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highly politicized and polarized decisions [e.g., National Federation of Independent Business v. Sebelius (2012), a.k.a. Obamacare] (Knowles et al. 2017). The perception of judges as ideologically motivated decision makers coupled with low approval ratings theoretically poses problems for the legitimacy of the judiciary. As Tyler (2006, p. 375) deﬁned it, “Legitimacy is a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just.” Legitimacy is important in a pluralistic society because it is a mechanism that promotes deference to authority while allowing individuals to hold differing ideological and moral values (Tyler & Krochik 2013). Put differently, individuals may have moral or ideological disagreements with a particular rule or decision but will nonetheless defer to it if the authority is perceived to be legitimate (see Tyler & Mitchell 1994). It has long been recognized that legitimacy is vital to the survival and efﬁcacy of the USSC (e.g., Dworkin 1986, Wilentz 1984), and evidence suggests that it is on the conscience of USSC justices (Farganis 2012). The US adjudicatory framework contains two features that are designed to ensure the legitimacy of the unelected judiciary. The ﬁrst feature is an elaborate legal procedure by which litigants have the opportunity to present arguments and furnish proof before the judiciary. Comporting to the established legal procedures is said to increase legitimacy. The second feature is the provision of “reasoned elaboration” for reaching a particular decision (the term was originated by Hart & Sacks in 1958; cited in Eskridge & Frickey 1994). Reasoned elaboration refers generally to the articulation of the reasons, arguments, assumptions, and logic underlying the chosen outcome (see Schauer 1995, White 1973). Of course, such elaboration is provided in a written opinion that accompanies the decision. Much scholarly commentary and theorizing have stressed the importance of reasoned elaboration in judicial opinions (Shapiro 1992). Although the purposes are numerous and varied (see Chemerinsky 2002, Leﬂar 1961, Schacter 2016), reasoned elaboration is designed to serve two 206 Scurich general objectives: to be didactic to the legal profession, including lower courts, law professors, and law students, and to be persuasive to the laity. Perhaps the most inﬂuential proponent of the didactic purpose of reasoned elaboration in judicial opinions was Wechsler (1959, pp. 15, 19), who argued that “the main constituent of the judicial process is precisely that is must be genuinely principled,” and “a principled decision, in the sense I have in mind, is one that rests on reasons with respect to all issues in the case, reasons that in their generality and their neutrality transcend any immediate result.” As Fried (1999, pp. 809, 810–11) put it, “without those reasons the decision in any particular case would be of quite limited signiﬁcance,” for general principles and legal theories cannot be deduced without explanation of “how it ﬁts with past decisions, the applicable texts, the principles explicit and implicit in those decisions, and a general political and moral theory of constitutional law in which those decisions and principles are embedded” (see also White 1995). This didactic purpose also serves the eminently practical function of enabling lawyers and judges to make predictions about the future course of the law and the applicability of law to analogous cases, and ultimately whether to litigate or avoid engaging in costly and unnecessary legal battles (Wells 1994). The persuasive purpose of reasoned elaboration in judicial opinions seeks “to persuade their colleagues and the public that they are moving law in the right direction” (Wald 1995, p. 1372). Judge Weinstein (2014, p. 289) concurs, noting, “We write many opinions for that purpose, knowing that the opinion may ultimately sway the public.” Indeed, Judge Wald (1995, p. 1386) notes that convincing the reader of the correctness of the opinion is a primary objective: “When an appellate judge sits down to write up a case, she knows how the case will come out and she consciously relates a ‘story’ that will convince the reader it has come out right.” The persuasive purpose fundamentally seeks to mitigate the perception that the decision is arbitrary or merely derives from the naked political preferences of the judge, which in turn justiﬁes the exercise of power by an unelected judiciary over citizens (Dworkin 1986, Fuller 1978). To put it sharply, “without opinions containing persuasive reasons, we risk...fostering widespread cynicism about legal institutions, if not outright
disrespect for the law” (Wells 1994, p. 88). This review focuses on the persuasive purpose of reasoned elaboration, especially with regard to the lay public. Whether or not reasoned elaboration effectively serves its didactic purpose to the legal profession is not considered here. STYLES OF ARGUMENTATION IN JUDICIAL OPINIONS The substance and form of judicial opinions have been the subject of extensive scholarly commentary (Altman 1990, Chemerinsky 2002, Ferguson 1990, Gewirtz 1996, Leﬂar 1961, Posner 1995, Tushnet 1994). Speciﬁcally, one feature that typiﬁes American appellate court decisions is that they are unequivocal, one-sided, and lacking of any doubt that the appropriate outcome was reached as a result of airtight logic. In short, they are overstated (Simon & Scurich 2013a).1 As Judge Posner (1988, p. 865) described it, Most judicial opinions even in the toughest cases depict the process of reasoning as a logical deduction (syllogistic or enthymematic) from previous decisions or from statutes viewed as transparent sources of rules, and, consistent with the logical form, imply that even the very toughest case has a right and wrong answer and only a fool would doubt that the author of the opinion had hit on the right one. 1Numerous terms have been used to characterize this style of opinion writing or argumentation: Kahan (2011) refers to it as “expressive overdetermination”; Simon & Scurich (2011) refer to it as “monolithic reasoning”; Posner (1993) refers to it as “apodictic certainty.” The term overstated will be used in this manuscript. www.annualreviews.org • Legitimating Judicial Decisions 207 To illustrate this phenomenon, Simon (1998) analyzed the case of Ratzlaf v. United States (1994), in which the USSC had to interpret a federal criminal statute that requires banks to report ﬁnancial transactions in excess of $10,000, and it sets forth criminal penalties for people who “willfully” structure ﬁnancial transactions to avoid the reporting requirements. Ratzlaf was in debt to a Reno casino. To avoid the reporting requirement, he withdrew less than $10,000 at 11 different banks to repay his debt. He was convicted of violating the federal statute. Ratzlaf ’s appeal revolved around the statute’s willfulness requirement, which entailed six core issues: (a) the textual meaning of the term willfulness; (b) the legislative intent underlying the willfulness provision; (c) the nefariousness of ﬁnancial structuring; (d ) the applicability of the rule of lenity; (e) the applicability of the principle that ignorance is no defense; and ( f ) the effect of the decision on the ability to administer the statute. Simon (1998, see pp. 65–72) mapped out how each of these issues relates to a particular outcome, how each of these issues relates to one another, and how inferences about one issue affect the other issues. In all, Simon (1998, p. 67) traced 64 inferences and noted that approximately half supported one conclusion and half supported the rival conclusion. Ratzlaf’s conviction was overturned by the USSC in a 5–4 split decision. The near-equal split in votes is consistent with the notion that the legal question in the case was ambiguous. However, the Court’s (majority) opinion was buttressed by all 64 inferences, and not once did the opinion acknowledge that an inference could question the correctness of the decision or lend support to the alternative conclusion. The dissent’s opinion displayed the same style of argumentation but with obverse conclusions. For example, the majority applied the rule of lenity, but the dissent adopted its exception, and the dissent applied the rule of ignorance is no defense, whereas the majority applied its exception (see also Tolk 1995). These lopsided opinions deny not only the validity of the rival opinion but also that there is any uncertainty in their reading of the law. Ratzlaf is an apt case to examine the phenomenon of judicial overstating because the case deals with technical legal issues that have no political or ideological resonance. In fact, the opinions in Ratzlaf were joined by justices from opposite sides of the ideological divide (e.g., Scalia joined Ginsburg’s majority opinion, and Thomas joined Blackmun’s dissent). Because members of the public are not likely to hold strong prior beliefs about the legal issues addressed in Ratzlaf, nor does the decision appear to have any social policy implications, an overstated opinion seems particularly unnecessary to persuade individuals who likely did not feel strongly about the issue before the decision was rendered and likely do not feel
strongly about the issue after the decision was rendered (see Nicholson & Hansford 2014). Yet, that style of argumentation persists. Judge Posner (1995) describes a highly similar style of argumentation in a “randomly selected” DC circuit court case, United States v. Morris (1992). In brief, Morris was convicted of having used a gun during and in relation to a drug trafﬁcking offense after a jury determined he possessed 100 individual ziplock bags containing cocaine along with a pistol in his nightstand and two guns in his living room couch, the location where police apprehended him. Posner (1995) notes that several issues in the legal claims are uncertain and open to interpretation. The opinion, however, with its patient marshalling of factors and facts and its dense citation of previous cases (twenty-ﬁve in all, mostly concerned with the gun charge), is calculated to sweep the reader along to a conﬁdent conclusion that Morris was guilty of the gun offense as well as of the drug offense. (p. 1442) In reading the opinion, “one begins to sense that an elephant gun is being discharged against a mouse” (p. 1438), and it ultimately and inevitably leads to only two possible outcomes: “Heads the government wins, tails the defendant loses” (p. 1440). This “rhetoric of inevitability” contains several common features: 208 Scurich the jargon, the solemnity, the high sheen, the impersonality, the piled-up details conveying an attitude of scrupulous exactness, the fondness for truisms, the unembarrassed repetition of obvious propositions, the long quotations from previous cases to demonstrate ﬁdelity to precedent, the euphemisms, and the exaggerated conﬁdence. (Posner 1995, p. 1430) Kahan (2012) has questioned the wisdom of furnishing overstated judicial opinions, a practice he describes as “comical” and disturbing because hyperbolic certitude diminishes the legitimacy of the law by conveying to those who are disappointed by the outcome of a case that the judge who decided it was biased, and intent on deception. It also denigrates reason. It embodies in the law an attitude that breeds cynicism and dulls reﬂection. Instead, Kahan (2011, 2012) advocates for aporetic reasoning. The key feature of aporetic reasoning is an explicit acknowledgment that the issue being considered is complex, uncertain, and ambiguous and lacks a simple resolution. By acknowledging such features, the opinion concedes that both sides have compelling arguments and that the judge is not simply making decisions that conform to her ideology, while at the same time justifying the decision that is rendered. Whether aporetic reasoning has the positive effects Kahan portends is ultimately an empirical question. THE EFFECT OF JUDICIAL ARGUMENTATION ON LEGITIMACY Simon & Scurich (2011) sought to provide preliminary insight into how lay people evaluate judicial opinions. They presented 700 lay participants with synopses of three cases that were decided by an arbitrator, a judge, and an appellate court. The materials contained a summary of the legal procedures, which were always described as appropriate; three main arguments made by the lawyers of each side; and the court’s decision, accompanied by the reasons for that decision. The outcome of the decision was experimentally manipulated: Half the time it favored the plaintiff, and half the time it favored the defendant. Participants were presented with one of four different modes of reasoned elaboration in the opinion: (a) No reasons were provided; (b) only a single reason supporting the outcome was provided; (c) multiple reasons supporting the outcome (akin to overstating; herein monolithic reasoning) were provided; or (d ) multiple reasons supporting both sides of the dispute (herein aporetic reasoning) were provided. Participants were then given items to evaluate the legitimacy2 of the judicial opinion, and ﬁnally, participants were asked how they would have decided the case. One of the key ﬁndings was that the evaluations were heavily inﬂuenced by the congruence between the outcomes of the judges’ decisions and the participants’ preferred outcomes. In all three cases, participants gave high evaluations when they agreed with the outcome and low evaluations when they disagreed with the outcome, despite explicit instructions to focus on the manner in which the decision was made and to disregard the outcome. The mode of reasoning had no effect on ratings of legitimacy when participants agreed with the outcome; for instance, monolithic reasoning (i.e., providing multiple reasons supporting the outcome) did not result in higher ratings of legitimacy than when no reason was provided at all. However, when participants disagreed with the outcome, the ratings of legitimacy were affected 2The measurement of legitimacy is a complicated topic that is discussed in the section titled Directions for Future Research. The studies reviewed here
