]n 1994, CNN internationally televised the genital cutting of a young girl in Cairo. The filming occurred while Egypt was hosting an international population conference, and thus maximized the level of international attention to the incident. After initially accusing CNN of trying to embarrass Egypt (and arresting the freelance reporter who arranged the filming), the government reversed its position and indicated its interest in passing legislation to make female genital cutting illegal. The government soon reversed itself again when the head of the Al Azhar University issued a religious decree supporting female genital cutting as a religious practice. As a compromise, the Egyptian Health Minister established


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a policy of setting aside one day a week to perform circumcisions in public hospitals. Even though the Health Minister’s effort pacified Islamic fundamentalists, it outraged activists opposed to the practice. The Health Minister reversed his position again and forbade the performance of female genital cutting in any government medical facility. Despite domestic support for female genital cutting, the Egyptian government continues to take action to eradicate it. A discussion of female genital cutting and its dangers has been added to the curriculum of the Egyptian school system. Television programs condemn the practice. In Egypt, the state appears to have been influenced more by the norm promoted by the international community than by the traditional beliefs of the majority of Egyptians. In each of the other 14 countries, established governments have adopted formal FGC-eradication policies. [S]ince all of the African governments reached the same conclusion in a very short period of time, when female genital cutting became counter-normative internationally, anti-FGC policies became a taken-for-granted acquiescence to the international norm—the national processes, although somewhat unique, were not independent. The actions of a sizeable number of states with respect to female genital cutting are only explicable within the context of international relations. Local rates of female genital cutting are not a good predictor of whether a country has taken steps to eradicate it. In fact, the overwhelming majority of countries in which most women have been circumcised formally forbid the practice. Events Prompting National Female Genital Cutting Policies One of the . . . surprising findings for those who take a local perspective on national policy is that anti-FGC laws are quite common in Western countries where female genital cutting is practically nonexistent. A common assumption is that laws in Western countries were passed in response to a large influx of immigrants from practicing cultures. But the “responding to massive immigration” argument does not necessarily hold when examining rates of immigration from countries with high rates of female genital cutting. Take, for example, the United States, which passed a federal anti-FGC law in 1996. Although rates of migration to the United States steadily increased between 1955 and 1995 . . . between 1985 and 1995, immigration from countries in which FGC is practiced remained well under 4% of total immigration. Among this small number of immigrants, the percentage who were actually at risk of the procedure was even smaller because most immigrants are male and perhaps have a more Western orientation than those who do not emigrate. The legislative history suggests that the U.S. anti-FGC law did not pass sooner precisely because legislators thought the practice too infrequent to justify congressional action. It was only when a woman from Togo requested asylum in the United States to avoid female genital cutting that the United States acted to ban the practice. At that point, the legislative history makes references to the anti-FGC laws of “many nations,” including the United Kingdom and Sudan, and the supportive position of the World Health Organization, UNICEF, and other international human rights groups.



The facts once again support the importance of international influence. Other than laws passed by colonial authorities and an obscure Egyptian decree, no national legislation preceded international organizing [that began in 1980]. At that point, an interesting pattern develops. National laws occur in clusters, with the West acting first. France, Sweden, Switzerland, and the United Kingdom were the forerunners in the passage of anti-FGC legislation or the explicit application of existing legislation to the practice. When African nations did not immediately respond in kind, international instruments became increasingly specific in their opposition to female genital cutting. In 1996, the United States passed its legislation that linked foreign aid to anti-FGC policies. Phrasing of National Female Genital Cutting Laws [I]f nation-states were constitutive of their local citizenry, we would expect laws to be uniquely tailored to the specific situations of the countries that pass them. Colonial laws early in the century did indeed have this quality. [A]t mid-century, local interests were active in tailoring legislation to address their own specific concerns. If external forces are important, we would expect little variation or unique tailoring among national laws. Instead, national laws would follow a particular script that completely bans female genital cutting. This, in fact, describes modern laws. Although there was some discussion in the 1980s that making female genital cutting medically safe was a sufficient end, by the 1990s, the international community was only willing to accept a complete eradication of the practice. Consequently, anti-FGC laws do not medicalize the procedure and they do not distinguish among the different types of female genital cutting: they simply ban all forms of the practice. Central Actors in National Female Genital Cutting Policies Finally, we consider the question of whether national or international actors are viewed by activists as the instigators of change. If nation-states were relatively autonomous local units, then the initial efforts to eradicate female genital cutting would be directed against national governments. If nation-states are actors who simply play by the rules of the international community, then efforts would be directed to the international community. In fact, we found that Western feminists and international non-governmental organizations (NGOs) interested in the issue bypassed local governments and appealed directly to citizens or directly to international organizations (IOs) to take action. In the mid-1970s, local African groups concerned about changing FGC practices directed their attention specifically to African citizens (in local radio shows and seminars), but by the late 1970s, these groups and Western feminist groups began to direct their attention to IOs. For example, they sent detailed information to the UN Secretary-General. Further, when we looked at the national policies developed to eradicate FGC, we discovered many partnerships between IOs and nation-states. One example is Mali, where a national committee was formed to assist IOs in eradication efforts. [L]ocal pressure often does not effect national change: actors in the international system rather than local citizens are often the constituents to which nation-states


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appeal. There certainly are local movements against female genital cutting in African countries—it would be absurd to suggest otherwise. However, for some countries at least, it seems that movements are effective not because of their standing within local power structures, but because they tap into and support a discourse opposed to FGC at the international level. Situational Variation among Nation-States [V]ariation does exist. Countries on the “periphery” of the international system where female genital cutting does not occur appear not to be involved in the mobilization against FGC. Explaining inaction is always difficult. These countries lack the resources to monitor all international issues, they have less “moral capital” than Western countries to lead campaigns for change, they may oppose the international efforts, and/or they may be busy dealing with culture “clashes” of their own. A further key difference involves the character of national laws. Western countries tended to pass formal laws, while African countries were more likely to establish policy bureaucratically, through presidential or health minister decrees. African countries, by avoiding formal legislation, were better able to decouple local sentiment from their legal actions. This variation suggests that local concerns matter more in determining the formality of legal action to eradicate FGC than in the actual adoption of that policy goal.

Discussion Our analysis makes two contributions to the sociology of law literature. First, we provide preliminary empirical support for an extension of status politics theory. We argue that the deployment of assimilative versus coercive reforms by powerful groups is dependent on the relationship of the group to the underlying structure being challenged by the reform. On one hand, international governmental organizations, like the United Nations and the World Health Organization, depend on the international system of independent nation-states for their existence. They use primarily assimilative reform strategies to convince countries that anti-FGC policies are in their national interest. On the other hand, non-governmental organizations operate outside the formal nation-state system and are sometimes antagonistic to national governments. In the case of female genital cutting, these organizations used public embarrassment and denigration to promote their agenda. Powerful nation-states adopted a middle ground, combining the two reform strategies. The second important contribution of this article is to demonstrate that the policies of separate nation-states are not always the outcome of local political processes, but may well be one component of a larger international process. The development of anti–female genital cutting policies in countries where many individuals support the practice, the timing and character of national legal action directed against female genital cutting, and the uniformity of political action all lend weight to the



importance of international pressure in the adoption of anti-FGC policies. The research discussed here  .  .  . suggests that, for some questions, focusing only on local actors can  .  .  . lead to an incomplete explanation for phenomenon. Rather than privileging either the international or the local level, a careful multilevel analysis that considers the sources of identity construction—not only for individuals but also for organizations and states—seems essential. Our findings have several implications for international actors and the international system. One implication is that the contradiction among “universal” ideals at the international level is important in instigating and achieving change. Specifically, in the contest between democratic representation and human rights in the female genital cutting realm, the human rights ideal “wins,” as states adopt laws that prohibit the practice even when the laws do not reflect their local constituencies. Nevertheless, the ideal of democratic representation continues to have an important effect on the process. This fact is evident in the deference that international governmental organizations give to the sovereign authority of nation-states. These organizations use primarily assimilative strategies: including African nations in the policymaking process, having Western countries “model” appropriate national action, and promoting local anti-FGC mobilization within African countries. Even though an issue may be resolved in favor of one universal ideal, other contradictory ideals do not disappear. Instead, they continue to operate as a constraint on both the means and the possible goals of reform. Further, this research demonstrates a conception of power that contrasts with other recent conceptions—one that recognizes the empowering possibilities of the global narratives. Power and exploitation exist on many levels in the world. Mary Daly (1978) links female genital cutting to patriarchal family, religion, and political structures that exploit women. At the same time, Leslie Obiora (1997) links Western pressures regarding FGC to post-colonial imperialism. Although Western pressure forced African nation-states to adopt anti-FGC policies, many would characterize international mobilization against female genital cutting as empowering local women who did not want to undergo the practice (see a similar example from Merry [1995] on wife-beating). Thus, whether the international system stripped away power or provided power is a question open for discussion. In fact, it appears to have done both. Finally, at the international level, our research supplements the recent analysis of international law by Dezalay and Garth (1996). Female genital cutting policies differ from international arbitration in important ways: national laws versus an international legal system; economic principles versus principles of rights; medical activists versus lawyers. Nevertheless, we find important commonalties across the two cases. Our findings support the privileging of Western, particularly American, perspectives over time. Both CNN and the U.S. Congress played important roles in shaping antiFGC policies in African nations. Our findings also bolster Dezalay and Garth’s suggestion that perceived neutrality and universality are important bases on which to build international doctrine. Western feminists, linking into universal ideas about human rights and providing a scientific rather than a political explanation for their interest, were able to gain the attention of international governmental organizations.

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Pa rt VI

Law as a Productive Institution

Law has the potential to control behavior, but it also provides meaning, shapes ideas, and constructs identities. In short, it can produce many important elements of social life. Consider the productive power of law in relation to marriage. If you were to ask a group of college students in the United States in their early twenties for their thoughts about whether and under what circumstances they would get married, you could gain insights about the social meaning of marriage. Among the answers from this group of students, you would likely hear some people say that they want to get married but only after they have established a career; the idea being that marriage is for when one is truly “grown up.” Others may say they do not plan to marry, but will have a nonmarital partnership, sharing responsibilities and care. Marriage is both a social and a legal institution. As a legal institution, marriage brings particular changes to a relationship (such as conferring presumptive decisionmaking authority for end-of-life care or creating jointly owned marital property). These changes may come to define what signals a serious relationship, even to those who are unmarried (Hull 2006). As a legal institution, marriage also has characteristics of being available only to those who are allowed to wed. While ideas about marriage vary cross-culturally and may change over time, being unable to marry could result in some social groups being seen as less stable and less responsible than other people (Yamin 2012). In short, thinking about marriage as a legal institution suggests that law influences who we are and what we do. The new social constructionism in law and society scholarship (see the article from Mertz in Part IV) updates a century-old idea—that law can shape society—by urging scholars to consider how law produces differences between people (e.g., social identities) and shapes the cultural understandings that make these differences consequential for peoples’ lives. In this final section, the articles address questions about these productive powers of law, particularly as they relate to forming social identities and creating boundaries that separate resources, power, and value among groups. In this way, the articles together pose a question about how law is involved in developing—and perhaps changing—a social order. The idea that law is an ordering element of society stretches back to classical sociology of law, perhaps most famously expressed in Durkheim’s works that argued that the general character of law in a society was an index of social solidarity. (For succinct overviews, see Deflem 2008 and Sutton 2001.) In more recent times, however, scholarship has emphasized that more discrete laws and legal actions can have 339