all used different measures to assess constructs that are conceptually similar to legitimacy. For the sake of clarity, the term legitimacy is used in this section, fully recognizing that some studies use different terms for this construct and different items to assess it. www.annualreviews.org • Legitimating Judicial Decisions 209 by the reasons provided. Providing a single reason was deemed less legitimate than providing no reason at all, and opinions containing monolithic reasoning were deemed less legitimate than opinions containing aporetic reasoning. A fairly obvious limitation of Simon & Scurich’s (2011) study is that members of the lay public rarely if ever read judicial opinions. Although this does not in itself explain the pattern of results detected, particularly with respect to the reactions to reasoned elaboration for participants who disagreed with the outcome, the conventional source of information about judicial opinions could have some effect on the tendency to evaluate opinions based on agreement or disagreement with the outcome. Indeed, Sunstein (2007) hypothesized that “general interest intermediaries” (e.g., legal commentators or news reporters) could mitigate the deep ideological divides that animate US politics perhaps by providing a neutral perspective on the quality of the decision. Simon & Scurich (2013b) tested this possibility in a study in which more than 600 lay participants were presented with a news story reporting the result of a recent judicial decision. Participants were presented with an overview of the case, including the arguments that were presented by both sides and the court’s decision, as well as the legal commentator’s analysis, which paraphrased the arguments made to the court. The commentator also opined whether she believed the appropriate outcome was reached. The mode of reasoning was held constant in this study; participants were always provided with aporetic reasoning. Consistent with the previous study, legitimacy ratings were driven largely by whether participants agreed with the outcome. If participants agreed with the outcome, the ratings of the court were high; if participants disagreed with the outcome, the ratings were low. A similar pattern of ﬁndings was detected for perceptions of the legal commentator. If the commentator endorsed the outcome that participants believed was correct, the ratings of the commentator were high; however, the ratings of the commentator were low when participants disagreed with the outcome that the commentator endorsed. It is important to reiterate that this study did not test the effect of reasoned elaboration per se, because the mode of reasoning (aporetic reasoning) was held constant across all experimental conditions. Rather, this study replicated and extended the ﬁnding that outcomes are the primary driver of legitimacy ratings. Put differently, agreement or disagreement with the outcome is what inﬂuences the legitimacy of the opinion even when aporetic reasoning appears in the opinion. These ﬁndings suggest that the outcome-dominated judgments of courts cannot easily be tempered by professional commentators. This conclusion could also provide some insight into the dynamic process that enables political polarization. Farganis (2012) conducted a similar experiment, presenting undergraduates with an ostensible opinion rendered by the USSC upholding a state ban on same sex marriage. Thus, the decision outcome was held constant (i.e., the ban was upheld). Participants were given one of three versions of the judicial opinion, which varied in terms of the types of reasons provided to explain the ﬁnding: legalistic reasons (e.g., referring to constitutional text and precedent), poll results (e.g., results of a public opinion poll), and religious reasons (e.g., referring to religious teachings). The judicial opinions were presented either as an excerpt from the court ruling or as part of a newspaper article. The latter also provided commentary that was designed to draw attention to the reasons. Although no differences were detected between whether the judicial opinions were presented as court-ruling excerpts or newspaper articles (note 7, p. 214), the type of reasoning did affect the legitimacy ratings: Legalistic reasoning yielded the highest ratings, followed by poll results reasoning; religious reasoning resulted in the lowest ratings. However, consistent with the results of Simon & Scurich (2011, 2013b), the effect of reasoned elaboration appears to be moderated by whether participants agree or disagree with the outcome of the case: The ratings were unaffected 210 Scurich by the mode of reasoning when participants agreed with the outcome, yet the ratings decreased for poll results and religious reasoning for participants who disagreed with the outcome.3 Bonneau et al. (2017) recently critiqued Farganis’s (2012) methodology and presented their own studies that examine the effect of reasoned elaboration. They argued that it is inappropriate to isolate legalistic reasoning from public poll reasoning or religious reasoning, because “no judicial decisions are justiﬁed purely on the basis of poll results or religion. Rather, these factors may be added to an opinion as a supplement to the legalistic reasoning” (Bonneau et al. 2017, p. 339, emphasis in original). As such, Bonneau et al. used an experimental design in
which a legal argument (either precedent or constitutional) was always presented and was sometimes accompanied by a moral argument, the results of public opinion polls, or both. Bonneauetal.presentedcollegeundergraduateswithaﬁctitiousnewspaper articlethatreported the USSC decision in Clapper v. Amnesty International USA (2013), a case involving the National Security Agency’s ability to conduct surveillance without a warrant. The USSC rejected the plaintiffs’ claims on the basis of a lack of legal standing to bring the claim forward. Bonneau et al. (2017, p. 343) state that this case was selected because it does not involve “hot-button” or partisan issues. None of the experimental manipulations affected legitimacy ratings; the ratings did not change whether the legalistic arguments were accompanied by public opinion poll results, moral arguments, both, or none.4 However, legitimacy ratings did depend on whether participants agreed or disagreed with the outcome of the decision, such that ratings were signiﬁcantly lower when participants disagreed with the outcome, consistent with Simon & Scurich’s (2011, 2013b) results.5 However, in contrast to the previous studies reviewed, the type of reasons provided did not affect legitimacy ratings for participants who disagreed with the outcome of the decision. Robinson (2014) reports the results of an experiment that examined the effect of reasoned elaboration when participants disagreed with the outcome by design. In this experiment, college undergraduates and workers recruited from Amazon’s Mechanical Turk (see Buhrmester et al. 2011) were presented with a newspaper article describing the results of a recent USSC decision 3The relevant results are presented in the bottom six rows of table 3 in Farganis (2012, p. 211). The statistical tests reported in that table compared agreers (with the case outcome) and disagreers (with the case outcome) within a speciﬁc type of reasoning (e.g., legalistic reasoning). For all three types of reasoning, the agreers had signiﬁcantly higher legitimacy ratings than the disagreers. The mean legitimacy ratings for the agreers are 6.99, 6.97, and 6.90 for legalistic, poll results, and religious reasons, respectively. By contrast, the mean legitimacy ratings for the disagreers are 6.3, 6.14, and 5.76 for legalistic, poll results, and religious reasons, respectively. A statistical test of the mean legitimacy ratings when the groups are decomposed this way is not provided. Nonetheless, the difference in the means for the disagreers appears larger than for the agreers. 4The failure to detect an effect for the moral argument and the public opinion arguments is less surprising when one considers the actual substance of the manipulations (from Bonneau et al. 2017, appendix A, pp. 358–59): In the moral argument condition, participants were told: Aside from precedent, when such complicated questions arise, our moral beliefs serve to guide our decision that the government should protect the country from potential terrorism. In the public poll condition, participants were told: The justices also cite recent poll results, whereby a majority of Americans report agreeing with these measures as a way to combat terrorism. Neither of these manipulations seem particularly compelling or informative, and apparently the participants agreed. 5Bonneau et al. (2017) also present the results of a second experiment. Interestingly, half of the treatment conditions in experiment 2 contain no legalistic reasoning, which is their critique of Farganis (2012). With regard to the results of experiment 2, Bonneau et al. (2017, p. 352) assert, “First, it is important to note that the results of Experiment 2 replicate the results of Experiment 1. (The replication results may be found in the online appendix.).” However, it is not clear how to interpret the replication (e.g., conceptual replication) because the designs in experiment 1 and experiment 2 are not identical (and the URL to the online appendix does not work). www.annualreviews.org • Legitimating Judicial Decisions 211 about gay marriage. The outcome of the decision always conﬂicted with participants’ prior beliefs about the propriety of gay marriage (participants were queried on their views about gay marriage prior to being presented with the stimulus materials, and they were presented with an outcome that supported or denied gay marriage accordingly). The decision was accompanied by one of three different types of reasoned elaboration: none, monolithic reasoning, or aporetic reasoning. The results revealed that aporetic reasoning had a positive overall effect on ratings of legitimacy compared with the control condition or the monolithic reasoning condition. Participants in the aporetic reasoning condition gave signiﬁcantly less negative ratings of the decision than they did when the decision was accompanied by no reasons or monolithic reasons.6 In contrast to
Simon & Scurich’s (2013b) results, however, monolithic reasoning did not reduce legitimacy ratings relative to aporetic reasoning. Because the judicial decision always ran counter to participants’ a priori beliefs about gay marriage, it is not possible to test the impact of agreement/disagreement with the outcome because the outcome always disagreed by design. In summary, a ﬁnding consistently detected across studies is that outcomes—not reasoning— are what largely determines legitimacy. This ﬁnding holds whether the outcome is experimentally manipulated (as in Simon & Scurich 2011, 2013b) or held constant (e.g., Farganis 2012). Another consistent ﬁnding is that reasoned elaboration is superﬂuous when participants agree with the outcome of the decision, although reasoned elaboration does appear to have some impact when participants disagree with the outcome. As Simon & Scurich (2011) found, aporetic reasoning, which acknowledges the complexity and uncertainty of the decision, appears to increase legitimacy relative to monolithic reasoning (see also Robinson 2014). The overall size of this effect is small, to be sure, particularly in comparison to the impact of agreement/disagreement with the outcome. However, based on the empirical literature to date, aporetic reasoning is the only way to augment legitimacy for those who disagree with the outcome of the decision. The impact of monolithic reasoning—the predominant form of argumentation in American appellate court decisions—on legitimacy ratings is equivocal, at least for individuals who disagree with the outcome of the decision. Simon & Scurich (2011) found that monolithic reasoning reduced legitimacy ratings for participants who disagreed with the outcome. In contrast, Robinson (2014) found that monolithic reasoning did not impact legitimacy ratings for those who disagreed with the outcome. Adding to the confusion is Farganis’s (2012) ﬁnding that participants who disagreed with the outcome were sensitive to the substantive type of reasoning (e.g., moral versus legal reasoning). Clearly, the use of monolithic reasoning in judicial opinions merits further study. DIRECTIONS FOR FUTURE RESEARCH ON THE STUDY OF JUDICIAL REASONING The number of empirical studies that have directly examined the effect of judicial reasoning on legitimacy is rather meager, and the studies are methodologically homogenous; they all use an experimental design in which participants read a spartan description of a judicial opinion. The importance of using a variety of different research methods to study a phenomenon cannot be overstated. A mixed-methodological approach that combines qualitative and quantitative methods is optimal (e.g., Johnson & Onwuegbuzie 2004). Given that this is a topic studied by researchers 6The data were disaggregated by the three experimental conditions as well as whether participants agreed or disagreed with gay marriage a priori. For participants who disagreed with gay marriage (and thus were given a case outcome upholding gay marriage), aporetic reasoning reduced negative views of the opinion; for participants who agreed with gay marriage (and thus were given a case outcome denying gay marriage), aporetic reasoning did not reduce negative views of the opinion from the control condition or the monolithic condition (Robinson 2014, pp. 19–20). The overall effect of reasoning type is not reported in the manuscript. 212 Scurich from a variety of different academic ﬁelds (e.g., political scientists, psychologists, and law professors), the opportunity is ripe to leverage different research orientations and approaches to gain a fuller picture of how legitimacy is affected by judicial reasoning and styles of argumentation. As a general matter, future research—especially future experimental research—ought to consider using richer stimulus materials. The average USSC opinion contains 3,000–5,000 words (Rosenthal & Yoon 2011), which is considerably more than the several-hundred-word summaries used in previous research. Moreover, the substance and quality of the reasons should be explored further; while previous research has used rather facile reasoning, it remains to be seen what effect comprehensive and complex reasoning would have on legitimacy. The study of the effect of judicial reasoning on legitimacy would improve by attending to the measurement of legitimacy. As Gibson & Nelson (2014) described, two facets feed into legitimacy: diffuse support (general attitudes toward the institution of interest) and speciﬁc support (reactions to speciﬁc outcomes and performance) (see also Gibson et al. 2003). Some have argued that diffuse support is gradually eroded as speciﬁc support decreases (i.e., as courts make unfavorable decisions, general support for the institution incrementally decreases; Baird 2001). There is debate about how aggressively speciﬁc support affects diffuse support (Bartels & Johnston 2013, Gibson 2015), though it seems clear that the two are conceptually distinct and important to differentiate when studying legitimacy within American democracy writ large (see Gibson & Nelson 2014; for
an alternative approach, see Klein 2015). Previous research has used confounded measures of legitimacy (see Table 1 for the items used by various research groups to assess legitimacy). The response items Simon & Scurich (2011, 2013b) used measured a construct they labeled “acceptability.” Although several items directly probed legitimacy, and all of their response items exhibited a high inter-item correlation, the extent to which the items tap diffuse or speciﬁc legitimacy is not clear. Simon & Scurich’s acceptability items may have tapped speciﬁc support as opposed to diffuse support, which explains the robust ﬁnding that legitimacy is driven largely by agreement with the outcome of the decision (see also Gibson & Nelson 2016). Other researchers (e.g., Farganis 2012) have used a more common scale containing six items that are said to measure diffuse rather than speciﬁc support (see Gibson & Caldeira 2011), and yet other researchers have used their own items altogether (e.g., Robinson 2014). Future research should conduct psychometric analyses of the response items that are said to measure legitimacy, and researchers should distinguish between whether they are measuring diffuse or speciﬁc support (DeVellis 2016). They should also explain and justify the choice to study a particular type. The importance of measurement also cannot be overstated. One of the underlying causes of the inability of many social scientiﬁc ﬁndings to replicate, the so-called replication crisis (Maxwell et al. 2015), has to do with poor measurement of the constructs being investigated (Loken & Gelman 2017). Low construct validity poses a threat that undermines any empirical exploration of legitimacy. An oft-heard criticism of studying public reactions to judicial opinions is that the public almost never reads judicial opinions. However, prominent legal commentators have noted that this may no longer be true (e.g., Chemerinsky 2002). Several websites are dedicated to the USSC and contain a number of features that make judicial opinions accessible to laymen (e.g., http://www.scotusblog.com/category/plain-english/). It is also not uncommon for electronic news articles to contain hyperlinks that direct readers to these sites or even directly to the judicial opinion itself. The increased accessibility of judicial opinions could inﬂuence not only how and whether the public reads judicial opinions but also how judges write opinions because they are aware that the audience of their opinions has greatly expanded in recent times (see Schacter 2016). Both topics are worthy of future study. www.annualreviews.org • Legitimating Judicial Decisions 213 It is worth underscoring the potential impact that the increased accessibility of judicial opinions has on the laity. Prior to dedicated websites, members of the general public would have had to access judicial opinions at a law library or rely on news reporters to explain the opinions that were deemed newsworthy in the ﬁrst place—a nonrepresentative sample of the court’s opinions (Spill & Oxley 2003). All of these factors produce selection effects that could materially inﬂuence the public’s reactionstojudicialopinions(Badas2016,Baird&Gangl2006,Ramirez2008).Similarly,members of the public select and trust news outlets largely based on ideological beliefs (Coe et al. 2008), and evidence suggests that the ideological bent of the news organization shapes how it reports the behavior of the judiciary (Bartels & Johnston 2013, Haider-Markel et al. 2006). However, Table 1 Various items used to assess legitimacy Reference Scale used Questions Bonneau et al. (2017, p. 344) 1 (strongly disagree) to 7 (strongly agree) Likert-type scale, recoded so that higher values indicated more support for the Court ■If the US Supreme Court started making a lot of decisions like the one you just read, it might be better to do away with the Supreme Court altogether (reverse scored). ■If judges on the Supreme Court were to make more decisions like the one you just read, they should be removed from their position (reverse scored). ■Based on the decision you just read, you believe the right of the Supreme Court to decide certain types of cases should be reduced (reverse scored). ■If the US Supreme Court is to continue making decisions like the one you just read, we ought to have a stronger means of controlling the actions of the US Supreme Court (reverse scored). ■Based on the decision you just read, you believe the US Supreme Court gets too mixed up in politics (reverse scored). ■If the Supreme Court were to make a series of decisions like the one you just read, you believe it would be best if the US Supreme Court were made less independent so that it listens more to what the people want (reverse scored). ■If elected ofﬁcials feel that the decision
you just read would be bad for the country, they should come up with their own policies instead (reverse scored). ■If the Supreme Court were to make a series of decisions like the one you just read, people should still be willing to defend the Court’s power. ■If a majority of Americans oppose the decision you just read, it should be ignored by the other branches of government (reverse scored). Caldeira & Gibson (1992, pp. 639–40) 5-point Likert scale Diffuse Support: ■The power of the Supreme Court to declare acts of Congress unconstitutional should be eliminated. ■If the Supreme Court continually makes decisions that the people disagree with, it might be better to do away with the Court altogether. ■It would not make much difference to me if the US Constitution were rewritten so as to reduce the powers of the Supreme Court. ■The right of the Supreme Court to decide certain types of controversial issues should be limited by the Congress. ■People should be willing to do everything they can to make sure that any proposal to abolish the Supreme Court is defeated. Speciﬁc Support (at p. 642): “We measured speciﬁc support by asking the respondents whether the Supreme Court is ‘too liberal or too conservative or about right in its decisions?’” (Continued) 214 Scurich Table 1 (Continued) Reference Scale used Questions Farganis (2012, pp. 209–10) 8-point Likert-type scale (1 = strongly disagree, 8 = strongly agree) ■If the US Supreme Court started making a lot of decisions like the one you just read, it might be better to do away with the Supreme Court altogether. ■If the Supreme Court were to make a series of decisions like the one you just read, Congress should reduce the Court’s power. ■If the Supreme Court were to make more decisions like the one you just read, the Constitution should be rewritten to reduce or eliminate the power of the Supreme Court. ■If elected ofﬁcials feel that the decision you just read would be bad for the country, they should come up with their own policies instead. ■If the Supreme Court were to make a series of decisions like the one you just read, people should still be willing to defend the Court’s power. ■If a majority of Americans oppose the decision you just read, it should be ignored by the other branches of government. Robinson (2014, p. 17) 6-point scale that measured agreement ■The court correctly ruled on the question of immutability. ■The court’s decision was in line with scientiﬁc consensus. ■The court’s argument was persuasive. ■The decision caused the subject to lose faith in the courts. Simon & Scurich (2011, pp. 712–13) 11-point Likert scale ■How satisﬁed are you with the manner in which the decision was made? ■To what extent was the decision made thoughtfully? ■How thoroughly did the arbitrator assess the evidence? ■To what extent was the decision made arbitrarily? ■How much effort did the arbitrator invest in the process of making the decision? ■How persuasive would the decision be to the average person? ■How legitimate is the arbitrator’s decision? ■To what extent does this decision justify the authority given to arbitrators to make these kinds of decisions? ■How competent is the arbitrator? ■To what extent do you ﬁnd comfort in the fact that the case has been resolved? Simon & Scurich (2013b, p. 803) 11-point Likert scale ■How satisﬁed are you with the manner in which the decision was made? ■To what extent was the decision made thoughtfully? ■How thoroughly did the judge assess the evidence? ■How legitimate is the judge’s decision? ■How competent is the judge? ■Do you think that the decision was made fairly? ■To what extent do you trust this judge to make good decisions in the future? ■Do you think that Ms. []’s commentary is fair? ■To what extent do you think that []’s commentary is legitimate? ■How competent is Ms. [] as a legal commentator? ■To what extent is Ms. []’s commentary thoughtful? ■To what extent is Ms. []’s commentary professional? ■To what extent is Ms. []’s commentary objective? ■To what extent do you trust Ms. [] as a legal commentator? now a larger segment of the population can directly access the opinion itself without having to rely on a preselected subsample of cases that are subjectively interpreted by news reporters. Future research should examine how the reduction in selection bias along with directly reading the complete opinion inﬂuences perceptions of judicial opinions and resulting legitimacy. www.annualreviews.org • Legitimating Judicial Decisions 215 CONCLUDING THOUGHTS Gibson & Nelson (2014) describe an apparent paradox when it comes
to the legitimacy of the USSC: One would expect that greater knowledge of legal realism (i.e., that decisions contain discretion and are inﬂuenced by ideology) would be negatively related to legitimacy. Yet, as an empirical matter, legitimacy does not depend on the view that judges apply the law mechanistically and without discretion. Rather, survey ﬁndings suggest that legitimacy depends on whether “discretion is being exercised in a principled, rather than strategic, way” (Gibson & Nelson 2014, p. 211). The existing research on how the public reacts to judicial opinions adds an additional level of complexity: Only those who disagree with the outcome of the decision are persuaded by reasoned elaboration, and even then, furnishing reasons matters only meagerly. There are many unanswered questions concerning how the laity reacts to judicial opinions; how to ween it off of outcome-driven evaluation; and the long-term, cumulative implications that speciﬁc decisions have on the legitimacy of the judiciary. Indeed, the conﬁrmation wars associated with the appointment of USSC justices virtually ensure that the public will increasingly see judicial decisions as the product of partisanship, not principle (Gibson & Nelson 2017). Reasoned elaboration contained in judicial opinions is one avenue to combat this perception. But it is important to recognize that reasoned elaboration is only one piece of the puzzle. Other factors that might inﬂuence whether USSC decisions are perceived as principled and fair ought to be the object of future empirical research. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS Special thanks to Dan Simon for helpful comments on a draft of this article. LITERATURE CITED Altman S. 1990. Beyond candor. Mich. Law Rev. 89:296–351 Audette AP, Weaver CL. 2015. Faith in the court: religious out-groups and the perceived legitimacy of judicial decisions. Law Soc. Rev. 49:999–1022 Badas A. 2016. The public’s motivated response to Supreme Court decision-making. Justice Syst. J. 37:318–30 Baird VA. 2001. Building institutional legitimacy: the role of procedural justice. Political Res. Q. 54:333–54 Baird VA, Gangl A. 2006. Shattering the myth of legality: the impact of the media’s framing of Supreme Court procedures on perceptions of fairness. Political Psychol. 27:597–614 Bartels BL, Johnston CD. 2013. On the ideological foundations of Supreme Court legitimacy in the American public. Am. J. Political Sci. 57:184–99 Bonneau CW, Kelly JT, Pronin K, Redman SM, Zarit M. 2017. Evaluating the effects of multiple opinion rationales on Supreme Court legitimacy. Am. Political Res. 45:335–65 Buhrmester M, Kwang T, Gosling SD. 2011. Amazon’s Mechanical Turk: A new source of inexpensive, yet high-quality, data? Perspect. Psychol. Sci. 6:3–5 Caldeira GA, Gibson JL. 1992. The etiology of public support for the Supreme Court. Am. J. Political Sci. 36:635–64 Chemerinsky E. 2002. The rhetoric of constitutional law. Mich. Law Rev. 100:2008–35 Clapper v. Amnesty International USA, 568 U.S. 398 (2013) Coe K, Tewksbury D, Bond BJ, Drogos KL, Porter RW, et al. 2008. Hostile news: partisan use and perceptions of cable news programming. J. Commun. 58:201–19 216 Scurich DeVellis RF. 2016. Scale Development: Theory and Applications. Thousand Oaks, CA: Sage Dworkin R. 1986. Law’s Empire. Cambridge, MA: Harvard Univ. Press Epstein L. 2015. Some thoughts on the study of judicial behavior. William Mary Law Rev. 57:2017–74 Eskridge WN, Frickey PP. 1994. Commentary: The making of The Legal Process. Harvard Law Rev. 107:2031– 55 Farganis D. 2012. Do reasons matter? The impact of opinion content on Supreme Court legitimacy. Political Res. Q. 65:206–16 Ferguson RA. 1990. The judicial opinion as literary genre. Yale J. Law Humanit. 2:201–20 Fried C. 1999. Scholars and judges: reason and power. Harvard J. Law Public Policy 23:807–32 Fuller LL. 1978.