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significant consequences in creating widely shared elements of a social order that entrench differences in power. One particularly visible means is through creating categories and boundaries that come to be taken for granted, or accepted as natural. Legislation and court decisions serve as important instances in the process of socially constructing differences by drawing distinctions between people in relation to rights, restrictions, and powers. For instance, laws that limited married women’s rights to own property shaped women’s status within families and societies while also contributing to cultural understandings about womanhood (Hartog 2000). To say that a group difference is socially constructed, however, is only the beginning. Mere identification of a social construction does not explain why particular distinctions emerged, the process through which law developed, which legal actors enacted the differences, or the continuing consequences of such constructions. In these efforts, contemporary scholars have started with the same endpoint—existing inequalities between groups—that motivated earlier law and society analyses, but have asked questions about how legal action facilitated the groups becoming constituted as distinct and socially meaningful in the first place. Critical race theory, in particular, questioned traditional approaches to understanding law and made the social constructionist tradition even more of a challenge to understanding law as a neutral force (Gómez 2004). Examining how law was involved in the social construction of race, critical race scholarship challenged traditional scholarly work on antidiscrimination. Critical race scholars move beyond analyzing the individuals or organizations that discriminate to highlight the deeper, structural nature of racial inequalities. For example, revisiting the famous United States school desegregation case Brown v. Board of Education, Derrick Bell (2004) examined both the context and consequences of the decision. In the Cold War era, legal segregation harmed the United States’ quest for allies among the newly independent countries of the post-colonial global south. By simply striking down the doctrine of separate-but-equal and substituting the opposite logic (that separate was on its face unequal), the decision made the history of African American disadvantage invisible while also simply decreeing that the problem had been solved. Law—failing to address the structural nature of racial inequality and underplaying the successes of African American schools despite the inequities in resources—ushered in the foundation for a stabilization of racial inequalities in a changed social and political environment. The social constructionist research shows that categories and boundaries have a history and are the products of social action; therefore, it follows that categories and boundaries can change and, perhaps, be used as a tool of change. The excerpts in this section address both the possibilities and limits of such change, examining how social movements might encounter and deploy constituted identities. In addition, the articles ask whether there are limits to the power of law to constitute characteristics of actions, groups, and individuals. Finally, understanding law from the constitutive perspective raises questions about considering how, if at all, the old visions of law and society research contributing to progressive social change need updating.


Through a Green Lens The Construction of Customary Environmental Law and Community in Indonesia’s Maluku Islands Charle s Z e rner

This essay charts historical changes in the discursive construction of ritual performances, practices, and customary law in the Central Maluku Islands of Indonesia. Sasi is a generic name for a varied family of institutions, laws, and rituals that permitted social control over access to forests, fields, and orchard lands and, to a lesser extent, the marine environment, through the imposition of a temporary prohibition on entry or harvest. By contrasting descriptions of sasi written during the late 19th and early 20th centuries with recent descriptions offered by a variety of actors, including Indonesian government officials, environmental and socially oriented nongovernmental organizations (NGOs), and legal scholars, I focus on shifts in the discursive construction and promotion of sasi’s changing meanings and purposes. Accounts of sasi produced in the late 19th and early 20th centuries suggest that a dominant intention underlying the codification of customary practices was the regulation of access to commercialized resources and the territories in which they were found. Although the social and political context surrounding the production of sasi texts during that period remains unclear, a preoccupation with controls, fines, and sanctions suggests an active collaboration between colonial officials and local elites, in which local communities were viewed as recalcitrant subjects in need of discipline, monitoring, and edification. [D]uring the 1980s and early 1990s . . . as international and national conservation ideologies proliferated, Indonesian NGOs, the Department of Population and Environment, and Moluccan legal and environmental scholars produced and promoted sasi customary law as a living armature for the conservation of biological diversity, sustainable development, and social equity in village communities. In constructing a “green” and socially equitable sasi, these advocates have retroactively configured past purposes and practices in the service of contemporary social and environmental goals, including equity and conservation. Rather than being an “indigenous” creation arising out of the local earth and waters, as some contemporary governmental and environmental spokespersons have claimed, sasi practices were and are the changing products of a border zone in which Abridged from Law & Society Review 28, no. 5 (1994): 1079–1122.



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cultural and legal readings are strategically deployed. Like other collectively shaped rituals, sasi practices were never the coherent products of a purely local community or the production of a single, if collective, authority. Rather, these practices and their textual embodiments were and continue to be hybrid creations, shaped by a multiplicity of authors, over several decades, embodying diverging intentions, speakers who vary in their capacity to enforce their readings, with strikingly different “voices.”

Sasi during the Colonial Era The Maluku Islands of Indonesia, once known as the “spice islands” of the East Indies, lie south of the Philippine island of Mindanao and east of Bali, scattered in a series of irregular arcs spanning the Maluku, the Banda, and the Seram seas. [T]hese islands encompass extraordinary variation in terrestrial and marine habitats and are home to many indigenous species. These exquisitely varied islands are equally complex and diverse from a cultural perspective, lying at the historic heart of global interest in essential spices: at this geographic juncture, non-Islamic and non-Christian religious practices and beliefs continue to coexist with Christian and Muslim practices, brought to these islands as early as the mid-15th century by traders and missionaries and later by political administrators. The original inhabitants of Ambon, Saparua, Haruku, and Nusa Laut islands of the Central Maluku, who are known as Alifuru, lived in small, isolated mountain hamlets . . . which had no clear territorial boundaries. The ecological and social history of these islands has entailed centuries of contact and commercial and cultural exchange with distant powers and occupiers, including the Portuguese and the Dutch. After succeeding in routing Portuguese and the British claimants to the “spice islands,” the Dutch systematically destroyed rival sources of clove production in all but a few areas under their control through periodic raids . . . , slaughtering significant portions of the male population, and bringing those areas under cultivation under strict social and economic control. The creation of an economic monopoly on Moluccan clove production entailed enforced production quotas, the imposition of population relocations, and radical interventions into existing patterns of social and political structure. Villagers were forcibly relocated on the coast and settled within  .  .  . newly created territorial units managed by individuals occupying Dutch-created administrative roles, the bapak raja and kepala soa. For many agricultural and fishing communities in the Central Maluku islands of eastern Indonesia, sasi is a changing family of customary practices, administrative roles, ritual performances, and beliefs that have been deployed to regulate access to terrestrial and, to a lesser extent, marine and riverine resources. Similar practices, locally distinct and called by various names, continue to be enacted, with varying degrees of social interest and obedience, throughout the Moluccan Islands. Time and space are among the most important media through which many Moluccan communities regulate access to resources and territories that are important from subsistence and commercial perspectives. When an area is closed, entry



prohibitions are in effect and the area under sasi is marked by signs placed at strategic locations by ritual practitioners accompanied by kewang [officials in charge of village security]. Temporary signing of individual trees, groves, or river estuaries . . . is often accomplished by installation of striking ritual constructions of paired coconut palm fronds jutting outward from a central sugarcane trunk crowned by a young coconut; sound-producing “instruments” at the apex of the assemblage make percussive sounds when struck by the wind. In 1870, a Malay version of the “kewang rules of Porto village” was produced by a group of officials appointed by the colonial government, including the raja and the heads of new territorial and administrative units known as the negori, or villages. As discussed earlier, the location of these villages and the structure of their government were, in large part, artifacts of a colonial policy that emphasized the orderly production and control over the clove trade in the Central Maluku islands. By the mid-17th centuty, the Dutch had forcefully relocated highland villages to sites on the coast, where clove cultivation and social life in general could be more easily controlled. Former structures of authority were undermined while new village territories, ruled by colonially appointed officeholders (including the raja, heads of descent groups, and kewang) was established. The 1870 rules laid out, in five sections, the rights, obligations, fines, administrative structure, and judicial process through which access to forest and marine resources was, ideally, to be governed. The kewang, conceptualized as a kind of forest police within this document, were charged with authority for periodic patrols of forested territory, particularly all the lands under cultivation within territory controlled by the village, including both collectively managed and individually held lands. Among the more crucial features of the kewang system were rules establishing procedures for monitoring, surveillance, reporting of violations, and the arrest of violators. Kewang were charged with patrolling local forests, orchards, and village paths. The Porto rules of 1870 not only articulated the legal and administrative structure for a system of resource control and management in 109 detailed rules, but they also specified the fines levied for each kind of infraction, the provision of salaries and “rewards” to diligent kewang and their assistants, and the percentages of each fine allocated to the village treasury for the common good. Indeed, the discursive picture of Porto’s kewang rules and institutions emerging from the 1870 text is one of hyperrationality and obsessive attention to the minutiae of control over resources through patrols, monitoring, examinations, arrests, and fines. The story of sasi law in Porto scarcely ends at this point. An unusually candid, self-conscious “Addition” . . . appended to the 1870 rules informs us that the codification of kewang rules constituted: the first attempt to stop the evil that often occurs when a local person wants to seize and steal what another person possesses.

Moreover, we are informed that this codification was based on a study “conducted . . . to organize the kewang regulations in one well articulated group which will bring


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benefits to the village” (Rule 110). The use of research methods to collect, organize, and textualize these practices into a “well articulated” body of rules suggests that the impetus behind this codification was related to the Dutch colonial strategy of ruling through local custom. But the “Addition” states an additional, high-minded purpose that deserves consideration: sasi was also intended to provide a source of “working capital” for local village development. Secondly, so that the village will get working capital and when, in the days yet to come, this capital will increase in the village treasury, the result will be that it will be easy for the village to get some work done within the village by giving modest wages to the common people who are willing to do the work. So that villagers will never feel dissatisfied because they do village work without receiving returns for that work.

There is no evidence in the 1870 Porto rules, or later versions codified during the first two decades of the 20th century in other Central Moluccan villages, that local villagers were either conscious of, or took steps toward, conservation of forest species, management of natural forest habitat, or what has come to be known as sustainable economic development. Rather, these rules suggest the imposition of an alien and judgmental consciousness which privileged conservation. Sasi in the late 19th and early 20th centuries seems to have represented a fusion or intersection of existing local customs and rituals regulating access to agricultural resources, with Dutch colonial policy and programs, and the needs of local elites. The project of creating a hybridized, colonial sasi in the Central Maluku utilized customary functionaries, including the raja, the village council, and the kewang. Sasi ritual practices and beliefs, which varied from village to village and island to island, were increasingly rationalized in the service of state control of local resources, particularly in the service of local Moluccan governmental officials whose salaries and control of lands were embedded in colonial versions of “traditional” government. These practices were reconstituted as “systems” or “bodies” of rules and provided with functional reasons for their imposition. Indeed, in the project of constructing sasi as a customary law system, its embodiment in writings and contractual agreements was critical.

Sasi in the Era of Environmentalism Sasi in the Maluku during the 1970s and 1980s, when its discursive construction and legal manipulation developed dramatically, must be contextualized within a vastly changed Indonesian political, economic, and cultural scene. In the Maluku of the 1970s and 1980s, vast tropical timber resources as well as rich marine resources were beginning to be actively sought and extracted by private and parastatal corporations, as well as by foreign operators.



By the early 1980s, moreover, aggressively promoted governmental discourses about the necessity for national economic development were beginning to collide with emerging discourses about environmental conservation and sustainable development. In the late 1980s and increasingly during the early 1990s, human rights discourses about “indigenous peoples,” community-based environmental management, and discussions of unequal development, in which local forest-dwelling and coastal communities were marginalized while “their” resources were extracted by powerful, state-supported actors, were strategically linked to the nationally acceptable and widely disseminated rhetorics of nature conservation and sustainable development. In Haruku village, located on the coast of Haruku Island in the Central Maluku, recent codifications of sasi are emblematic of larger changes and the new institutional forces and actors engendering them. Sasi’s purposes, as represented in the new Haruku rules of 1984, were imagined as if viewed through a green lens: the “sustainable management and protection of living stocks as well as the equitable distribution of economic benefits” now emerge as sasi’s dual purposes. This codification of Haruku’s sasi rules, however, was not a rote recapitulation of rules already transcribed and manipulated by the Dutch. Indeed, the Haruku government head inserted several new rules directed toward conservation and sustainable management of coastal resources. One new rule, for example, was directed at prevention of erosion and stabilization of the river banks: “People are prohibited from cutting down trees near the river bank throughout the area under coastal sasi with the exception of sago trees.” In the mid-1980s the attempt to recognize, to revive, and to reconstruct sasi as an institution, a body of legal rules, and environmental values was driven by a volatile shuttle of environmental and social ideas and ideals moving between Jakarta and Ambon, capital city of Maluku Province on Ambon Island in the Central Maluku. By projecting a conservationist past onto current sasi practices, these interpretations authorize supportive actions by important central governmental and nongovernmental actors, and, at the same time, they guide or goad local communities toward more conservation-promoting behavior. By directing the attention of the political center, especially the prestige of [Minister of Population and Environment] Dr. Emil Salim, toward the political periphery, these creative reconstructions are also enabling fictions. They create discursive links between the past and present, channeling meaning and the energies, projects, and potential financial flows of powerful, cosmopolitan centers to singularly remote locations throughout the archipelago. By 1984, a newly constituted sasi was being defined by local transcribers, often village heads, in terms that resonated with the national as well as global environmental and development discourses. In Haruku village, a canonical definition of sasi was articulated: Sasi is a prohibition against the taking of various kinds of specific natural resources within a specified time period in order to conserve, while guarding the quality and population [level of the natural resources] as well as conserving the social rules of local society and the equitable distribution of economic returns for the whole society.


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At the same time, other meanings of sasi were deemphasized. The idea of nature presupposed in contemporary Indonesian discourses on conservation is strikingly different from ideas of nature and societal relationships held by many Moluccan fishermen, in the 1920s as well as in the present. By September 1991, sasi was being introduced to the larger Indonesian environmental community by HUALOPU, a social-activist organization based in Ambon. The sasi HUALOPU introduced was constituted as a system of conservation and social equity: The role of this customary marine law strongly supports conservation of living marine resources, this is something we can see from looking at the sasi system. This system, other than being rather useful because it regulates resource use, extraction, and protection, also guarantees even distribution of harvest results.

In 1991–92, HUALOPU sponsored a survey of sasi-like practices throughout Maluku Province, fitting markedly different patterns of thought and practice into a newly wrought Procrustean bed. In this reconstructed system, colonial-era clichés about “traditional” societies and essentialized patterns of thought, society, and action continued to appear, despite an emphasis on legal change: The direction of liberal thought of the Western world has a rational and intellectual pattern that is different from the natural pattern of Indonesian thinking, especially traditional Eastern thought which has a cosmic and totalistic character. According to this traditional world, it is not the position of a person as an individual, but the social alliance that is essential in the organization of law. The head of this alliance holds the position that is most important, because he is the embodiment of the alliance.

In this vision, kewang, like the Moluccan natives fixed in Dutch colonial customary law tracts as if they were exotic dragonflies pinned to a page, continue to put into action the timeless, essentialized notions of law, society, and nature that Moluccan sasi is said to embody.

Conclusion In the 1990s, NGOs continue to search, through time and through Indonesia’s vast coastal and forested territories, for local institutions, practices, and values that may be deployed in the struggle to effect changes in inequitable, even oppressive, relationships between the central national government and capital-intensive private sector, on the one hand, and local communities on the other, controlling access to natural resources. The story of the relatively recent “discovery” of sasi—the attempts to reconstruct it discursively and to resuscitate it as a “community-based management practice”—is part of a much wider move in the strategic politics of the environmental movement in Indonesia. Community-based management institutions are being



documented and discovered in precisely those areas of the remaining forest and coast where control over resources is most intensely contested. In those areas, adat or custom, rather than being museumized as a cultural curiosity or an object of touristic concern, is being used as a discursive projectile carrying community claims to resources and territories into a hotly contested political-economic arena. Those practices known generically as sasi are hybrids, the products of long-term historical exchange of goods, ideas, and vocabularies. Sasi has been transformed during two eras of codification, rationalization, and inscription, during the late 19th and early 20th centuries and during the late 1980s and early 1990s. In both eras, the discursive production of sasi meanings and praxis was the result of hybridization processes across border zones. During the first era, local elites and Dutch colonial managers fashioned a customary law in which commercial intentions the regulation of agricultural production and trade were grafted onto existing prohibitory practices linked to religious beliefs and ritual practices. In the late 20th century, sasi was again reinscribed and codified, in romantic and ahistorical terms, as an example of indigenous Moluccan culture embodying community-based management principles, institutions, and rules. It is this recent sasi—green, equitable, and culturally distinct—that represents the coincidence of two powerful, and socially compelling discourses: environmentalism and cultural autonomy. This emerging sasi is, in part, the product of national discussions on culture, biological diversity conservation, and sustainable development, an agenda, as it were, in search of a local subject. It is also a sasi generated in the context of global claims and discourses on marine biological diversity. Sasi is the product of provincial intellectuals’ and scholars’ construction of a sasi as an embodiment of Moluccan culture, a creative act that is responsive to national and regional discussions about political power, citizenship, identity, and local cultural practice. At the same time, and perhaps most important, the recent creation of sasi as an environmental and cultural possession of local communities, which may offer the key to sustainable development and biological diversity conservation, is the product of intense, indeed passionate labors by young social and environmental activists. What is extraordinary at this moment are the ways in which sasi practices are again being subjected to a period of intense scripting, reinterpretation, and political deployment. In the not too distant past, inscription of the laws of sasi represented the imposition of colonial power and its local, Molucccan representatives the raja as well as his forest police, the kewang on local village commodity production, particularly agricultural production. In the interpretations now being produced and disseminated, sasi is once again being constructed as a purely local praxis, but these constructions are being deployed by local officials protesting and seeking a vehicle for resisting an oppressive, extractive political economy—in forests and on the seas and coasts—authorized by the central government. In this unusual moment of resistance and collaboration, environmental and community activists in the provinces are forging alliances with certain officials in the central government. At the same time, activists in the Maluku are communicating with communities and NGOs in other regions and other countries. In these alliances,


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the power of environmental discourse, in particular, the turn toward describing sasi praxis as green and equitable, has been an unusually powerful move. This rhetorical turn has opened a field of movement in which support of local political and legal autonomy is legitimated under the twin umbrellas of environmental management and culturally distinctive communities. Sasi, once a body of ritual practices performed at the meeting place of sea and shore, at the juncture of wild forests and tree gardens, has now become the contested site in which the aspirations of a new generation of Indonesian social activists, concerned with the places and rights of minorities within the national community of citizens, are located.


Unsuitable Suitors Anti-Miscegenation Laws, Naturalization Laws, and the Construction of Asian Identities Deenesh Sohoni

In 1861, Nevada became the first state to pass a law specifically barring marriages between whites and Asians. Over the course of the next century, until the 1967 Supreme Court decision Loving v. Virginia declared anti-miscegenation laws unconstitutional, an additional 14 states came to ban marriages between whites and Asians. While social scientists have detailed extensively how whites created laws to limit the rights and privileges of minority groups within the United States, less frequently examined are the manner by which these laws helped shape and determine the meaning of racial groups and the features selected to demarcate group boundaries. My primary goal in this article is to examine how the legal system came to group together Asian ethnic groups that originally were viewed as racially distinct. I analyze legal attempts to create exclusionary language that encompassed multiple Asian ethnic groups, and the justifications given for these definitions. In addressing this issue I also consider two related questions: First, why did Asian ethnic groups not become defined as part of a single broader nonwhite (or colored) category in American society? And second, why, arguably until the 1970s, did various Asian ethnic groups not become grouped together into a pan-ethnic racial category such as “Asiatic” or “Oriental”? In addition, I examine how states successfully used anti-miscegenation laws to restrict the rights of U.S.-born Asians by linking them with their foreign-born co-ethnics.

Background: The Dynamics of Asian Immigration Between 1860 and 1890, the Chinese population tripled from a little more than 30,000 to more than 100,000; and once Chinese immigrants were barred from entering the United States with the passage of the Chinese Exclusion Act of 1882, immigration from Japan helped increase the Japanese ancestry population from less than 2,000 in 1890 to more than 70,000 in 1920. When the Gentleman’s Agreement of 1908 led to the informal restriction of Japanese immigrants, employers seeking sources of cheap labor began recruiting from other Asian countries. Abridged from Law & Society Review 41, no. 3 (2007): 587–618.



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Increased immigration from Asia occurred at the same time that immigrants began arriving in greater numbers from South, Central, and Eastern Europe, leading to hostility toward all these groups and greater support among the general public for more restrictive immigration policies. Immigration from Asian countries also coincided with changes in the legal status of blacks at the end of the Civil War. In the Naturalization Act of 1790, Congress had originally restricted naturalization to “white persons,” laying the foundations for a racially defined citizenship. After the Civil War, passage of the Civil Rights Act of 1866 and the Fourteenth Amendment (1868) granted the right of citizenship to blacks, and thus potentially to other groups previously deemed “nonwhite.” Legal attempts to restrict Asian ethnic groups from full participation in American society thus required constructions applicable to diverse groups, and within a new racial framework with respect to white–black relations. In addition, these constructions had to take into account rights that differed for immigrants and their U.S.-born offspring.

Critical Race Theory The theoretical approach I utilize in this study is derived from Critical Race Theory (CRT). The basic premise underlying CRT is that race is socially constructed from available and created “meanings” that are formed and transformed under constant social and political pressure. Perhaps the best explication of both the importance of the legal system in constructing racial categories and the role of Asian ethnic groups for these constructions is seen in Haney López’s book White by Law (1996), which documents the role of Asian naturalization cases in forming new understandings of the meaning of white. Some of the key insights provided by Haney López are the fluid nature of “racial” meanings, the role of courts in defining the legal boundaries of “whiteness,” and the importance of laws based on these definitions “to structure racial dominance and subordination into the socio-economic relations of this society” (1996: 17). Haney López illustrates the messy, contested, and social nature of racial definitions by comparing two Supreme Court cases: Ozawa v. United States (1922) and United States v. Bhagat Singh Thind (1923). Using these cases, he shows how the Supreme Court shifted from a “scientific” explanation that prohibited Japanese naturalization based on their “biological” status as “yellow” Mongolians to a “common knowledge” justification that prohibited the naturalization of Asian Indians based on their perceived differences from those of European heritage despite their status as “whites” under existing racial classification systems. Through this comparison, Haney López also emphasizes the role of the legal system in establishing rather than merely reflecting “racial knowledge” (1996: 119). Critical race theorists have brought attention to the role played by the legal system in the construction of racial categories. Specifically, these scholars stress how the legal system has served to translate public concerns and anxieties regarding the social incorporation of diverse groups into coherent legal principles distinguishing the



rights and privileges of different racial and ethnic groups. My research builds on and contributes to the CRT literature by examining the extent to and processes by which Asian ethnic groups came to be grouped together. At the same time, my analysis of how state-level anti-miscegenation laws conformed to and differed from nationallevel debates concerning those eligible for naturalization and citizenship reveals the tensions that arose between these two levels of legal discourse as they reacted to a common set of external pressures.