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not know how or why he lost his foot, but we do know that the University of Pennsylvania considered his body to be “condition—good.” The medical school paid $10 to have it delivered by the state agency charged with body distribution, and it was counted toward the quota of 11 bodies that the university faculty had been promised by the state that month. Most of the “good” bodies the university received that year had made the transition from person to corpse in more mundane ways, dying from organ failure, dropsy, tuberculosis, dysentery, or other common maladies of the time. A few found their way by means of “syphilitic insanity” or “fatty degeneration of the heart.” The “condition—bad” bodies were buried by the state right away, with no money changing hands. Body #669 that year was “buried on account of mutilation by pest.” Body #691 was “buried on account of mutilation by post mortem.” Body #108, having been judged “condition—fair” by the board, was rejected by Hahnemann Medical College because an autopsy had “made it useless.” The board replaced it with Body #129, which had also been deemed “condition—fair” (Anat. Board State Pa. 1902). These numbered corpses were male and female, white and black, young and old, married and single, or very occasionally divorced. While alive, they had been “natives” of Philadelphia, Atlanta, Baltimore, Ireland, Poland, and “unknown.” They had worked as housewives, laborers, clerks, miners, and, again, “unknown.” They were mostly poor, which we know because they died at the public hospital in Philadelphia, or in poor houses or poorly ﬁnanced convalescent homes, with no arrangements for what would happen to them after death and no one with both the desire and the means to claim them. Some of their bodies went to the University of Pennsylvania (which, though promised only 11 every month, sometimes got as many as 37 bodies when enough were available and the school was willing to pay); some went to Jefferson Medical College; some went to dental schools and to smaller medical colleges, and some made the trip all the way to the University of Pittsburgh for study, also at $10 each. We know these things because we have the very tidy ledger books of the Anatomical Board of the State of Pennsylvania, an agency created by the state legislature in 1883 “for the distribution and delivery of dead human bodies...to and among such institutions and persons as, under the provisions of this act, are entitled thereto” (Unclaimed Cadavers, Distribution and Disposition Act of June 13, 1883, 1883 Pa. Laws 119 No. 106). Pennsylvania’s board was among the ﬁrst of its kind in the nation, and it was hailed as a model as states struggled to ﬁgure out how best to get useful and valuable corpses into the hands that could make best use of them (Dwight 1896, Mears et al. 1896, Sappol 2002, Science 1896). Occasionally—approximately once a month—a body would be claimed by a relative or friend after it had already been delivered to a school. The ledgers keep a clear record of those occasions, identifying when and where which numbered body was retrieved, and by whom, and what relationship that person claimed to the person the corpse had been. A note was made next to each of those entries, and also next to a corresponding later one, in the ledger column marked “substitute.” Schools were not charged for substitute bodies, as they had been part of a previous month’s allocation, and the fee had already been paid. This careful accounting and record keeping was part of an effort to rationalize the distribution of human corpses, and in large part the ledger books do a convincing job of reducing each corpse to a commodity. The bodies were not technically bought or sold—legislation and governing documents insist that the charges were for storing, shipping, and record keeping—but each corpse became an interchangeable item with a particular exchange value based on features and condition. Only the occasional outlier, like the 87-year-old with the missing foot, stands out in the records as person rather than thing. 116 Stroud And this is the central puzzle of the law of the dead: The human corpse is a thing, a material object—a messy, maybe dangerous, perhaps valuable, often useful, and always tangible thing— and the law has much to say about such things. But the dead human body is also something very different: It is also my father, and my friend, perhaps my child, and some day, me. For even the most secular among us, a dead human body is at the least a very peculiar and particular kind of thing. The Pennsylvania Anatomical Board was an early attempt to rationally manage human corpses as useful objects for the needs of medical
educators and students, and the challenges the board faced persist today: balancing the needs of the medical profession, and the good that doctors can do for living patients, with the desires of individuals and their loved ones for what they consider respectful and respectable treatment after death, and the status of the human corpse in the United States as a kind of quasi-property, something that cannot be bought or sold, but to which some people have stronger claims than others. Navigating that legal, intellectual, and emotional terrain—then as now—often meant and means that the corpses of the least powerful— the poor, the nonwhite, the unknown—are the ones most often treated as things, not ofﬁcially property, but hardly distinguishable from it. Scholars generally divide the law of the dead body into three intertwined realms: deﬁning the dead (That is, when is a body dead, and who gets to make that determination?), using the dead (What kind of uses can a dead body be put to, by whom, and under what circumstances?), and disposing of the dead (What can and what must be done with a dead body at the end, and what must not be done?). Debates in each area center on where and how to draw the line between person and object. The thing-ness of the dead human body is never stable or secure. DEFINING (AND USING) THE DEAD The legal morass of deﬁning death itself is of relatively recent vintage. The members of Pennsylvania’s Anatomical Board a century ago were not worried about whether the bodies they were distributing were dead; they were conﬁdent that the criteria for death, whatever those criteria might be, had been met. By the late twentieth century, however, advances in life-sustaining technologies coupled with increasing demand for organs of the very recent dead for transplant procedures meant that deﬁning the moment of death had become simultaneously far more difﬁcult and far more fraught. Nevertheless, the underlying concern remains the same: When, if ever, can one rightfully begin treating a human body not as a person but as a thing (Capron 1980)? This was the question at the center of the Uniform Anatomical Gift Act of 1968, which addressed the problem of liability facing doctors harvesting organs for transplants. Before the states adopted that act, doctors were at risk of being prosecuted under state laws aimed at stopping grave robbing. If one had to go through a board like Pennsylvania’s to procure a dead body, then organs fresh enough for most transplant operations would be impossible to source. This new act was legislation recommended by a national committee of lawyers for adoption in every state, a necessary step for creating something approaching a national policy in a realm governed by state law. The language of the act (which was updated in 1987 and 2006) or something very close to it has been adopted in every state, and it allows individuals to legally designate their organs for donation following death and also allows doctors—with the permission of the deceased or heirs—to harvest organs for transplant immediately after a person has died. And that led to the need for another uniform law: one deﬁning the moment of death. When, precisely, would it be legal for the harvesting to begin (Lock 2001, Youngner et al. 2002)? Doctors, lawyers, and ethicists debated possible language for such a law for years. The same year that the 1968 Anatomical Gift Act was drafted, Harvard held a landmark conference of physicians, legal scholars, and clergy with the intention of deﬁning death, but marking a clear line eluded www.annualreviews.org • Law and the Dead Body 117 both that gathering and many that followed. It was not until 1980 that the National Conference of Commissioners on Uniform State Laws drafted what became the Uniform Determination of Death Act, which was ultimately passed in some form by every state. That act deﬁnes death as either the complete and irreversible cessation of breath and heartbeat (cardiac death) or the irreversible cessation of all brain activity, including involuntary activity controlled by the brain stem (brain death). For the ﬁrst time, it was legally clear that a person with a beating heart could be legally dead (Pres. Comm. Study Ethical Probl. Med. Biomed. Behav. Res. 1981, Washington 1991). The new clarity on criteria was key. Advances in medicine and technology meant that machines could seemingly keep hearts beating and lungs inﬂating with air indeﬁnitely, and so being able to mark death in some other way became necessary. Brain death, although fraught with its own ambiguities, could help. Organ harvesting had brought the confusion over determining the moment of death into high relief, but being able to mark such a moment is also important for caregivers and relatives making choices about how long to continue life support and when to disconnect machines. In addition to ethical and emotional considerations, such decisions can have wide-ranging ﬁnancial
implications (Can a doctor continue to charge for care? Must an insurance company continue to pay? Will a pension continue to be paid? Will an inheritance be distributed?). If medicine was unable to deﬁnitively mark the arrival of death, the law needed to step in. Yet despite the seemingly bright line offered by the uniform state laws, identifying the moment a person becomes a thing without doubt or controversy remains an elusive goal. Debates continue over the relationship between cardiac death and brain death (Are the two interdependent? Is one merely a marker for the other?), as well as over the deﬁnition of irreversibility and the ethical implications of making such determinations for utilitarian ends (Cantor 1987, 2010; Fry-Revere et al. 2010; Sun 1980; Youngner et al. 1999). USING (AND DISPOSING OF) THE DEAD Leaving the realm of the ambiguously dead body does not bring us to any surer footing. At some point, however difﬁcult it may be to identify that point, a body is no longer a living person but a corpse. But what kind of thing is that? What can be done with it, by whom, and to what ends? What must be done with it, and why? The right to donate one’s organs after death established by the Uniform Anatomical Gift Act is sometimes referred to as “posthumous bodily self-determination,” a right that some have argued ought to be extended to other realms, such as choosing where to be buried (Muinzer 2014, Nelkin & Andrews 1998). And yet the fact that a human corpse is not considered property in the United States complicates things: My will does not govern the disposition of my dead body in the same way that it governs the disposition of my other things. Instead, a corpse is only quasi-property, meaning that there are times when some individuals— relatives, for example—can exercise a limited amount of control over what happens to a corpse, but courts and scholars continue to sort out what that quasi-property right entails (Balganesh 2012, Mulqueen 2012, Render 2012, Wilding Knope 2009). Those questions were central to the case of Maggie Guthrie, who died on January 25, 1873, at her father’s house in St. Louis, with her husband Charles by her side. Charles bought her a casket, which Maggie’s father Christopher Weaver used to bury her in the Weaver family plot at the Bellefontaine cemetery, next to her mother and sister, who had died before her. Some ﬁve months later, Charles Guthrie got into a business dispute with his father-in-law and responded by suing to get his casket back. Before the case made it to court, he dug up his wife, and her casket, and had both reburied on his own family’s land [Guthrie v. Weaver (1876)]. Charles Guthrie initially won his case, but his father-in-law appealed. Three years later, when the case made it to the Missouri Court of Appeals, the judge in the matter was aghast. “It is 118 Stroud shocking to humanity that such a contest should have been carried on,” the ofﬁcial decision reads. The judge continues, When a human body has been interred with the knowledge and consent of those who, up to that moment, may have owned the cofﬁn and shroud, these articles are irrevocably consigned to earth, and all property in the purchasers of them is at an end. They become mere adjuncts to the more worthy object, the human body which they serve to enclose while it is resolved into the dust from whence it springs; with the cofﬁned clay that they surround [and here the judge turns to the Book of Job for authority], “they have said to corruption, though art my father, and to the worm, thou art my sister and my mother.” They are no longer property, and their relations with the living are at an end. There can be no property in a corpse, and there is none in the shroud which surrounds it. But what to do now that Maggie, if unlawfully, had been reburied in her new grave spot for three years? Although they have no right to property in a corpse, relatives do have a right “to protect it from insult,” and to once again disinter the body would be to once again treat Maggie’s corpse, and her casket, as property. And so the court decided for the father, but his only compensation was one penny, to pay him back for that which was wrongly taken but could not rightly be returned. Maggie was in essence a part of the dust and dirt wherever she was ensconced in it right then. Maggie was not property, and the things she was buried with were not property either. They had become, the court ruled
, a part of the earth. This seemingly magical aspect of the corpse—its transformation from a person to a thing to earth even as it retains much of its physical form—makes regulation of businesses that work with the dead particularly complex. Is a mortician like a doctor, tending to the bodies of a community? Or more like a minister, offering pastoral care? Or is a mortician a tradesman, working with possibly dangerous wares? With the rise of professional funeral directing after the end of the Civil War, and the establishment of modern funeral homes offering new embalming techniques developed during the war, lawsuits over where those businesses should be established revealed what have proved to be persistent disagreements about the nature of a human corpse. Before the late-nineteenth-century modernization of the profession, many people had prepared their loved ones for burial at home before calling for the help of an undertaker, and so it seemed to some that a funeral home logically belonged in residential districts. Other people, though, began to ﬁnd the business of working with dead bodies to be distasteful, or frightening, or both, and wanted the establishments farther away (Faust 2008; Laderman 1996, 2003; Stroud 2006). An early decision seems modern and rational on its face, and well in line with the project of the Anatomical Board: In 1877, the New Jersey Court of Chancery ruled that a funeral home was not a nuisance per se, though if managed poorly it could become one. In an 1877 decision that was frequently cited throughout the country in later years, the court ruled against Ebenezer Westcott, a 72-year-old man trying to stop his undertaker neighbor, Frank Middleton, from plying his trade. Westcott was simply too sensitive, not to noxious fumes or to dangerous chemicals or to disease, but to the mere idea of death. What bothered Westcott was not the way that Middleton conducted his business but rather the constant reminder of death that the business presented. “Physical discomfort arising from a morbid taste or excited imagination,” reasoned the court, “as distinguished from such discomfort arising through the organs of sense common to all, is not sufﬁcient to warrant public or private interference in the conduct of such a lawful business as is the funeral director’s profession.” Westcott was troubled by the thought of death, and the legal system offered no remedy for troubled thoughts [Westcott v. Middleton (1887)]. The court insisted that there was nothing inherent in the business of running a funeral home that should require its location away from residential areas, drawing a parallel between the work of www.annualreviews.org • Law and the Dead Body 119 undertakers and that of others in the city who dealt in perishable wares: Just as a grocer might let his vegetables rot out back, or a butcher might let meat grow rancid on the street, an undertaker might conduct his business in such a way as to become a nuisance. “But,” the court concluded, because these things are possible, or may occasionally happen, it is not pretended for a moment that it is unlawful to carry on the grocery business, or to vend meats in the populous parts of our cities. It seems to me that the same reasoning may be applied, with great certainty, to the business of undertaking. The court ruled that a funeral home was less like a tannery, which was a nuisance per se, and more like a butcher shop, which was a nuisance only if conducted badly. The analogy seems both gruesome and apt: The court, like the Anatomical Review Board, was striving to regulate the corpse as a thing, and the funeral business as a business like others, working with materials that could be messy but could also be handled in a sanitary way. Three decades later, the Washington State Supreme Court argued that urban growth had undercut the reasoning in Westcott v. Middleton. As cities were getting larger and more dense, the justices maintained, it was becoming less appropriate for funeral homes to be located in residential areas. The court argued, In this age, when population is becoming more and more congested in the cities, it would be manifestly unfair to grant injunctive relief only in those cases where the object attacked was a nuisance per se, when other circumstances or conditions intervene which might tend to destroy the repose and comfort of a part of a city or town given over to homes. [Densmore v. Evergreen Camp, Woodmen of the World (1910)] The problem, the court explained, was not so much that a funeral home was dangerous in and of itself but that morbid thoughts really could be, and that the constant coming and going of dead bodies and funeral processions at a business next door were more than a person should have to bear. It was common knowledge, the decision stated, that the immediate presence of those mute reminders of mortality, the hearse, the chapel, the taking in and carrying out of bodies,
the knowledge that within a few feet of the windows of one’s dwelling-house, where the family sleep and eat and spend their leisure time, autopsies are going on, that the dead are there, cannot help but have a depressing effect upon the mind of the average person, weakening, as the testimony shows, his physical resistance, and rendering him more susceptible to contagion and disease. The mere thought of the relentlessly unending parade of dead bodies through a busy urban funeral home was enough to make a person sick. No longer did the butcher shop analogy seem appropriate, or even in good taste. During the same years that the Anatomical Board corpses were losing their vibrancy, funeral home corpses were gaining theirs. It takes hard work to turn a corpse into simply meat and bones. Was the increasing cultural distance from the corpse engendered by the post–Civil War funeral business encouraging this fear of proximity to dead bodies? Or was this new ruling simply another illustration of the challenge of codifying rational relations with the dead? Although the former interpretation is analytically tempting, the latter seems to be the case. Both Westcott v. Middleton and Densmore v. Evergreen Camp, Woodmen of the World continue to be cited by scholars and courts, depending on interested parties’ goals. The question of where dead bodies belong, and what hazards they present, is far from settled and is relevant not only to the siting of funeral homes but also to that of cemeteries and crematoria, as well as to how such establishments should 120 Stroud properly be regulated and managed (Bennett 2010; Hughes Wright & Hughes 2007; Laderman 1996, 2003; Prothero 2001). SEARCHING FOR THE LAW OF THE DEAD Part of the problem that the Anatomical Board was trying to solve, and the challenge facing those worried about where businesses handling dead bodies would operate, is the curious fact that until the 1960s, very few laws on the books directly addressed what could and could not be done with an American corpse. The 1912 case of Dolph Seaton illustrates how surprising even the courts found that fact. Seaton was convicted in McCracken County, Kentucky, for not giving his two-week-old infant a proper burial. His neighbor, John Bobo, had reported Seaton to the police after helping him bury the baby in a crude wooden box in a shallow grave in a woodlot, which was left unmarked and covered up with leaves. Bobo told the court that all Seaton had done to help bury his child was “tramping the dirt as it was being put back into the grave.” The grand jury had been offended that the child had been “buried in a woods lot rather than a cemetery” and without “any ceremonies whatever.” Court records state that though Seaton was a poor man, he was ﬁnancially able to have bought a cofﬁn for the child, had he desired to do so; it is also shown that he had lumber at and around his home, out of which he could have made a better and more presentable box than that in which he buried the child, but said that he did not propose using his good lumber for this purpose. [Seaton v. Commonwealth (1912)] The appeals court was somewhat ﬂummoxed. “There is no statute on the subject,” the court reported. “We must look to the common law to determine whether the acts of the appellant are such as may be punished.” As continues to be true throughout most of the country, there was no law on the books in Kentucky requiring burial to take place in cemeteries. Likewise, no laws dictated the character of—or even the need for—a cofﬁn or a casket, or what sort of ceremony, if any, was required. The court reported that The custom of the country imposed upon [the] appellant only the duty of decently burying his child. That is, it must be properly clothed when being taken to the place of burial, and then placed in the ground or tomb so that it will not become offensive or injurious to the lives of others. He may not cast it into the street, or into a running stream, or into a hole in the ground, or make any disposition of it that might be regarded as a nuisance, be offensive to the sense of decency, or be injurious to the health of the community. The appeals court overturned Seaton’s conviction, writing that although the “appellant is shown to be a man utterly lacking in parental instincts, he has kept himself within the pale of the law.” Seaton’s actions had not been “suitable, decent, proper or appropriate,” but they had been legal, which seemed to surprise even the court. Marsh (2016) cites Seaton’s case to demonstrate how much of dead body law in the United States rests on custom, not legislation. As she and others explain, the law of the dead
is as messy and as ambiguous as the corpse itself. There is not a category of American law that does not plausibly affect the dead, and yet very few federal regulations explicitly address dead bodies in the United States. Some do: Federal legislation touches on the care due bodies of veterans, the maintenance of federally owned cemeteries and burial grounds, and pricing practices in the funeral industry. The Antiquities Act (1906, Pub. L. No. 59–209, 34 Stat. 225, 54 U.S.C. §§ 320301–320303) and, more www.annualreviews.org • Law and the Dead Body 121 recently, NAGPRA [the Native American Graves Protection and Repatriation Act of 1990 (Pub. L. No. 101–601, 25 U.S.C. 3001 et seq., 104 Stat. 3048)] govern what must and must not be done with dead Native American bodies, whether in the ground or long-since stolen, made into study objects or museum displays, or otherwise appropriated. Outside of these prescribed realms, however, the law of dead people, such as there is, is local. Regulating the dead, as a power not speciﬁcally granted to the federal government by the US Constitution, has been left to the states, and many of them have done far less—and done even that far less systematically—than one might imagine. Because the law of the dead is so scattered, a recurring project has been attempts to collect the relevant laws in one place. Legal compilations for the death professions are a genre of their own, from guides for cemetery owners to manuals for medical examiners to handbooks for morticians, and scholars have repeatedly attempted to catalog the scattered statutes (Brennan 1935, 1951; Jackson 1950; Natl. Cent. Health Stat. 2003; Street 1924; Weinmann 1929). The most recent and exhaustive of such projects have been those of Marsh. Both her impressive reference work, The Law of Human Remains (Marsh 2016), and her briefer, more targeted Disposition of Human Remains: A Legal Research Guide (Marsh 2015) guide the researcher through the thicket of US laws, at the federal level and also state by state. The volumes are indispensable especially for their comparative state work. Marsh is the author to turn to, for example, to learn that the section of the Delaware code relating to riots addresses the corpse; in Michigan, both the penal code and the public health code are key; and Indiana is unusual in having dead body regulations within its historic preservation and archaeology code. The need for such works highlights the messiness and lack of coherence of the law of the dead as either a body of statutes or a ﬁeld of inquiry. And that diffuseness—the ambiguity about what laws are relevant, what jurisdictions apply, and what principles are at play—ﬂows directly from the ambiguity of the subject itself. This brings us back to the strange kind of subject and object that a dead body is: The impulse to think of the dead body as still a person is strong, and yet so is the draw of treating a corpse as a thing. Neither courts nor laws can make that distinction entirely clear. It will always be, for most people, an amorphous and changeable distinction grounded in individual emotion and belief. Nevertheless, both practical and emotional considerations bring the ﬁctions repeatedly to the fore (Conway 2016, Jones 1926, Kelly 2015, Laqueur 2015, Manderson 1999). INEQUITY AND THE DEAD Pennsylvania’s Anatomical Board bodies from a century ago remind us that often, the dead bodies of the poor or disempowered are the easiest to treat as things. Long-dead bodies and the corpses of foreigners, prisoners, and the poor have consistently been treated as the least animated of corpses in the United States: useful or interesting, but not frightening and certainly not sacred (Richardson 2000, Sappol 2002). Bones in museums and archaeology labs become scientiﬁc specimens (Fabian 2010, Redman 2016); cemeteries of the poor and disenfranchised are poorly preserved (Clark 2005, Hochberg 2011, Shaffer 2003); some even argue for harvesting organs from people on death row as a strategy for increasing transplant supplies (Palmer 2014). With no coherent corpus of dead body law to critique, much less reform, the corpses of the most vulnerable will always be the ones treated most like things. The treatment of dead bodies in the United States reﬂects the treatment of the living. Today, it is far easier than in the past to avoid contact with the dead; fewer people die at home, and fewer still are prepared at home for burial or interred on private land. Yet if
one is curious about the corpse, ﬁnding one to gawk at is not hard. The Body Worlds (or K¨orperwelten) exhibit has been so popular since its creation in 1995 that it has inspired competing projects, including Bodies: The Exhibition, which has itself been touring since 2005. Both shows feature corpses preserved with 122 Stroud resin (a processed referred to as plastination), which are posed with their inner workings exposed. Patrons can see the muscles of a basketball player dribbling a ball, veins of a runner mid-stride, and the fetus of a pregnant woman in repose, all preserved as if frozen in time (Connor 2007). They are sculpture, and specimens, and spectacle, presented as both entertainment and education. And they are also the corpses of real people. Whose bodies are these, and what law of the dead, if any, governs their display in the United States? The sourcing of the bodies for the shows is unclear. The creator of Body Worlds insists that all of the corpses that are part of its shows are those of donors who explicitly gave permission for their use, but record-keeping practices designed to ensure anonymity of the bodies make that an untestable claim. Bodies: The Exhibition has used unclaimed bodies from China to create its displays, making it possible, according to critics, that the posed bodies are those of executed prisoners who were victims of human rights abuses. Distasteful as that might be, it is not illegal in the United States to import the preserved bodies of executed victims of atrocities and display them for the ticket-purchasing public, and the popularity of the shows would suggest that many people are not too concerned about that fact. Several states and municipalities have attempted to ﬁnd ways to regulate the shows more closely, but most have not (Giunta 2010, Young 2012). As with the Anatomical Board bodies a century ago, these anonymous bodies are handled and used as material objects, not human beings. Their posed forms are evidence from our own day that laws in the United States have many blind spots when it comes to the corpse. Just as surgery created a market for cadavers, and organ transplant procedures gave new value to the newly dead, plastination has created a previously unimagined use for the human corpse. New technologies will continue to expose new lacunae in the law, and it will be in those unmonitored spaces that the bodies of the least powerful will be treated not as people but as things. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS The author thanks Kim Lane Scheppele and the Institute for Advanced Study’s School of Social Science for supporting and encouraging this work. LITERATURE CITED Anat. Board State Pa. 1902. Cadaver Receiving Books, Vol. 1. Record Group 11, Series 45, Microﬁlm Roll 6954, Pa. State Arch. Harrisburg, PA Balganesh S. 2012. Quasi-property: like, but not quite property. Univ. Pa. Law Rev. 160:1889–925 Bennett J. 2010. Vibrant Matter: A Political Ecology of Things. Durham, NC: Duke Univ. Press Brennan RL. 1935. The Law Governing Cemetery Rules and Regulations National in Scope: An Analysis of the Power of Interment Organizations to Enact Rules and Regulations, Containing Model Rules and Regulations, Case Annotations, Practical Comments, Model Forms. Los Angeles: Interment Assoc. Calif. Brennan RL. 1951. The Law Governing Cemetery Rules and Regulations, National in Scope: A Complete Study of the Subject of Cemetery Rules and Regulations, Containing an Annotated Set of Recommended Rules and Regulations, Court Decisions in All the States, Practical Comments, also Suggested Forms. Los Angeles: Interment Assoc. Calif. Complet. Rev. ed. Cantor NL. 1987. Legal Frontiers of Death and Dying. Med. Ethics Ser. Bloomington: Indiana Univ. Press www.annualreviews.org • Law and the Dead Body 123 Cantor NL. 2010. After We Die: The Life and Times of the Human Cadaver. Washington, DC: Georgetown Univ. Press Capron AM. 1980. Death and the law: a decade of change. Sound. Interdiscip. J. 63:290–320 Clark ML. 2005. Treading on hallowed ground: implications for property law and critical theory of land associated with human death and burial. Ky. Law J. 94:487–534 Connor JTH. 2007. Exhibit essay review: “Faux reality” show? the “Body Worlds” phenomenon and its reinvention of anatomical spectacle. Bull. Hist. Med.