Data The data used for this study come from two major sources. State anti-miscegenation laws were compiled from Martyn’s (1979) extensive history of anti-miscegenation legislation. Drawing from this historical account, I developed a data set listing all 15 states that passed anti-miscegenation legislation specifically directed against members of Asian ethnic groups. Included in this data set are the years these laws were passed, the labels used to identify which Asians could not marry whites, and the way new Asian ethnic groups were identified and classified in revised versions of states’ laws. Descriptions of the court cases that helped determine the racial categories and citizenship rights for members of Asian ethnic groups were compiled using the database LexisNexis Law. These cases are analyzed both to understand the rationale of the courts in trying to place Asian ethnic groups within the evolving American racial order, and to examine how Asians attempted to contest their legal status within the courts.

State Anti-Miscegenation Laws The first anti-miscegenation laws prohibiting marriage with Asians, not surprisingly, were directed against the Chinese. Chinese immigrants first began to arrive in the United States in the 1840s. States used either of two categories of labels to identify Chinese: one, the ethnic identifier Chinese, or two, the racial identifier Mongolian. When Japanese immigrants started arriving in the United States in large numbers at the end of the nineteenth century and the beginning of the twentieth century, state legislatures that wished to ban racial mixing were faced with how to incorporate Japanese into their statutes. One response among the second wave (from 1890 to 1920) of states that passed anti-miscegenation laws was to list both Chinese and Japanese separately in their statutes. For the most part, however, states during this period used the more inclusive “racial” category Mongolian to include both Chinese and Japanese. In addition, all three western states from the first period that had previously used the term Chinese in their statutes changed these to the more general racial category of Mongolian. This trend toward a single generalized racial category for Asians ended with the inflow of new arrivals from other regions of Asia, such as the Philippines, Korea, and India, who were being recruited to replace Japanese labor restricted by the


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Gentleman’s Agreement of 1908. By the 1920s, states were using a mixture of racial and national labels to identify Asian ethnic groups with whom marriage by whites was prohibited. In 1924, Virginia built on its long history of anti-miscegenation laws by prohibiting the marriage of whites to “Negroes, Mongolians, American Indians, Asiatic Indians, and Malays.” In 1927, Georgia followed suit with perhaps the most exhaustive and frequently redundant proscription against intermarriage. [Sec.] 53–106. Miscegenation prohibited.— It shall be unlawful for a white person to marry anyone but a white person. Any marriage in violation of this section shall be void. [Sec.] 53–312. “White person” defined.— The term “white person” shall include only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person, any of whose ancestors has been duly registered with the State Bureau of Vital Statistics as a colored person or person of color, shall be deemed to be a white person.

Overall, these anti-miscegenation statutes reveal that unlike African Americans, who all fell under the more general racial category of African, Negro, or black, no generalized racial umbrella term such as Asiatic or Oriental was created to include all Asian ethnic groups. Despite the initial use of Mongolian to exclude both Chinese and Japanese from citizenship, it appears that state legislators considered this term insufficient to exclude Filipinos and Asian Indians. In addition, these statutes reveal few attempts by states to create a broader category of nonwhite applicable to African Americans, Native Americans, and Asian ethnic groups. The two states that did use the term nonwhite in their statutes, Virginia and Georgia, immediately clarify all the different groups that were considered nonwhite.

National-Level Discourse Regarding Race Although states viewed the institution of marriage as strictly under their jurisdiction, the language they used to identify Asian groups paralleled racial distinctions being made at the national level regarding which groups were eligible to naturalize and become American citizens. Immediately after the Civil War, Congress passed legislation that gave new rights to blacks, particularly with respect to naturalization and citizenship. Specifically, the Civil Rights Act of April 9, 1866, stipulated that: [a]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to



make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

Civil rights legislation appeared, in theory, to provide Asian immigrants an avenue to naturalize and gain citizenship. In fact, during debates regarding the wording of the Naturalization Act of July 14, 1870, several congressmen, led by Senator Charles Sumner of Massachusetts, sought to strike down the term white from naturalization laws altogether. However, fear among representatives from western states that the rapidly growing Chinese population would seek citizenship rights led Congress to reject a proposal to extend naturalization rights to Asian immigrants. Thus, the Naturalization Act of February 18, 1875, finally read: The provisions of this title shall apply to aliens being free white persons, and to aliens of African nativity, and to persons of African descent.

Over the course of the next century, immigrants from various Asian countries would seek to become citizens of the United States. In each of these cases, the courts ruled that the right to naturalize was dependent on the revised Naturalization Act of 1875, which limited citizenship to “whites” and “blacks.” In trying to restrict the ability of Asian immigrants to naturalize based on the Naturalization Act of 1875, the courts were forced to argue that members of Asian ethnic groups were not “white”; yet at the same time, given the new rights provided to African Americans, they could not argue that Asians were merely “nonwhite.” It is here that the courts turned to the field of anthropology to provide the “scientific” language and rationale for distinguishing Asians from whites and blacks. These racial distinctions also became the basis of political attempts to restrict immigrants, who it was feared would overrun the “superior” stock of northern and western Europeans that made up “Americans,” and became a key argument for the prohibition of marriage between racial groups. In the case of In re Saito, Circuit Court Judge LeBaron Colt used [Johann Friedrich Blumenbach’s five category racial classification and the] justification [that Congress retained the word “white” in the naturalization laws for the sole purpose of excluding Chinese and Japanese from the right of naturalization] to deny the application of a Japanese immigrant who sought to naturalize: The act relating to naturalization declares that “the provisions of this title shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent.” Rev. St. § 2169. The Japanese, like the Chinese, belong to the Mongolian race, and the question presented is whether they are included within the term “white persons.” . . . The history of legislation on this subject shows that congress [sic] refused to eliminate “white” from the statute for the reason that it would extend the privilege of naturalization to the Mongolian race.


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Initially, when immigrants were mainly from China and Japan, the racial category of Mongolian served effectively to exclude their naturalization. However, the use of existing racial classification systems that distinguished between “yellow” Asians (i.e., Chinese, Japanese, and Korean) and “brown” Asians (i.e., Filipinos) and viewed those from West Asia and Southeast Asia as “white” made it difficult to create an overarching racial category such as “Asiatic” or “Oriental” to exclude all Asian ethnic groups. In fact, lawyers representing Asian immigrants quickly recognized that the best way to aid their clients was to differentiate their clients from members of other Asian groups and, if possible, to claim that their clients belonged to the “white” race. The group that was most successful in distancing itself from other Asian ethnic groups, and in using existing classification systems to stake a claim to “whiteness,” was Asian Indians. The racial classification systems of the time viewed Asian Indians as originating from Caucasian stock, and it was this racial status that immigrants from India used to argue for their right to naturalize. Initially, the courts were sympathetic to the argument regarding the historical origins of Asian Indians and ruled in favor of Asian Indians seeking citizenship as whites. It also appears that the courts were swayed by arguments made by Asian Indians justifying their racial purity based on social segregation in India mirroring that in the United States. The success of Asian Indians in claiming citizenship as “whites” was, however, short-lived. In 1917, Congress passed a bill banning immigration from most parts of Asia (Act of February 5, 1917). For immigrants from India, this raised the question of their right to naturalize given their dual status as immigrants ineligible for entry into the United States and “whites” eligible for naturalization. This issue arose in 1920, when an Indian national who had lived in the United States for seven years challenged the denial of his application for citizenship. Initially, in In re Bhagat Singh Thind (1920), the District Court of Oregon ruled that no conflict existed between the laws governing immigration and naturalization. Three years later, however, the U.S. Supreme Court overruled this decision in United States v. Bhagat Singh Thind (1923). In rendering its decision, the court also created a much narrower definition of white. The court ruled that while it was possible that Asian Indians could be defined as “racially” Caucasian, it was clear that they were not “white” as understood in common speech. The court also ruled that Congress, in specifying citizenship as for “white persons” in the Naturalization Act of 1790, had meant this to apply only to those of European ancestry. A year later, this link between immigration and citizenship came full circle, when Congress inserted a clause into the Johnson-Reed Act (1924) barring immigration of aliens ineligible for citizenship. Foreign-born Asians thus were not allowed to become citizens because they no longer were able to enter the country, and they could no longer enter the country because they were ineligible for citizenship. The consequence of these actions was that up to the mid-twentieth century, until race-based citizenship was formally ended by the McCarran-Walter Act in 1952, all Asian immigrants living in the United States, regardless of their racial category—yellow-Mongolian, brown-Malay, or white-Caucasian—were unable to become “American.” Thus, by connecting immigration and naturalization laws, Congress and the



courts were able to achieve a more consistent legal treatment of various Asian ethnic groups which had not been possible through existing racial definitions. This connection was reflected and reinforced by the new legal term created to explain the exclusion of Asian immigrants: “aliens ineligible for citizenship.”

Anti-Miscegenation Laws, Race, and Citizenship [S]tate-level anti-miscegenation laws moved beyond naturalization laws by also restricting the rights of U.S.-born Asian Americans. [I]n United States v. Wong Kim Ark (1898), the U.S. Supreme Court ruled that, regardless of race, people born in the United States were American citizens. However, in creating and expanding anti-miscegenation laws, state legislatures sought to forbid the racial mixing of whites with all Asians regardless of their nativity status. [A]nti-miscegenation laws seemed to directly contradict the provisions of the Civil Rights Acts of 1866 and 1875 and the Fourteenth Amendment (1868), which prohibited states from the unequal treatment of citizens and from restricting the rights of individuals to “make and enforce contracts” based on their “race” and “color.” First, they could rely on the argument that marriage was not a “contract” in the same sense as financial matters. The second argument that states could, and did, rely on was that these laws did not contradict the equal protection clause of the Fourteenth Amendment because both whites and nonwhites were treated similarly by these statutes since neither was permitted to marry the other. In the hundred years between the ratification of the Fourteenth Amendment in 1868 and Loving v. Virginia in 1967, the state and federal courts overwhelmingly upheld the legitimacy of state anti-miscegenation statutes. For U.S.-born Asians, the failure of state and federal courts to overturn anti-miscegenation laws as unconstitutional meant that their status as “nonwhites” overrode their legal status as U.S. citizens. In addition, by linking U.S.-born Asians with their more numerous foreignborn counterparts, these laws helped reinforce the presumption that their racial identities included a foreign component.