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Krislov 1963; cf. Covey 1959). This practice of having nonparties to a case provide the court with information was later adopted in English courts and eventually spread to both civil and common law systems (Kochevar 2013, Krislov 1963), as well as international judiciaries (Bartholomeusz 2005, Shelton 1994). I provide a thorough and critical review of scholarship on amicus curiae briefs. To do this, I have identiﬁed what I believe to be the ﬁve core areas of research on amicus briefs: (a) why amicus briefs are ﬁled, (b) who ﬁles amicus briefs and in what venues, (c) the content of amicus briefs, (d ) the inﬂuence of amicus briefs, and (e) normative issues surrounding the amicus practice. Though some of these literatures are more well developed than others, I am conﬁdent that organizing scholarship in this manner provides rich insight into what we know and do not know about how amicus briefs are used by the entities that ﬁle them and the courts that receive them. I also hope that this review provides useful suggestions for future research in this important area. WHY FILE AMICUS BRIEFS? Given that there is a wide array of tactics to inﬂuence public policy, why would entities choose to devote their ﬁnite resources to the ﬁling of amicus briefs? Scholars have reached a general consensus that amici are motivated by two primary factors in choosing to ﬁle amicus briefs: to inﬂuence judicial outcomes and to attend to organizational maintenance concerns (Collins & McCarthy 2017; Hansford 2004a,b; Martinek 2006; Perkins 2016; Salzman et al. 2011; Scheppele & Walker 1991; Solberg & Waltenburg 2006; Solowiej & Collins 2009). Research in this area has overwhelmingly taken an observational approach by examining the factors that correlate with the presence, or amount, of amicus briefs ﬁled in a case (Collins & McCarthy 2017; Gleason & Provost 2016; Hansford 2004a,b; Martinek 2006; Salzman et al. 2011; Solowiej & Collins 2009). Moreover, this work focuses primarily on American courts and especially the US Supreme Court (Hansford 2004a,b; Salzman et al. 2011; Solowiej & Collins 2009). However, a small body of research uses interviews or surveys to examine this question (Larsen & Devins 2016, Perkins 2016, Scheppele & Walker 1991, Solberg & Waltenburg 2006, Wasby 1995), and more recent work has expanded this analysis to incorporate a cross-national perspective (Collins & McCarthy 2017). In terms of inﬂuencing judicial outcomes, research reveals that amici are attracted to cases that have the potential for signiﬁcant policy impact. Among other attributes, cases with larger numbers of amicus briefs tend to involve the exercise of judicial review; implicate important civil rights and liberties questions; and involve constitutional, as opposed to statutory, litigation (Collins & McCarthy 2017, Martinek 2006, Perkins 2018, Salzman et al. 2011, Solowiej & Collins 2009). In addition, in seeking to identify cases that have the potential for maximum policy inﬂuence, amici target cases involving disputes in which they believe the courts could use additional information, such as those featuring relatively inexperienced attorneys, low-resource litigants, and complicated 220 Collins legal questions (Collins 2007, Hansford 2004a, Martinek 2006, Solowiej & Collins 2009). Amici are also sensitive to their opponents’ desires to inﬂuence judicial policy outcomes and therefore engage in counteractive lobbying by ﬁling amicus briefs to neutralize the advocacy efforts of their opponents (Epstein 1985, Hansford 2011, Solowiej & Collins 2009, Teles 2008). A second driving motivation for ﬁling amicus curiae briefs involves addressing organizational maintenance concerns (Hansford 2004a,b; Koshner 1998; Solberg & Waltenburg 2006). By ﬁling amicus briefs, membership organizations can highlight to their members and patrons that they are active on signiﬁcant matters of public policy. Moreover, should their position prevail in the case or should their amicus brief prove inﬂuential in some other way, those groups can claim credit for
their contributions. For example, Hansford (2004a) demonstrates that membership groups are more likely to ﬁle amicus briefs in US Supreme Court cases that attract media attention and those in which the position they support is likely to emerge victorious. This strategy allows membership groups to highlight to their members and patrons that they are actively involved in important cases and to claim credit for the cases’ outcomes. The question of why entities ﬁle amicus briefs is a signiﬁcant one in its own right and also because it often motivates the research techniques used to study the inﬂuence of amicus briefs (Collins 2008a). Though scholars have made substantial inroads into understanding this question, there are ample directions for future research. First, it is important to compare why groups ﬁle amicus briefs to other strategies, both within and outside of the legal system (Holyoke 2003, Spill 2001). There is a tendency in the current research to explore attributes of cases and amici to decipher why amicus briefs are ﬁled, but this largely misses the reality that the amicus strategy is one of many options available to try to inﬂuence public policy. Incorporating that fact into studies of why amicus briefs are ﬁled will bring us closer to a more complete understanding of this lobbying strategy and how groups view it in comparison to other strategies. Second, researchers should move beyond observational studies of the decision to ﬁle amicus briefs and focus more on surveys and interview techniques. To be sure, we have gained a substantial amount of knowledge from these observational studies. However, they have also limited our ability to probe questions that are not as amenable to observational research. For example, scholars have convincingly established that amici seek to inﬂuence court outputs. But it is not entirely clear what that means. Nor is it evident whether amici view inﬂuencing court outputs in the same way. Some amici may view inﬂuence in terms of shaping the ideological direction of the court’s decision. Others may view inﬂuence in terms of being cited in a court opinion or having their arguments adopted in those opinions. Still other amici may care about generating favorable precedents or media coverage of their cause. Though observational research designs can certainly contribute to this conversation, these types of questions may be better answered through surveys and interviews with the ﬁlers of amicus briefs. Third, scholars should more thoroughly investigate the extent to which the ﬁling of amicus curiae briefs actually attends to organizational maintenance concerns. Although amicus curiae briefs are certainly something that scholars, interest groups, lawyers, and judges think about, I am less sure that amicus briefs are on the radar of the average member of an interest group. Clearly, groups can and do publicize their amicus briefs, but it is less clear whether the amicus strategy is an effective way to show members that a group is active or inﬂuential on signiﬁcant matters of public concern. One way to pursue such research would be to survey members of various organizations, in addition to soliciting the views of group leaders via interviews. Finally, it will be useful to devote more research to the relative importance of inﬂuencing judicial outcomes versus attending to organizational maintenance concerns. At the most basic level is the question of whether nonmembership groups are motivated to ﬁle amicus briefs for reasons relating to organizational maintenance. At ﬁrst blush, one might think they would not www.annualreviews.org • Use of Amicus Briefs 221 be so motivated, but it is plausible that amici without members in the ordinary sense still care about publicity because it might help them attract patrons and grants. Moreover, corporations who ﬁle amicus briefs might be attentive to how the positions they take can affect their consumer base. Beyond this, scholars debate whether organizational maintenance is a goal (Koshner 1998, Solberg & Waltenburg 2006) or a constraint (Collins 2008a; Hansford 2004a,b) that only some groups face. The answer to this question has signiﬁcant implications for how we design studies of amicus inﬂuence because they may encourage researchers to focus more on inﬂuence in terms of policy outputs versus media coverage. Moreover, it is entirely plausible that these two motivations, which developed out of the American literature, may not be as applicable outside of the US case. My sense is that these questions will be best approached through survey research and interviews. WHO FILES AMICUS BRIEFS AND IN WHAT VENUES? Understanding who ﬁles amicus briefs is signiﬁcant because it speaks directly to bias in the interest group system (Schattschneider 1960). This has potentially profound normative implications because the arguments in amicus briefs re
ﬂect the types of entities that ﬁle the briefs (Collins & Solowiej 2007). For example, if business interests dominate amicus activity, this suggests that courts rarely hear from the labor side of the debate, which can bias judges’ decisions in light of evidence that amicus briefs can be inﬂuential. Given this, it should not be surprising that there has been a fair amount of attention to this question. Most of the research on the types of entities that ﬁle amicus briefs focuses on American courts. In the US Supreme Court, studies show that a diverse assortment of entities participate as amici (Caldeira & Wright 1990, Collins 2008a, Collins & Solowiej 2007, Epstein 1993). Amici include individuals, corporations, governments, public advocacy organizations, public interest law ﬁrms, trade associations, unions, and peak associations. Though these entities participate at different rates—with trade associations, public advocacy groups, and governmental amici ﬁling the largest number of amicus briefs—the evidence is clear that no single organizational type dominates amicus activity (Collins 2008a, Collins & Solowiej 2007). This differs quite substantially from other forms of lobbying in Washington, DC, which are dominated by institutional groups, including corporations (Hojnacki et al. 2015, Salisbury 1984). Moreover, the ideological positions advocated by amici show a great deal of parity in the US Supreme Court, particularly after the 1960s (Collins 2008a, p. 55; O’Connor & Epstein 1983a). That is, there are roughly an equal number of conservative and liberal amicus briefs ﬁled in the Supreme Court. In addition, amici frequently participate in coalitions by cosigning amicus briefs, thus expanding the diversity of amici (BoxSteffensmeier & Christenson 2014; Caldeira & Wright 1990; Collins 2004; Collins & Solowiej 2007; Gleason 2018; Goelzhauser & Vouvalis 2013, 2015; Hansford 2010; Provost 2011; Solimine 2012; Swenson 2016). Research on who ﬁles amicus briefs in other American courts is sparser. Collins & Martinek (2010a) investigated amicus participation in the US courts of appeals and found that, like the Supreme Court, a diverse assortment of groups participates. Epstein (1994) explored the ﬁling of amicus briefs in 16 state courts of last resort and observed an increase in the diversity of amicus ﬁlers over time. For example, in 1965, businesses, governments, religious groups, and civil liberties organizations dominated amicus activity, but in 1990 there was much less business dominance and a wider range of participants. Outside of the United States, there is more limited research on who participates as amici curiae. Alarie & Green (2010) and Brodie (2002) found that, in the Supreme Court of Canada, a fairly diverse range of entities participated as interveners, the Canadian form of the American amici curiae. One notable difference relative to the US Supreme Court, however, is the very high 222 Collins participation rates of governmental units (Radmilovic 2013). Van Den Eynde (2013) explored the amicus participation of human rights groups before the European Court of Human Rights and uncovered an increase in amicus briefs over time and a reasonably diverse range of amici in terms of the country of national origin, although most nongovernmental organizations came from the United Kingdom. She also revealed that many human rights interests are represented among the amici, although certain repeat players appear to participate with a great deal of frequency. Much of the research on the venues in which amicus briefs are ﬁled tracks the volume of amicus briefs ﬁled in particular courts. For example, it is evident that amicus participation in the US Supreme Court has risen quite substantially over time, in terms of both the percentage of cases with amicus briefs and the average number of amicus briefs ﬁled in each case (Bradley & Gardner 1985; Caldeira & Wright 1990; Collins 2004, 2008a; Epstein 1993; Hansford & Johnson 2014; Kearney & Merrill 2000; Puro 1971; O’Connor & Epstein 1981; Owens & Epstein 2005; cf. Hakman 1966). Indeed, today it is the rare case in the Supreme Court that does not have amicus participation. Although they are not as common in the US courts of appeals as compared with the US Supreme Court, Martinek (2006) demonstrated a fairly steady increase in