Conclusion From a contemporary vantage point, it is easy (and has become common) to argue that the more severe restrictions on naturalization faced by Asian immigrants was due to their greater racial distinctiveness. However, this ignores the fact that at the beginning of the twentieth century, immigrants from many European countries were considered racially distinct from the “Anglo” settlers that had founded the United States, and  .  .  . that Asian ethnic groups were viewed as racially diverse, and that some Asian groups, specifically Asian Indians, were originally considered “white.” My analysis of the Asian naturalization cases and state anti-miscegenation statutes shows that Asians were legally recognized and categorized as belonging to distinct


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racial and ethnic groups—yellow-Mongolians, brown-Malays, and white/Caucasian Asian Indians—and that members of these groups frequently utilized these distinctions in attempts to separate themselves from discriminatory practices aimed at other Asian groups. My examination of naturalization cases also reveals that the early reliance of courts on “scientific” racial categories to exclude Asian immigrants from citizenship prevented the development of a racial category that could be uniformly applied to members of all these groups. [T]he development of Asian as a legally meaningful category can be traced to congressional legislation and court rulings that successfully linked immigration and naturalization laws. Specifically, I argue that the treatment of Asian ethnic groups as legally similar is a result of circular legislative and judicial arguments directed toward multiple groups of people linked only by the geographic proximity of their countries of origin. These decisions made it impossible for people from these areas to come to the United States because they were ineligible to naturalize and at the same time made them ineligible for naturalization because they were barred from coming to the United States. Exigencies of the legal system thus led to the fusion of geographic, racial, and legal categories. In other words, Asians became “racialized” as Asians not because they were recognized as racially similar, but instead because they were members of the same category of aliens ineligible for citizenship. Similarly, because state anti-miscegenation laws were created to maintain the racial purity of whites, these laws were not primarily about grouping Asians together racially. Instead, the main consequence of marriage laws was to group together U.S.born and foreign-born Asians, within their distinctive racial and ethnic categories. The legacy of anti-miscegenation laws is that for Asians it privileged their status as racially distinct—whether that was yellow, brown, or white—over their nativity status. Thus, despite being citizens, U.S.-born Asians were legally viewed as “un-assimilable,” and grouped with their foreign-born brethren as “foreign” and fundamentally “un-American.” Therefore, unlike members of “newer” European groups who could shed their “alien” identity over time, Asian immigrants and their children found that their status increasingly defined by newly constructed categories that conflated geography, race, and foreignness.


Think of the Hippopotamus Rights Consciousness in the Fat Acceptance Movement Anna Ki rk l an d

Everyone is talking about fat people. Contemporary American society is experiencing a period of intense media attention and general cultural anxiety over the so-called obesity epidemic. Being fat is highly stigmatized and, following the tone of mass media coverage, most people attribute it to individual choices and behaviors. Attention to obesity supports narratives about the decline of American society from across the political spectrum. On the right, decrying obesity leads naturally to calls for greater personal responsibility and aids in dramatizing the dangerous expenses of national health care. On the left, critics target Big Food, corn subsidies, and junk food advertising to children for making people fat, linking the trend to corporate greed and overconsumption generally. [S]ociolegal scholars have not yet paid adequate attention to the ways that fat works as a sociolegal problem to naturalize and reinforce particular formulations of rights claiming. The crisis of fat is a compelling contemporary example of a “macrocontextual factor” shaping mass consciousness (McCann 2006). Law’s durability and ideological power, I suggest, comes in part from its widely accepted accounts of the deserving person as a properly functioning and responsible individual, free of disease, excess, or disablement. This is the person who can work, who looks after himor herself so that others do not have to, who is health-conscious, and whose body and movement in the world conform to a normalized standard. Mass cultural production of the unhealthy and morally decrepit fat person undergirds an account of what kind of person is undeserving of rights protections. Fat men and women are presumed to be in pursuit of weight loss and literally hoping to disappear as fat people. What if scholars reimagined them as citizens with claims to justice based on their status as fat? How would they make arguments for rights? Is resistance to the “lore” about fatness possible, and if so, in what terms? What do the ways fat acceptance advocates defend themselves tell us about our regime of civil rights protections? My aim here is first to understand more about how these stigmatized people—whose status has been the subject of so much intense public attention but who are not included in any major antidiscrimination law, receiving Abridged from Law & Society Review 42, no. 2 (2008): 397–432.



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only scattered local protections—explain themselves and what justice looks like to them. To that end, this article analyzes in-depth interviews with fat acceptance group members from across the country and also draws upon participant-observation and the study of primary source documents from the National Association to Advance Fat Acceptance, or NAAFA. Second, studying fat advocates is a way to ask about the ideological power of the law. How do those who defend fat people confront such a dominating cultural story about fat identity? Does the lore about obesity set the terms for advocates’ arguments that they are deserving citizens, and if so, how? Are there other terms for advocates’ arguments, perhaps mustered from the fat rights movement itself or from comparisons with other antidiscrimination categories?

Civil Rights Consciousness: Does Fat Fit? The idea that fat people should be protected under antidiscrimination laws is most often met with derision. Fat is considered quite unlike the traits usually protected in civil rights laws: race, religion, sex, national origin, age, and disability. Protected traits are classically those that bear a recognized history of oppression and are understood to be outside the realm of personal choice, irrelevant to one’s merit and capacities, and in the case of disability, a lamentable affliction to be overcome with gumption and equal opportunity. Fatness, by contrast, is understood as either analogous to smoking (i.e., an unhealthy and deadly condition brought on by behaviors but, once put in place, very difficult to change) or simply as physical evidence of overeating and laziness. Antidiscrimination law conceptualizes unfairness as rooted in governmental classifications that single out and burden groups of people without sufficiently good reason (in the case of equal protection) or in employment decisions based on protected traits (under Title VII of the 1964 Civil Rights Act). The dominant conception of what is gained is the right to be judged as an individual based on what is really relevant and important to the context, not based on stigmatizing, distracting, or irrelevant traits. This person is what I call the functional individual, whom I have argued elsewhere encapsulates the dominant logic of the person in American antidiscrimination law. The proper way to evaluate her is to measure her capabilities (that is, her functioning in a job or role) and to keep group-based stereotypes at bay (hence the emphasis on the distinctness of the individual). [M]any of my interviewees turned out to be deeply invested in this vision of just treatment in which the body and its abilities are dissociated completely. As one interviewee put it (echoing nearly all the others), “Body size has nothing to do with competence or value, ability to do a job. So I think it should be illegal to discriminate.” [A]dvocates must struggle with the contradictions inherent in trying to separate one’s body and how it looks from doing a job. Of course one cannot predict intelligence by examining the dimensions of someone’s body or whether she possesses the level and type of training or experience to do a job. Yet the body is how and where we work (and function) in the most fundamental sense. Many skills are dependent on certain operations of the body (strength, reach, dexterity, endurance, and capacities such as typing, walking,



speaking, or fitting into a certain space). Some jobs require that a person’s body project an embodied message, such as sensuality, humor, neatness, fitness, perkiness, youth, masculinity, or femininity. Is body size more like eye color, which almost never matters, or more like gender, which is “just the way a person looks” but also so much more? Disability law, by contrast, captures discrimination against people whose bodies are different in certain medically defined ways, and thus employment protections based on disability do not begin with the pretense of ignoring a person’s embodied appearance. A disability rights frame acknowledges that the rules about proper functioning are not themselves neutral, ahistorical, or non-political. A disability is then not something that is just wrong with a person, but rather it is a site of difference that exposes hegemony and injustice in the normal workings of the world. The problem is the stairs, not the legs of the person who uses a wheelchair to get around. At the moment, however, fat does not fit in the antidiscrimination pantheon because it cannot be squared with functional individualism if fat is unhealthy and folks just bring it on themselves. Fat does not fit into the Americans with Disabilities Act (ADA) framework if it is not an impairment on its own. Currently, then, those who try to come up with legal arguments for fat rights must argue that it is irrelevant and without meaningful implications if they want Title VII–type protections, but that it is a medicalized impairment if they want disability accommodation. It is a fairly impossible position to be in. Fat citizens’ lack of fit into antidiscrimination laws provides a rich perspective on what is required to fit, or at least, what citizens think is required to fit. Legality, as Ewick and Silbey explain, is what people both draw from and contribute to as they “participa[te]— through words and deeds—in the construction of legal meanings, actions, practices, and institutions.” Critically, citizens are “constrained by what is available, by legality as it has been previously enacted by others” (1998: 247). Fat acceptance advocates must enact legality bodily, as they move about the public sphere and go to work, and also discursively, as they describe their personhood in terms that help them fit into a pre-given description of a deserving person. Their identities push up against deep ambiguities in our understandings of what civil rights protections ought to be for and for whom. Fat acceptance group members are emblematic of outsiders looking into the law. They are highly conscious of their exclusion from the formal law nearly everywhere in the United States; they are the subject of high-pitched national media coverage that reinforces the reasons for that exclusion; and they construct their identities using many of the same ideological commitments and meaningful practices that seem to denigrate them, finding little purchase for alternative arguments. Fat advocates, as I show, exemplify a highly constrained and defensive enactment of legality, but one that must be enacted publicly and with as much dignity as one can muster, again and again, every day, in and through a body that no one will ignore.

Methodology: What Is the Fat Acceptance Movement and Who Joins It? The targeted population for sampling was defined as members of fat acceptance organizations, operationalized as anyone who had been a member or leader in NAAFA.


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Founded in 1969 and bearing an acronym reminiscent of the NAACP, the organization balances its civil rights orientation with concern for members’ social lives. Leaders of local NAAFA chapters were identified and contacted through chapter Web sites. This recruitment method was probably more likely to capture more politically minded leaders in NAAFA chapters than more casual “social” members. Snowball sampling yielded additional interviews from members of similar groups. Of course, by virtue of joining a fat acceptance organization, these men and women are preselected for positive views about being fat. I do not therefore investigate whether or not they support fat rights. I am interested in the logics they use as they describe their fat acceptance, and what those logics reveal about what is necessary for rights claiming. Because of the distances involved, most interviews took place by phone. The final sample contains 35 interviews of fat acceptance group members from nine U.S. states . . . and one from Canada. Four are men and 31 are women. They are overwhelmingly white, educated, middle-aged, and middle-class. Most people interviewed here reported themselves to be in the range of 250 to 400 pounds. My interview subjects would be recognized in most contexts as quite fat but for the most part were not housebound or users of scooters. Other research on NAAFA members with a wider range of sizes and abilities has found greater willingness to invoke disability as an analogy. Members were initially told that I was interested in hearing their reflections about being in the fat acceptance group without any mention of law or civil rights. The interview questions did not explicitly refer to law or discrimination until about halfway through, making it possible for me to watch for the interviewee’s invocation of law (or its absence) and to see what he or she would first discuss under the category of “unfair treatment.”

Managing Fat Identity in Everyday Life [T]he fat acceptance group members [I spoke with] described a regular set of distinct techniques they used to constitute an identity that was consonant with being a good worker and an individual rather than a health statistic. They described a richly detailed construction of a public self through which they anticipated, managed, and settled eruptions of discrimination and harassment. The work on the self and the development of culturally shared techniques for being a fat person in public are interdependent, showing how a person who understands herself as deserving yet excluded can still muster a form of legal personhood. This legal personhood is constituted by its exclusion but simultaneously by its commitments to the basic ideological underpinnings central to our antidiscrimination regime. It is a public identity for fatness that is suffused with legality but also guided by, as LeBesco puts it, “pursuit of an inhabitable subject position for fat people” (2004: 124). I call their techniques (1) moral instruction, (2) redirecting shame, (3) scanning, (4) positive self-presentation, and (5) ignoring mistreatment.



Moral Instruction Moral instruction is when a fat person delivers a didactic comeuppance to someone who has discriminated against her or otherwise rebuked her in the past. Moments for moral instruction function in much the same way as civil rights protections do: that is, instructing citizens that treating people badly or differently because of a trait they bear is wrong. Redirecting Shame Redirecting shame is what I call verbal responses to ill treatment. The technique is similar to moral instruction in that it is situational and interactive, but it is less “legal” in the sense of being less about teaching an antagonist the proper way to evaluate another person and more about showing off a new-found confidence in what NAAFA members called “snappy comebacks.” Scanning Scanning is a technique for assessing, surveilling, and planning one’s movements through the world to avoid discomfort and humiliation. Alice, a 54-year-old teacher from the greater Chicago area, explained how it works: When I walk in a room, I automatically scan it for difficult areas, chairs that look sturdy, chairs that don’t look sturdy, chairs that look ample to fit in, chairs that look like they might be a squeeze, any possible physical parameters in the room that might cause me embarrassment or anything else. It’s just a split-second automatic scan. And I do it without even thinking. And thin people don’t do that, OK?

Positive Self-Presentation Positive self-presentation is a state of nurtured self-confidence in the face of fat prejudice. Its purpose is to present a self to the world that will provoke nondiscriminatory treatment from others. Jacqueline articulated this theme again and again in her interview to explain how she keeps weight discrimination from happening to her. “I think my positiveness, the way I carry myself, the way I act and my professionalism really got me to where I am today. To me, I don’t care if you’re 10 feet tall or if you’re two feet tall or if you’re 5,000 pounds or 100 pounds, it’s how you carry yourself and how you come across that has a lot to do with it.” Ignoring Mistreatment Some respondents simply try to ignore ill treatment. When she could tell things were going badly in a job interview because of her weight, Foxglove, a woman in


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her sixties from Michigan who had spent her career as a civil servant, reported handling the experience “with disappointment, but I still kept a smile on my face. I still kept trying.” These techniques present ways to both enact legality and evade mistreatment and shift tactics in recognition of the absence of a formal law as a means of protection. [W]hile it would be wrong to say there is no use of or longing for the formal law among fat acceptance advocates, in the absence of legal protections, they have evolved these techniques for getting by in a hostile world. These techniques work as conduits for reimagining the self—not a self-hating fat person, but a confident woman whom no one even considers discriminating against. Perhaps these outsiders are showing us another side of the psychological self: not just the new person of late-modern liberal governmentality, but also a site of small resistances. They must act on their own to punish, teach, and organize against discrimination.

Mustering Legality: Using the Master’s Tools Defensively Is Being Fat the Result of Personal Choices? The next phase of the interviews probed explicitly for advocates’ reasons for thinking that fat people should not be discriminated against. Most immediately took up the “fat is unhealthy” argument. Fat had to be transformed from evidence of bad habits into a protectable trait. This process is a fundamentally defensive one, in which fat advocates must use the “master’s tools” to construct their own plausible inclusion. Nearly all respondents conceded that fatness was linked to voluntary behaviors such as eating but also insisted that most people are predetermined to fall within a certain range of weight that cannot be changed without herculean effort. Others drew explicit civil rights parallels that did not turn on proving the futility of dieting. As Monique put it, “I think that being made to purchase two seats for an airline is comparable to not allowing someone to sit at the front of the bus.” Many interviewees used analogies to other traits, explaining how fatness was or was not like being black or being gay. [W]hile many interviewees made these analogies to identity traits understood to be beyond choice (“You don’t choose to be black”), most also moved beyond the choice issue to stress the misery and disutility of dieting and then to describe a vision of nondiscrimination that did not really turn on the absence of choice. My interviewees were certainly in a difficult rhetorical position. The women struggled to describe their bodies as simultaneously mutable and stable, as deserving of protection from discrimination despite the awkwardness of the “like race” comparison. Functional Individualism and the Tension with Disability Rights The predominant way of justifying nondiscrimination against fat people was to use the logic of functional individualism. Alice’s view of employment nondiscrimination exemplifies the way functional individualism works in a job context: “A person



should be judged on their abilities and if they are able to do the job that is set before them. And those are the only considerations that should be brought into play: what are their abilities, what is their training, what is their background, what can they do?” Functional individualism is incompatible with disability rights, since if a person cannot do a job because he or she cannot physically fit in the work space, for example, then there is no reason within functional individualism itself to make any changes. As I noted earlier, the social model of disability would turn this individualism upside down, asking why the constructed world makes it possible for some to function and not others. In this view, disability is politically and socially created and is not some feature of abnormal bodies. Without this inversion, disability will be regarded through the lens of healthism or functional individualism, and “abnormal” or costly differences will not deserve to be ignored. Given the tendency of discourses of disability to lapse into endless individualization, such a move might dissolve their collective political critique. But it would more accurately capture the full range of feelings my interviewees expressed, as well as draw them back from endorsing health and ability as the taken-for-granted starting point for deserving rights. I was interested in how my interview subjects would consider the tension between removing attention to the “abnormal” body or giving it needed attention, so I asked then about whether they agreed that fat people should receive accommodations at work such as armless chairs. Reactions varied, but most interviewees were either sharply negative about being considered disabled (even if it would secure more rights) or highly pragmatic about using the label disabled. As Marilyn Wann put it, “In the dark times, you use whatever you have.” Macskat had no patience with the disability label and, in a typical move, referred to what real disability is to distinguish it from just being fat. “I’m not disabled. And a lot of fat people I know aren’t disabled. We just have a bigger butt. We need a bigger chair. That’s just common sense and common courtesy. Not like my mother, who is a thin disabled woman who gets around in a wheelchair. That’s disabled.” Disability studies scholar Rosemarie Garland-Thomson points out how well fat and disability can fit together. “The fat body is disabled,” she observes, “because it is discriminated against in two ways: first, fat bodies are subordinated by a built environment that excludes them; second, fat bodies are seen as unfortunate and contemptible” (2005: 1582). Even though fat rights attorney Sondra Solovay argues that disability law fits fat people too (2000), a real alliance is quite far off. The scholarly critique of disability as stigmatized abnormality has not filtered out to the ordinary sensibilities of most fat acceptance activists. Are disability rights for potentially everyone, or are they for a certain class of impaired people? If it is the latter, do they depend on a medicalized view’ of personhood, bringing with it notions of ill health and dysfunction, to demarcate that class? Even as their defensive posture means they must overwhelmingly reject being labeled “disabled,” fat advocates hone in on the undecided questions of disability rights in contemporary American law and society.


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Nondiscrimination as a Universal Ethical Imperative The second most common formulation of deservingness after functional individualism was to say that of course nobody should be discriminated against. Speaking in terms of “nobody” or “anybody” rejects categorizing people into traits entirely, shifting antidiscrimination from its status as a gate-keeping mechanism for arranging concern for only certain operations of stigma to status as a universal ethical imperative. Vicky’s formulation is . . . universal, noncategorical, and presented as an ethical imperative: “I think all human beings have the right to be treated with dignity and respect. No matter what. And I don’t think it’s right that anybody should be treated that way either publicly or privately for any reason. And that’s it.” [Vicky] transformed antidiscrimination law from functional individualism, with its delimited boundaries and usages, into an exhortation that [she] could use to describe a positive vision of a better world on a much grander scale than remaining within pre-given questions (“Is being fat a choice that makes you unhealthy?”) would permit. This universal ethical imperative is wholly inassimilable into the ways we currently reason about law. That is because antidiscrimination categories as traits one should ignore misses the whole point, as . . . Vicky would see it. The point is that one should be able to be fully oneself, in the body one has, eating, drinking, sitting in comfortably sized chairs, going out to dinners and movies with one’s daughter, and still be treated as a respected citizen. Here we see how the dominant logics in our antidiscrimination consciousness— reasoning through the narrow list of analogous traits that should be ignored while true merit is measured instead—demarcate and sustain a very narrow range of imaginable injustices. Only harms that come to an otherwise normal, striving person can be fit in easily. That person is just like the other deserving people but for this one little irrelevant thing. While this criticism of antidiscrimination law has been articulated from many perspectives, we can see here some of the discrete discursive formations that sustain it in ordinary speech, and how even articulate and thoughtful advocates have great difficulty finding words to get around it.

Conclusion: Deterring and Channeling Arguments for Rights The national focus on obesity has provided a unique opportunity to study the invocation and deployment of legal consciousness in a very specific but crucial dimension: a moment of great attention (and extremely negative attention, at that) on a highly visible group of citizens who must then struggle to muster an account of themselves as deserving of rights, despite their near-total exclusion from legal protection now. Undocumented immigrants, terror detainees, and gay and lesbian couples seeking to marry are related groups in this sense who must also draw upon settled logics of dedication to work, civil liberties or religious freedom, or monogamous commitment, respectively. In these cases as well, reference to already-dominant logics may be politically expedient, but they submerge more difficult questions about how to deal with difference.



[F]at people’s liminal position outside civil rights protections has let us see the possibilities and limits for fat citizens to articulate why they should be let in. Studying legal subjects at the margins so often turns out to be a way to better understand the center. Antidiscrimination consciousness, as I have argued, is sustained at the center by a set of ideological commitments to a certain kind of deserving person. The description of this deserving person slides off the tongue quite easily, as does its accompanying logic of “just treat a person as a person, not a size.” One might think the biggest challenge is changing public opinion about whether fat people can reasonably lose weight, and then legal protections will soon follow. But I suggest in these concluding observations that fat advocates have shown us a greater challenge: how to push beyond the tensions that assail the center of antidiscrimination consciousness as we realize just how fragilely imaginary the truly deserving person is. Real questions of justice loom for fat persons, who are both like and unlike those imagined deserving ones. In fact, sometimes they are hard to tell from everyone else.


Legitimizing American Indian Sovereignty Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship Erich W. Steinman

On August 4, 1989, 25 federally recognized Washington tribes and the state of Washington signed the Centennial Accord, in which all parties explicitly recognized the sovereignty of the other parties and established mutually acceptable procedures for conducting subsequent relations on a “government-to-government” basis. The Centennial Accord constituted a striking reversal of Washington State practices and generated national and international attention. Infamously, the state government and its citizenry had for years emphatically denied tribal sovereignty through their words and actions. Continuing with the previous practice of treating tribes and tribal members as ethnic groups subordinate to state authority, the state and its citizens earned a stinging rebuke from the federal judiciary for their joint resistance to local Indian fishing rights declared in United States v. Washington (1974). The Accord went beyond any action mandated by legal rulings or federal laws. Indeed, Washington’s unequivocal formal acknowledgment of tribes’ distinctive sovereign status set national precedent. This study attempts to explain this puzzling development while advancing an understanding of how law may be creatively used by marginalized groups to promote social change. I argue that this outcome was the result of a creative and “disillusioned” mobilization of law by a group of Washington tribal leaders. Over a 13-year period (1975–1989), these innovative leaders intentionally mixed various uses of law as part of a mode of agency known as “institutional entrepreneurship.” This approach emphasizes that taken-for-granted understandings of the social and political world underlie the routine application of policy approaches. By changing the operative understandings utilized by policy makers, entrepreneurs may be able to change the type of policies that are implemented. In the context of ambiguous legal precedent and widespread challenges to tribal rights, entrepreneurial tribal leaders mobilized latent discourses of federal Indian law that legitimated the sovereign governmental status of tribes. While judges had affirmed tribal sovereignty, the technical legitimacy of this legal principle did not compel state officials to take actions beyond acknowledging the narrow tribal rights it justified (and which were specifically upheld by the court). In light of the limited Abridged from Law & Society Review 39, no. 4 (2005): 759–91.




scope of actionable legal rights, tribal leaders importantly circulated tribal sovereignty discourses well beyond the field of law, but through the authoritative activity and voice of the state, to gain recognition of tribal political status. In doing so, tribal leaders sought to gain recognition within an existing political category—sovereign governments—in order to newly gain policy treatment only afforded to such governments. These efforts implemented a deliberate “strategy of position” to better situate tribes vis-à-vis future challenges, reduce political opportunities available to tribal opponents, and gain functional benefits not directly actionable via other means. Pursued explicitly by tribal leaders for more than a decade, the Centennial Accord was the result of these efforts.