amicus participation over time in those courts. Similar increases have been documented in state courts of last resort (Corbally et al. 2004, Epstein 1994). Outside of the United States, there is evidence that not all courts have been witnessing the proliferation of amicus activity over time. For example, though there has been a growth in amicus (or intervener) participation in the European Court of Human Rights (Cichowski 2016) and the high courts of Canada (Alarie & Green 2010) and South Africa ( Jonas 2015), no similar increases have occurred in other high courts, such as those in Botswana ( Jonas 2015), India, and the Philippines (Collins & McCarthy 2017). Explanations for why some courts see more amicus participation than others are varied. There is fairly compelling evidence that the rules governing amicus activity matter (Cichowski 2016, Collins & McCarthy 2017, Immel 2011, Jonas 2015, O’Connor & Epstein 1983b, Viljoen & Abebe 2014; cf. Corbally et al. 2004). For example, courts that have fewer procedural barriers to amicus participation seem to have higher levels of amicus briefs. In addition, courts with relatively large civil rights and liberties dockets tend to attract more amicus briefs because these cases tend to have broad policy implications (Collins & McCarthy 2017, Perkins 2018). Further, courts that have relatively large jurisdictions tend to be particularly attractive because their precedents have large radiating effects (Collins 2013). Collins & McCarthy (2017) also show that high courts operating in common law countries with a bill of rights and the power of judicial review tend to be more attractive venues than common law courts without these features. Understanding who ﬁles amicus briefs and in what venues is important because it speaks to both the types and the volume of information that judges receive from nonparties to a case. Though there have been signiﬁcant inroads into understanding this question, at least three areas will beneﬁt from additional research. First, this literature focuses overwhelmingly on American courts. This is likely at least in part due to the reality that many amicus brief scholars are located in the United States and study the domestic jurisdictions with which they are most familiar. But, because amicus briefs have been proliferating across the globe (Collins & McCarthy 2017), it will be important to address these questions outside of the American context. In particular, research on who ﬁles amicus briefs, the ideological positions taken in those briefs, and the volume of amicus briefs will provide rich insights into amicus activity. Second, we have only a very basic understanding of how potential amici choose among courts. That is, there is some evidence that groups ﬁle amicus briefs in venues that will best allow them to establish favorable precedents (Hansford 2004a), but it is not clear why potential amici choose to ﬁle amicus briefs in one court instead of another. For example, a potential amicus in the United States might have the ability to choose between ﬁling an amicus brief in one state relative to www.annualreviews.org • Use of Amicus Briefs 223 another state, in a state versus federal court, in an intermediate appellate court versus a court of last resort, or in all of the courts mentioned above. Because potential amici face resource constraints, I believe that most amici make such decisions strategically and with an eye toward maximizing their inﬂuence in terms of judicial outcomes. Yet, I have little systematic evidence that this is the case. Finally, it will be important to investigate the timing of amicus participation within a jurisdiction. For example, in a case that reaches the US Supreme Court through the federal court system, amici might participate at the district court level (although that is very rare), the court of appeals level (including in en banc hearings), and/or the Supreme Court level at the certiorari and/or merits stage. Thus, there are at least ﬁve points at which an amicus briefs can be ﬁled. There are costs and beneﬁts of engaging in litigation at each of these stages. For instance, there is evidence that ﬁling amicus briefs at the court of appeals level can signal the broad salience of a case and make Supreme Court review more likely (Hagle & Spaeth 2009). Thus, if a potential amicus were interested in getting a case on the Supreme Court’s docket, it would make sense to ﬁle an amicus brief at the court of appeals level and perhaps also at the certiorari stage at the Supreme Court (Caldeira & Wright 1988, Zuber et al. 2015). One can imagine that the amicus briefs would involve similar
arguments, thus reducing the costs of additional legal research. If, however, the potential amicus was primarily interested in attending to organizational maintenance concerns, it might make sense to ﬁle only at the Supreme Court merits level because that is such a high-proﬁle institution, and the merits level is covered by the media much more so than the agenda-setting stage. Further, it will be important to understand how amici do or do not coordinate with the party they support in making these decisions (Larsen & Devins 2016). Pairing the goals of potential amici with the ability to achieve those goals at varying levels of a single legal system can go a long way toward informing our understanding of the motivations of amici curiae both in selecting venues and in terms of their potential inﬂuence. THE CONTENT OF AMICUS BRIEFS Understanding the content of amicus briefs is important because that content is the primary mechanism by which amici attempt to persuade judges (Collins 2004, 2008a). Further, the content of the briefs is one of the means by which groups attend to organizational maintenance concerns, including educating their members and allies (Chang & Wang 2009). Despite this topic’s signiﬁcance, systematic studies of the content of amicus briefs are limited primarily to amicus briefs ﬁled at the US Supreme Court. I believe this is the case owing to access issues. Namely, to study the content of amicus briefs, one must procure the briefs oneself. However, it is often difﬁcult to access amicus briefs outside of the US Supreme Court. For example, recent US Supreme Court amicus briefs are freely accessible on websites like that of the American Bar Association. Older briefs are often available at Westlaw and LexisNexis as part of their basic subscription packages that many colleges and universities have access to. However, briefs in other courts are much harder to come by, owing to either the lack of online availability or the need to purchase expensive subscription packages to obtain the briefs. Perhaps the central question that motivates studies of the content of amicus briefs is the extent to which amicus briefs add new information or repeat information already available to the court, particularly in the form of litigant briefs (Collins 2008a; Collins et al. 2014, 2015; Comparato 2003; Feldman 2017; Fletcher 2013; Hazelton et al. 2017; Spriggs & Wahlbeck 1997; Wofford 2015). In large part, this research is driven by Supreme Court Rule 37, which urges amici to provide the Court with new information, as well as by the advice of practitioners, judges, and law clerks who stress the need for amicus briefs to avoid repeating the arguments of the party they support 224 Collins (Ennis 1984, Lynch 2004, O’Connor 1996, Scalia & Garner 2008, Sungaila 1999, Vose 1955). In general, the evidence reveals that amicus briefs do tend to provide courts with unique information, rather than overwhelmingly repeating the arguments advanced by the parties to litigation. For example, Spriggs & Wahlbeck (1997) compared the “Argument” section of amicus briefs ﬁled in the 1992 term with those of litigant briefs and found that approximately 33% of amicus briefs exclusively reiterated arguments made by the litigants, with the remaining exclusively providing new information (25%) or both adding and reiterating information (42%). Collins et al. (2014) used plagiarism detection software to compare the language used in amicus briefs with litigant briefs, lower court opinions, and other amicus briefs. They discovered that amicus briefs rarely directly repeat the language used in these other sources of information and that the amount of repetitive text found in amicus briefs is similar to that found in party briefs, indicating there are “few differences between amicus briefs and party briefs regarding the amount of language they incorporate from other information sources” (Collins et al. 2014, p. 234). In addition to examining the extent to which amicus briefs provide courts with novel information, scholars have examined other aspects of amicus briefs. For example, there is a small literature focused on the presentation of facts, including social scientiﬁc information, in amicus briefs (Hull 2017, Katt 2009, Larsen 2014, Roesch et al. 1991, Rustad & Koenig 1993, Scott 2016). This research tends to take a critical look at the information provided in amicus briefs, including how that information can be misused by both amici and judges, and often offers suggestions
for limiting the misuse of information in amicus briefs. Another line of inquiry examines the types of citations found in amicus briefs, such as references to various courts’ decisions and secondary legal authorities, thus providing a different perspective on the information contained in amicus briefs (Manz 2002). Finally, a small body of work provides an engaging look at “voices” briefs: those amicus briefs that relay the stories of individuals who are, or have been, affected by the issues in a case (Edwards 2017, Levit 2010, Paltrow 1986). For example, in Whole Woman’s Health v. Hellerstedt (2016), more than 100 female judges, law professors, and lawyers revealed to the Supreme Court (and the world) that they had had an abortion (Edwards 2017). I ﬁnd this research particularly exciting as it both humanizes the amici curiae and provides a novel way of thinking about the role of amicus briefs by stressing their narrative functions. The study of the content of amicus briefs has developed quite substantially in the past 10 years, in part owing to the availability of computer-assisted content analysis techniques. Nonetheless, there are several avenues for future research. Perhaps most obviously, this literature remains focused on the US Supreme Court. Though the easy access to amicus briefs in this institution makes it a prime target for study, it is important to remember that studies of a single institution can get us only so far in understanding the content of amicus briefs. For example, it will be interesting to examine how the content of amicus briefs evolves as cases make their way up the hierarchy of a legal system. In addition, I would like to see more attention devoted to interviewing and/or surveying attorneys for the purpose of shedding light on how arguments in amicus briefs are developed. For example, the American Civil Liberties Union’s amicus brief in Mapp v. Ohio (1961), which is often cited as the quintessential example of an effective amicus brief (Collins 2008a, Spriggs & Wahlbeck 1997), almost did not address the exclusionary rule (Day 2001). Finally, I am conﬁdent that studies of how the content of amicus briefs does and does not change as amici form coalitions will provide signiﬁcant insights into both the development of the content of amicus briefs and how amici work together in coalitions. THE INFLUENCE OF AMICUS BRIEFS Without a doubt, the most common area of amicus scholarship involves ascertaining the inﬂuence of amicus briefs. Scholars pursuing this question have taken a variety of approaches and have www.annualreviews.org • Use of Amicus Briefs 225 studied a fairly diverse assortment of courts relative to other areas of study. Moreover, there is a general consensus that amicus briefs are inﬂuential in several regards. To understand the literature on the inﬂuence of amicus briefs, it is useful to separate it into measuring inﬂuence in terms of (a) winners and losers in litigation, (b) the ideological direction of court decisions and judges’ votes, (c) the content and presence of judicial opinions, and (d ) other means to capture inﬂuence. Examining the inﬂuence of amicus briefs in terms of litigation outcomes tends to focus on investigating whether the relative volume of amicus briefs increases one party’s chances of winning the lawsuit. For example, it is often argued that the party supported by the largest number of amicus briefs will have an enhanced probability of winning the case because that party’s position is buttressed by the amicus briefs. Through these briefs, amici can reinforce arguments made by the party they support, provide the courts with new argumentation, present social scientiﬁc evidence, discuss the policy implications of a decision, and provide information on the positions of the other branches of government (Collins 2004, Collins & Martinek 2010b, Epstein & Knight 1998, Kearney & Merrill 2000). Taken as a whole, the evidence indicates that the party supported by the largest number of amicus briefs enjoys a modest advantage in terms of litigation success in the US Supreme Court (Collins 2004, Hassler & O’Connor 1986, Kearney & Merrill 2000, Kim & Vinson 2009, McGuire 1995, Morris 1987, Nicholson-Crotty 2007, O’Connor & Epstein 1982, Puro 1971, Rushin & O’Connor 1987; cf. Songer & Sheehan 1993). Further, this advantage can be quite substantial when a litigant is supported by particular amici, such as the US Solicitor General (
Black & Owens 2012, Deen et al. 2003, Nicholson & Collins 2008, O’Connor 1983, Pacelle 2003, Salokar 1992, Segal 1988, Segal & Reedy 1988; cf. McGuire 1998) and high-proﬁle interest groups, such as the American Civil Liberties Union, the American Federation of Labor and Congress of Industrial Organizations, and the Chamber of Commerce (Buckler 2014, Epstein 1993, Ivers & O’Connor 1987, Kearney & Merrill 2000, Lynch 2004, McLauchlan 2005, O’Connor & Epstein 1983c, Puro 1971). Although the literature on other US courts is not nearly as expansive, there is similar evidence that litigants supported by amicus briefs are advantaged in state courts of last resort (e.g., Laroche 2009, Songer & Kuersten 1995, Songer et al. 2000; cf. Comparato 2003) and federal courts of appeals (e.g., Collins & Martinek 2010b). In addition, these ﬁndings appear to apply to the Supreme Court of Canada (Morton & Allen 2001, Radmilovic 2013), though the evidence with respect to international judicial bodies is mixed (Shelton 1994, Van den Eynde 2013). A related way to capture amicus inﬂuence regarding litigation success involves focusing on the agenda-setting stage in courts with control over their dockets. As with many other areas, this literature concentrates almost entirely on the US Supreme Court. This research is predicated on the idea that the presence, or amount, of amicus briefs that accompany a petition for a writ of certiorari sends a credible signal to the justices that the case has broad policy implications and is thus worthy of review. Evidence overwhelmingly supports this account, as the existence or volume of amicus briefs is one of the best predictors of granting certiorari at the US Supreme Court (Black & Boyd 2010; Caldeira & Wright 1988; Epstein 1993; Feldman & Kappner 2016; Goelzhauser & Vouvalis 2013, 2015; McGuire & Caldeira 1993; Perry 1991; Wohlfarth 2009). A second way scholars have conceptualized the inﬂuence of amicus briefs involves focusing on the ideological direction of court decisions or judges’ votes. The argument for this approach is based on the idea that amici are primarily interested in inﬂuencing the ideological direction of court decisions (e.g., their liberal or conservative nature), as opposed to being principally concerned with who wins and who loses, which is an afterthought for most amici (Collins 2007, 2008a). Thus, this dependent variable is argued to more closely reﬂect the goals of the amici that provide judges with persuasive information advocating for particular policy outcomes. Studies using this approach show that judges are more likely to render decisions in a particular ideological direction as the 226 Collins number of amicus briefs supporting that position increases in the US Supreme Court (Collins 2007, McGuire 1990) and the Supreme Court of Canada (Alarie & Green 2010). A related method of detecting amicus inﬂuence involves examining the ideological direction of individual judges’ votes (Bailey et al. 2005, Box-Steffensmeier et al. 2013, Collins 2008a, Manzi & Hall 2017, Pacelle et al. 2017, Szmer & Humphries Ginn 2014). This research strategy has the beneﬁt of closely matching the policy goals of amici, while also allowing for a consideration that amicus briefs might have differential effects on judges based on attributes like the identity of the amici and the judges’ ideologies. Thus, this research tends to take a more nuanced look at judicial outcomes as compared with other approaches. Collins (2008a) pioneered this method by examining whether the inﬂuence of amicus briefs at the US Supreme Court is mediated by the justices’ ideologies based on theories of motivated reasoning. For example, Collins posited that liberal amicus briefs would enhance the chances of observing liberal justices casting liberal votes, because liberal justices are predisposed to favor the arguments in those briefs. Conversely, conservative amicus briefs should have little or no inﬂuence on liberal justices, because liberal justices are likely to discount or ignore the information in those ideologically discrepant briefs. Interestingly, the evidence indicated that this was not generally the case. Instead, the inﬂuence of amicus briefs was, on the whole