The Study [T]his study examines the intentions and actions of Washington State tribal leaders, as articulated and enacted over a 13-year period. More concretely, the research tracks their entrepreneurial attempts, including their mixed use of law, to persuade various state actors to accept tribes as sovereign governments. The method I employ to study this effort [is] “process tracing”  .  .  . [which] relies on historical sequencing, close interpretation, and thick evidence, in addition to cohesive theoretical explanation. As part of the process tracing conducted for this study, I track a link between these tribal efforts and subsequent actions by state officials and can thus discuss the effectiveness of the tribal project. I have drawn upon a great breadth of data. One source is primary federal, state, and tribal documents containing communication between tribal and state officials, communication between state officials, and strategy documents generated by multitribal organizations. I also interviewed 11 former and present tribal and state officials in Washington State, as well as 33 state and tribal officials from other states.

Tribal Status in Law, Historical Practice, and Policy Informed by the widespread assumption that Indians were a “dying race,” in 1924 Congress unilaterally extended citizenship to all Indians. The Indian Reorganization Act (IRA), or “Indian New Deal” of 1934, ushered in a temporary reversal of assimilationist policy. The IRA created modestly empowered tribal governments and reservation “business councils.” Nonetheless, these were also heavily dominated by the U.S. Bureau of Indian Affairs (BIA). The failure of the IRA was followed in the early 1950s by the explicit policy of terminating tribes involuntarily. Though implementation faltered and was effectively halted within the decade, the policy remained formally in effect until 1970. In that year President Richard M. Nixon renounced termination and proclaimed “Indian self-determination” as the new policy principle. Rather than undermine tribes, Nixon declared, the federal government would support their existence, self-development, and self-determination.


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While emphatically pro-Indian, this reversal created ambiguity regarding tribal status, although few paid immediate attention to this abstract issue. Self-determination did not address the question of exactly “what” tribes were in the contemporary context or define their relationships with state governments. Among non-Indians, the taken-for-granted assumption was that all Indians, including tribal members, were unquestionably members of a racial minority group—and a historically “defeated” group at that. In practical terms, federal, state, and local officials commonly treated tribal bodies as ethnic associations subordinate to federal BIA jurisdiction, or, at most, akin to municipal governments obviously subordinate to the state. [P]rior to the 1970s federal Indian law had proven to be, at best, a historically undependable resource for tribes. Status and rights acknowledged as inherent and guaranteed by treaties had been denied, ignored, or revoked by officials of all branches and all levels of government. Treaties and court affirmation of tribal sovereignty coexisted with federal domination and inattention to sovereignty principles. Rights premised on a conception of tribes as sovereign or semi-sovereign nations were at best questionable when, as was the case beyond Indian country, tribes were no longer perceived as sovereign nations. Nor was the sovereignty discourse within Indian law part of the self-determination policy, as it remained absent from policy deliberations. But near the end of the 1960s, amidst more general declarations of treaty rights by Indians around the country, tribes began vocalizing treaty-based sovereignty claims with renewed vigor. It was in this context that tribes in the state of Washington began directly enacting, and litigating for, a range of governmental powers and rights, thereby offering an explicitly governmental conception of the contemporary meaning of tribal sovereignty.

Institutional Entrepreneurship and the Strategy of Position [I]nstitutional entrepreneurship is distinct from exclusively or primarily engaging in conventional power contests. [Institutional entrepreneurship] engages in “constitutive politics” (Berk 1994: 11). Such politics address the shared understandings that constitute socially intelligible and legitimate actors, categories, rules, and principles for action. Political actors and their actions are premised upon, and thus only made possible through, such shared understandings. In general, these understandings are taken for granted (or institutionalized) rather than being an explicit focus of attention. In that they constitute the shared cognitive backdrop of power politics and formal policymaking, taken-forgranted beliefs tend to promote predictable patterns of behavior. However, even when institutionalized, these understandings are not impervious to change. In light of this, institutional entrepreneurship seeks to disrupt taken-for-granted beliefs (or logics) and the linked governance structures (power arrangements) that reflect and manifest them. Discourses provide the language and clusters of concepts through which takenfor-granted logics can exist. As cognitive contexts, discourses enable and constrain what it is possible to think and speak about. [T]he ability to shift discourse is a



powerful political action with radiating effects. Accordingly, discursive innovation is one mechanism for enacting institutional entrepreneurship. The strategy of position, as introduced here, refers to a particular and narrow application of institutional entrepreneurship: the promotion of new beliefs and structures relating specifically to the status or standing of a particular group. A strategy of position seeks to change the perception of the group so that the group is newly included in an existing category of privileged actors. [Due to its organizational complexity,] the modern state is not a unitary entity. Some change efforts may profitably address a subsection of the state if it appears to be vulnerable or accessible. Crucially, actors operating in various agencies and other substate entities or fields may incorporate challenger claims because they assist the protection or expansion of bureaucratic turf or facilitate the achievement of substantive local goals. Because of these dynamics, institutional entrepreneurship introducing new discourses or transforming existing ones may be conducted within and through the state.

Tribal Entrepreneurs: Circulating and Applying Law’s Sovereignty Discourse Partial affirmation of Washington tribes’ governmental standing came in 1974 via United States v. Washington, a historical treaty rights ruling. Federal district court Judge George H. Boldt upheld the fishing rights of Washington tribes that had been promised in treaties with the U.S. government. In his ruling, the judge went beyond a declaration of user rights to affirm that “any one of plaintiff tribes is entitled to exercise its governmental powers by regulating the treaty right fishing of its members.” The broad precedent supporting treaty rights, and Judge Boldt’s allotment to tribes of 50% of the fish in question, were powerfully symbolic and substantively of tremendous importance. Resistance by state officials and citizen groups was quick and lasting. Throughout the rest of the decade and beyond, a host of state officials resisted the ruling in various ways. Attorney General Slade Gorton emphatically rejected the legitimacy of the ruling. Even after the Supreme Court declined to hear the case in 1976, Gorton’s office encouraged additional legal challenges. More narrowly, officials from the state departments of game and fishing reacted by disproportionately prosecuting tribal fishermen and apportioning low levels of fish to tribal fisheries. Among citizens of the state, a large and animated popular resistance to the ruling signaled support for rejectionist officials. In response to the strong backlash, tribal leaders reacted by unequivocally defending the rights as affirmed by Judge Boldt. One possibility was to respond by labeling tribal opponents as racist in nature, and by mobilizing support for tribes on the basis of tribal members’ racial minority status and their historic victimization. Similarly, tribal leaders could have clung closely to the newly advantageous realm of litigation. Around the country many tribal leaders dismissed any other meaningful interaction

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with state officials, asserting that due to their treaties with the federal government they did not have to deal with states. Washington’s tribal leaders, and most emphatically Quinault President Joe DeLaCruz, rejected both of these options. Their choices were guided by an explicit longterm vision they developed in the wake of the Boldt decision. They spelled out this vision and the strategy they would use to promote it in a series of formal documents starting in 1976. With a goal of clearly establishing the political status of tribes, and acceptance of this status by the state, they in general eschewed racialized discourses for framing Indian rights issues. For other reasons, they were strongly critical of purely legalistic strategies for change, even given the strength and importance of the Boldt ruling. As discussed at length in a 1980 report by an intertribal study group, excessive reliance on litigation made tribes “truly dependent upon lawyers who have only to gain by prolonging these disputes.” Focused on “legal rhetoric which nobody seems to understand,” litigation would not effectively promote broader change in public policies. Tribal leaders paid great attention to the constitutional vulnerability of tribes’ status, the variability in court rulings, and the temporal nature of the Supreme Court’s general support for tribes. In this regard they shared concerns with Philip S. “Sam” Deloria, who, although not from the Northwest, worked closely with DeLaCruz in the 1970s and 1980s. Expressing a view he has promoted since the 1970s, Deloria recently and succinctly noted that “if you are the state and you complain loud enough, someone might abolish . . . the tribe. If you’re the tribe and complain about the state, no one is about to abolish the state of New Mexico.” Deloria asserts that when active tribal governments become integrated and “locked in” within broader governmental procedures, it makes returning to previous policies “more difficult to accomplish” (Philp 1986: 188). Otherwise, as anomalies they would continue to stick out, virtually inviting legislative solutions. Addressing disputes in practical terms and keeping tribal status issues off the legislative agenda would serve to protect tribes. Along these lines, in place of racial frameworks and reliance on litigation, northwestern tribal entrepreneurs adopted an institution-building agenda to embed the tribal political status affirmed by Judge Boldt within the principles and practices of the state government. As DeLaCruz political associate [Rudolph] Ryser recounts, lacking any formal structuring of the state-tribal relationship by the federal government, “we said  .  .  . we have to create a mechanism or a structure or something between the tribes and the states . . . because the federal courts won’t do that. It was a question of trying to figure out how to create mechanisms for it.” [T]ribal leaders explicitly adopted the stronger term government-to-government to specify more clearly the nature of the intergovernmental relations they sought. More generally, tribal strategists were highly aware of the importance of language [as Ryser stated]: One of the things that we deliberately, certainly wanted and needed to do was to create the language that we would use. To describe what we were to do. It was always the language ahead of where we were. That way we would grow into the language, and as



soon as that language was co-opted our job was to change the language again. And keep the language moving.  .  .  . [I]f the [tribal] political leadership were seen to be the ones who provided the language then they could define what things meant. . . . [T]hey [tribal leaders] were very conscious of it.

Even without success at the highest levels of state government, however, tribal leaders ceaselessly declared tribal status and its implications in the unfolding interactions involving fisheries. Facing widespread state recalcitrance in the years following the ruling, tribes won victory after victory in the early 1980s in a special “fish court” Judge Boldt had established. In 1983, with approval by state political leadership, a cooperative approach was discussed between state and tribal officials at pivotal and tense meetings held at Port Ludlow, Washington. Guided both by concern for the resource and by their institution-building agenda, tribal leaders came to a rough consensus in support of a cooperative approach. The parties informally agreed to try to implement cooperative management. Tribal leaders used the opportunity to introduce government-to-government language into the domain of fisheries as premise of the negotiations. As former Washington State Fisheries Director Bill Wilkerson recounted in an interview from which I quote here extensively, “There was lots of discussion about whether to have any kind of government-to-government negotiation or discussion with the tribes.” Tribes insisted that other well-organized and influential groups of fishermen be excluded from the meetings. Wilkerson noted, “There was a lot of process tension. The tribes had a very fixed position—this was a government-to-government discussion. That terminology was very much in place.” While fisheries had to deal separately with other fishermen through public processes, department officials and tribal representatives would “meet as governments, as government bodies.” By the early 1980s, fisheries officials were well versed in Judge Boldt’s affirmation of tribes’ political status as well as the sovereignty tradition in federal Indian law. There was no doubt; tribes “did want to be treated like a government  .  .  . and there were enough of us who agreed with that position that we were able to work with them as a government.” Although a large number of fisheries personnel were vehemently opposed to any negotiations and “couldn’t overcome the sovereignty question,” the cooperative management approach gradually became a highly functional practice. Over a period of five years, the number of litigated cases dropped “from 70 to 40 to 20 to five or six” (Wilkerson 1993: 7). The emergent state-tribal cooperation began to generate additional and far-ranging benefits.  .  .  . [T]hese “collaborative events” (Wilkerson 1993: 13) helped develop what Fisheries Assistant Director Bob Turner described as an “institutional relationship. . . . [B]ecause so many people in both institutions . . . had to interact with one another so much . . . you have a whole new generation of technical biologists who grew up in that world, and I don’t think it will ever go back.” In the mid-1980s, tribal leaders again renewed efforts to promote their institutional agenda to state political leaders and to gain a wider acceptance of the government-togovernment recognition now operative within fisheries. At the beginning of Democrat Booth Gardner’s first term as governor in 1985, Quinault Chairman DeLaCruz


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solicited a formal dialogue with the governor to establish “formal contact.” After [an April 1988] meeting a group of tribal leaders solicited further action. Gardner responded with interest, and [his chief of staff Dick] Thompson was put in charge of the process. He was thoroughly educated by former Fisheries Directors Kurt Smitch and Bill Wilkerson, and Fisheries Assistant Director Bob Turner, which allowed these fisheries veterans to put their stamp on the emerging negotiations. A formalized government-to-government model was promoted by fisheries officials, reflecting both tribal wishes and the experience in fisheries. The deeply institutionalized government-to-government relationship in fisheries was consciously used as the model for the larger relationship framework. [T]he fisheries personnel who guided state participation in the negotiations made sovereignty a non-issue. For Turner, I knew the law, top to bottom, knew it all and knew where the sovereignty issue was. So, it was easy. We knew what the difficulties would be and we steered away from them. I do know we took time to make sure the cabinet was aware of the sovereignty status, not issue, in the sense of this is not up for debate.

State leaders did have to deal with a fair amount of confusion expressed by other state officials. Thompson developed a standard response by offering a comparison. “Whenever somebody wanted to argue about it I would say, ‘how would you deal with British Columbia?’ I would tell them ‘that is how you have to deal with tribes.’” In early 1989, after handily winning re-election a few months earlier, Governor Gardner issued a government-to-government proclamation recognizing tribal sovereignty. Having won from the governor the explicit recognition of their sovereign governmental status, tribes then wanted to extend the practical reach of this sovereignty talk. With tribal leaders still pushing, negotiations continued toward an outcome that would extend recognition of sovereignty beyond the governor’s office. On August 4, 1989, the state of Washington and 25 Washington tribes mutually recognized the sovereignty of the other part(ies) and established procedures for governmentto-government relations through the Centennial Accord. [A]s stated by Thompson, the Accord effectively ended debate about whether the tribes were sovereign. “It was all a little bit like . . . this closes the door on anyone who wants to assert that they don’t have sovereignty rights.” As he also noted in the same interview, “Every governor since then has recognized it as a force of obligation on the governor. The legislature would quickly tell you it’s not an obligation on us, but I think they would be loath to repudiate it.” The Accord’s emphatic affirmation of tribal sovereignty, and the ensuing practical spread of sovereignty and government-to-government discourse, legitimated tribal governments in ways that neither court rulings nor the claims of tribes themselves could.



Conclusion [T]he institutionalized acceptance of tribal sovereignty by the state of Washington was not a direct result of the historical Boldt decision, even though the ruling explicitly affirmed the contemporary saliency of treaties and tribes’ governmental status. Rather, the ruling was put to use as part of the larger and “coherent” tribal strategy, and through tribes’ institutional entrepreneurship. Developing the governmental regulatory powers affirmed by Boldt, tribes simultaneously made the government-togovernment relationship functional and beneficial to state fisheries officials. Tribes became deeply embedded in the intergovernmental business of regulating fish. Subsequently, in the context of repeated tribal advocacy for an overarching intergovernmental “mechanism,” fisheries officials became meaning entrepreneurs themselves. Armed with a deep—and practical—understanding of the pro-sovereignty tradition in federal Indian law, they definitively declared to other state officials that tribes were sovereign. Fisheries officials could credibly and persuasively interpret—in ways tribes themselves could not—the legal status of treaties and tribes to the broader state government. Judge Boldt’s strong affirmation of tribal sovereignty became the operative understanding of tribal status informing Washington State government practices. But it was not the only precedent the state could have plausibly affirmed as its formal position. Notably, another landmark case involving Washington tribes set Indian law precedent four years after Boldt. In Oliphant v. Suquamish Indian Tribe (1978), the U.S. Supreme Court issued a major blow to tribal sovereignty. The Court slightly shifted its interpretation of the basis of tribal powers away from inherent sovereignty. [T]he Oliphant interpretation meshed much better with the default state treatment of tribes than did the Boldt ruling. Yet the views expressed in Oliphant and other similar rulings were unequivocally displaced through the Accord by a pro-sovereignty understanding. The developments described above must be credited with this outcome. [N]orthwestern tribal leaders guided these contingent developments. Crucially aided by fisheries officials and other factors beyond their control, they took law from the courtroom and effectively inserted it into policy processes. Now, through the government-to-government training conducted as part of the Centennial Accord, the state itself proactively informs state employees that tribes are not minority groups or subordinate local governments. The authoritative power of the state is straightforwardly and explicitly engaged in the business of legitimizing treaties, tribal governments, and the government-to-government relationship. The powers of tradition, cognitive assumptions, and norms are now more likely to lean in tribes’ favor, rather than support efforts to resist tribal claims and tribal sovereignty.

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Blue Jeans, Rape, and the “De-Constitutive” Power of Law K i t t y Cal avita

On 10 February 1999, Italy’s highest court of appeals overturned the conviction of a driving instructor who had allegedly raped his 18-year-old student. The Corte di Cassazione reasoned that the young woman was wearing blue jeans at the time, so the sexual intercourse must have been consensual. The Justices proclaimed, “It is impossible to take off jeans . . . without the active cooperation of the person wearing them.” The decision set off a wave of protest across the political spectrum in Italy and around the world. Alessandra Mussolini, deputy of the right-wing National Alliance Party and granddaughter of former dictator Benito Mussolini, expressed outrage at the decision and organized a rally of female legislators—all symbolically clad in blue jeans. A vast literature addressing the constitutive power of law has recently emerged among law and society scholars. A central concern of these constitutivists is how “law contributes to the making of everyday consciousness and practice” (Hirsch and Lazarus-Black 1994: 20), reinforcing particular ideologies through the power of its own legitimacy and its ongoing affirmation of the taken-for-granted social reality. From this perspective, although law may occasionally be one step ahead of dominant understandings in a shifting normative order and thus may advance a morality that is not yet taken for granted (the desegregation cases in the United States beginning with Brown v. Board of Education are a good example), such precocious law is nonetheless “constitutive” in that it reinforces the emergent reality that it affirms. The Corte di Cassazione decision and the angry response it provoked are difficult to explain from this constitutive perspective. Indeed, the widespread backlash—and the anachronistic nature of the decision itself—appears to contradict the view of law and the everyday normative order as of one piece, or at least as mutually constituting. Rather than reinforcing the normative order it represents, the decision further undermines it. [A] straightforward constitutive perspective implicitly and inadvertently reifies “the law,” attributing to it a coherence and a unity that is both empirically elusive and theoretically at odds with the otherwise “everyday” focus of the approach. As we will see, although much of the constitutive literature at one level emphasizes the multiplicity Abridged from Law & Society Review 35, no. 1 (2001): 89–116.



K it t y C a l av ita

of law, its decentered nature, and the plurality of ways that law and social meaning interact, this insight is accommodated uncomfortably in a theoretical perspective that highlights the constitutive dimension of this interaction. I argue here that the constitutive quality of law is an empirical question. [L]aw sometimes sabotages the very ideologies it embraces. And, finally, I propose that it may be during “unsettled cultural periods” (Swidler 1986) that such “de-constitutive” moments are most likely. In other words, legal hegemony may be vulnerable not only to opposition—or resistance—from without but also to its own ideological missteps; and, the greater the legal legitimacy, the more shocking the misstep and the greater the counter-hegemonic potential. For, when an authoritative source such as law is so out of step with the evolving normative order, the discrepancy draws attention not so much to the fallibility of law, but to the folly of the outmoded moral vision it is caught endorsing.

The Italian Supreme Court, the “Scandalous Decision,” and Jeans for Justice Day The Corte di Cassazione is the highest appeals court in Italy. The appeals process operates somewhat differently in Italy than in the United States, as does the makeup of the Court. Most notably, Italy’s Corte di Cassazione comprises 420 Justices . . . who are divided between a civil court and a criminal court, and among different “sections” according to their specialty. Further, as a country of civil law, Italy’s appeals process is based on fundamentally different principles than is the U.S. common law system of precedents and constitutional interpretation. Among other things, the Italian Court of Appeals has some latitude to consider the merits of a case, including issues of guilt or innocence, not only questions of procedure. [A]ppointments and promotions are based primarily on seniority, thereby assuring some degree of independence of the Judiciary from the political realm. Thus, unlike in common law systems, judges and prosecutors are neither elected nor are dependent on political appointment. Despite these differences between the judicial system in Italy—and its independence from and influence on the political process—and those that prevail in common law countries, the Corte di Cassazione plays a role comparable in many ways to that of the U.S. Supreme Court. As Italy’s highest court of appeals, the Cassazione is the most authoritative judicial body in the country and is often referred to as the Supreme Court (“Suprema Corte”). The Court’s ruling in this case reversed the 1998 decision of a lower court in southern Italy that had found a 45-year-old driving instructor, Carmine Cristiano, guilty of raping his 18-year-old student and had sentenced him to two years and eight months in prison. In overturning the conviction, the Corte di Cassazione reasoned that women in blue jeans must be complicit if sexual intercourse takes place. It said, “It is a fact of common experience” that tight blue jeans cannot be removed “even in part, without the active cooperation of the person who is wearing them.” It also registered suspicion as to why the victim waited for several hours before telling her parents of the attack and questioned why there were no scars or signs of resistance on



the victim or alleged perpetrator. The Justices argued, “It is illogical to suggest that a girl would submit passively to a rape, which is a grave assault on the person, out of fear of some other hypothetical and certainly not more serious harm.” The decision set off what one journalist called “an authentic political earthquake.” A legal scholar observed sardonically, “This decision has done what few legal decisions do: It has succeeded in making everyone agree. In opposition, unfortunately.” The normally conservative Rome newspaper, Il Messaggero, ran a front-page story ridiculing the decision, saying it “read like an instruction manual for aspiring rapists.” The same front-page article lamented that the decision “takes us back to the days when the victims of rape were put on trial instead of their offenders.” It concluded sarcastically that Strauss (the legendary inventor of denim jeans) did not realize what a “versatile” garment he had created, “because from now on aspiring rapists will know to leave girls in jeans alone. And designers for years have not known they had in hand the most extraordinary anti-rape invention of the century. Like a chastity belt . . . in case of bad company.” The following day, a journalist pointed out that the decision was “considered retrograde.” [T]he pervasiveness of the intense negative reaction across the political spectrum and throughout the mass media reveals the degree to which this decision was at odds with the gender ideology of at least these spokespeople for what, for lack of a better label, might be called the dominant culture. It may even be that some hypocrisy was present, as many of these spokespeople no doubt occasionally revert to traditional gender roles in their private lives, and perhaps privately express attitudes not dissimilar from those of the Court. What is important here, however, is that there appears to be a culturally dominant and publicly acceptable ideology that is diametrically at odds with this decision, and, as I will argue, is perhaps ironically advanced even further by it.

The Ideological Power of Law Durkheim ([1893] 1933) posited that a close relationship exists between law and the “collective conscience” of a society. In this functionalist view, not only are laws the codified expression of society’s values, but also legal sanctions against violators that serve to avenge the collective conscience, clarify the boundaries of acceptable behavior, and generally reinforce the normative structure of society. Durkheim’s model has intuitive appeal, but the absence of power or conflict is striking and has significantly limited its use in contemporary