, fairly uniform across justices with different ideological preferences. Box-Steffensmeier et al. (2013) expanded this research by investigating how Supreme Court justices respond to the relative power of interest groups ﬁling amicus curiae briefs. They ﬁnd that justices do respond to the relative power of amici and that ideology can moderate the effect of amicus power in certain circumstances. Szmer & Humphries Ginn (2014) further explored this topic, evincing that justices who have expertise in a particular area of the law are less receptive to the arguments made by amici in that area of the law. More recently, Manzi & Hall (2017) expanded a signaling approach to amicus inﬂuence originally developed by Bailey et al. (2005) with respect to the solicitor general. This theory posits that, when an interest group that is traditionally aligned with a particular ideological position ﬁles an amicus brief that runs counter to that position (e.g., a conservative group ﬁles an amicus brief advocating for a liberal outcome), the justices will be especially receptive to this brief because that unexpected signal conveys more noticeable and credible information than when an interest group ﬁles an amicus brief consistent with its general ideological orientation. They uncover evidence that these types of unexpected signals inﬂuence the ideological direction of the justices’ votes, but that expected signals do not. Moreover, they ﬁnd this effect is enhanced for justices who share the ideological preferences of the amici, suggesting that such justices view these signals as especially credible. Likely motivated, at least in part, by the nuance that examining amicus inﬂuence in terms of the ideological direction of judges’ votes provides, this approach has been expanded outside of the US Supreme Court. Collins & Martinek (2015) investigated amicus inﬂuence on US courts of appeals judges and found that ideology does mediate the inﬂuence of amicus briefs. In particular, moderate and conservative judges respond to the persuasion attempts in amicus briefs, but liberal judges do not. They attribute this ﬁnding to possible differences in the cognitive processing styles of judges with varying ideologies. For example, they suggest that conservative judges’ positive responses to amicus briefs may be evidence of a heuristic persuasion framework that liberal judges do not engage in with regard to processing the information in amicus briefs. Kane (2017) applied this approach to state courts of last resort. She found that ideology played a limited role in conditioning the effect of amicus briefs and that the method of judicial selection does mediate the inﬂuence of amicus briefs, particularly for judges concerned with reelection in product liability cases. Outside of US courts, Alarie & Green (2010) found that the justices on the Supreme Court of Canada are all susceptible to intervener inﬂuence and that ideology does not mediate the inﬂuence of intervener briefs. www.annualreviews.org • Use of Amicus Briefs 227 The third method scholars use to investigate the inﬂuence of amicus briefs involves looking for evidence of inﬂuence in judicial opinions. This literature works from the perspective that a paramount goal of amici is to convince judges to develop policies that are favorable to group interests. One of the primary ways that amici can achieve this goal is by inﬂuencing the content of judicial opinions. The main approach to examining amicus inﬂuence in judicial opinions has been to compare the language and/or arguments in amicus briefs with the language and/or arguments in judicial opinions. Scholars have approached this in several ways. One means to accomplish this involves qualitatively investigating whether judges adopt arguments found in amicus briefs (Campbell 2002, Dolidze 2012, Ehrlich 2017, Epstein & Kobylka 1992, Samuels 2004, Vose 1959). This research reveals that amicus briefs have played an important role in many highly signiﬁcant US Supreme Court cases, with the justices adopting the arguments of amici as the basis for their opinions in many of the cases under analysis. A drawback of this approach is that the focus on a single case, or set of interrelated cases, may limit the generalizability of any ﬁndings of amicus inﬂuence. To remedy this, Spriggs & Wahlbeck (1997) were the ﬁrst to systematically compare the arguments advanced in amicus briefs with those appearing in the Court’s opinions in a relatively large number of cases. They found that the Court is more likely to favorably incorporate the arguments in amicus briefs into its opinions when those arguments reiterate those of the parties to litigation and when they are advanced by the US Solicitor General. Wofford (2015) compared the legal rules adopted by the Supreme Court with those advanced
by amici and corroborated Spriggs & Walbeck’s (1997) ﬁndings regarding repetition. More recently, scholars have begun adopting computer-assisted content analysis techniques to examine amicus inﬂuence on court opinions (Collins et al. 2015, Feldman 2017, Hazelton et al. 2017, Huang & Roemheld 2016). For example, Collins et al. (2015) used plagiarism detection software to compare the language used in amicus briefs with that appearing in judicial opinions. They found that Supreme Court justices adopt more language from amicus briefs that are clearly written, repeat arguments advanced in other sources (such as litigant briefs and lower court opinions), and are ﬁled by high-status public and private amici. In addition to examining the language, arguments, and rules advanced in amicus briefs and judicial opinions, other scholars have investigated amicus inﬂuence on opinions in other ways. For example, some have examined the extent to which judges cite or quote from amicus briefs in judicial opinions (Epstein 1993, Harper & Etherington 1953, Kearney & Merrill 2000). Others have explored whether amicus briefs can increase the chances of observing a dissenting or concurring opinion (Collins 2008a,b; Rebe 2013). This research reveals that judges are more likely to author concurring and dissenting opinions in cases with a relatively large number of amicus briefs, as such briefs signal the importance of a case and provide judges with a foundation for drafting a separate opinion. In addition to examining amicus inﬂuence in terms of litigation success, the ideological direction of decisions and votes, and the content and presence of judicial opinions, a small body of work is devoted to assessing amicus inﬂuence in other ways. One such method involves interviewing judges and law clerks regarding their perspectives on the beneﬁts of amicus briefs and what makes for an effective amicus brief (Flango et al. 2006, Lynch 2004, Simard 2008). This work is particularly illuminating, as it sheds light on how amicus briefs are processed by clerks and judges and what they look for in high-quality amicus briefs. Finally, amicus briefs increase media coverage of court cases because they illustrate to the media that the case will affect a broad array of societal interests (Maltzman & Wahlbeck 2003, Sill et al. 2013, Slotnick & Segal 1998). However, there are questions of causality in this research because cases that implicate broad societal interests are likely to attract a greater number of amicus briefs than less salient cases. 228 Collins Taken as a whole, the literature on the inﬂuence of amicus briefs is quite well developed. Of course, there are still useful directions for additional research. First, future scholarship should abandon examining amicus inﬂuence in terms of litigation outcomes, unless it can demonstrate that this is a signiﬁcant goal of amici. My sense is that this approach to amicus inﬂuence was advanced because amicus briefs almost always support a given litigant and because it is relatively easy to measure winners and losers in litigation. The problem is that it is not at all evident that amici are primarily interested in a particular litigant winning or losing, independent of other aspects of the decision, like its implications for public policy. Thus, work in this vein would be better off focusing on the ideological direction of decisions and judges’ votes, as well as the content of judicial opinions, because these dependent variables more closely align with the goals of amici compared with measures of litigation success. Further, these approaches allow researchers to explore the possibility that amicus briefs do not uniformly inﬂuence judges, while more rigorously controlling for other inﬂuences on judicial decision making and opinion content. Second, it will be important to devote more attention to what types of amicus briefs are most inﬂuential. Though some inroads have been made on this front (Collins et al. 2015, Wofford 2015), I am particularly interested in work that evaluates how judges view and respond to amicus briefs that provide social scientiﬁc information, facts, perspectives of other actors in government, and voices of those who might be affected by the ruling. Third, it will be useful to compare various approaches to detecting amicus inﬂuence. For example, opinions that speciﬁcally cite and/or quote from amicus briefs probably also score high on the adoption of language from amicus briefs based on plagiarism detection techniques that pick up overlapping language even in the absence of citations to amicus briefs. By triangulating among various approaches to amicus inﬂuence
, we can gain a better comprehension of this signiﬁcant topic. Finally, it will be important to get a better understanding of the process by which amicus briefs are processed or triaged by law clerks and judges. To be sure, there is evidence that, at least on the Supreme Court, justices do not read all of the amicus briefs (Lynch 2004, Scalia & Garner 2008). Understanding why some amicus briefs are closely scrutinized and others are not will go a long way in informing our understanding of amicus inﬂuence. NORMATIVE CONCERNS ABOUT AMICUS BRIEFS In addition to addressing the issues related to the amicus practice discussed above, scholars have engaged in normative debates about the use of amicus briefs. Many scholars praise the amicus practice for its potential to improve the quality of judicial decisions (Collins 2008a, Jonas 2015, Larsen & Devins 2016), as a mechanism for democratic input into often politically insulated courts (Edwards 2017, Garcia 2008, Simmons 2009), and for its role in promoting social justice (Chang & Wang 2009). Others criticize the amicus practice for hurting the adversarial process, turning the courts into political institutions, having too much inﬂuence on judges’ decisions, and presenting courts with unreliable information (Larsen 2014, Rustad & Koenig 1993, Solimine 2016). Importantly, many of the normative concerns regarding the use of amicus briefs can be subjected to empirical scrutiny. Thus, amicus activity represents a key area at the intersection of normative theory and empirical social science. I wish to highlight a few of these normative issues to illustrate how they can be addressed through the empirical study of amicus briefs. One of the core normative concerns implicated in the study of interest groups at large is the possibility that legal and political actors might favor groups that represent the interests of the elite, such as businesses and corporations (Schattschneider 1960). In this sense, there is a fear that more well-resourced amici might have a greater ability to ﬁle amicus briefs and have a disproportionate inﬂuence on judicial decisions and opinions. The existing scholarship dispels some of these fears and conﬁrms others. Studies of the types of groups that participate in American courts tend to paint www.annualreviews.org • Use of Amicus Briefs 229 a picture of a diverse assortment of amici (Caldeira & Wright 1990; Collins & Martinek 2010a; Collins & Solowiej 2007; Epstein 1993, 1994). But we have little knowledge of the variety of groups that participate outside of US courts. Recent scholarship on amicus inﬂuence demonstrates that, at least in the US Supreme Court, high-status amici are quite powerful, exerting perhaps undue inﬂuence on case outcomes (Box-Steffensmeier et al. 2013) and the content of judicial opinions (Collins et al. 2015), in addition to receiving special attention from law clerks (Lynch 2004). These ﬁndings should cause some alarm for those concerned that the amicus practice can be manipulated by powerful interests in an effort to use the courts to create social change. Moreover, these initial ﬁndings provide evidence that future research in this area will certainly be worthwhile. A related area of concern involves the extent to which the amicus practice really does provide democratic input into the judiciary. For example, some low-resource groups that may want to ﬁle amicus briefs might be prevented from doing so because of ﬁling and printing fees, the inability to procure appropriate legal counsel, and other barriers related to the rules and procedures that govern amicus ﬁlings. Further, there is evidence in the US Supreme Court that amicus briefs are triaged by law clerks, thus indicating that not all (or even most) amicus briefs are read by judges (Lynch 2004, Scalia & Garner 2008). This indicates that, even if potential amici can overcome various barriers to ﬁling amicus briefs, there is no guarantee that their brief will be read, therefore limiting the democratic beneﬁts of the amicus practice in terms of providing a diverse array of viewpoints to judges. Questions related to this can be pursued through interviews with law clerks and judges regarding how amicus briefs are processed and whether there are biases in terms of the types of amicus briefs that make their way from law clerks to the judges deciding cases. Finally, there are concerns that litigants play too large a role in coordinating with potential amici, which can hurt the adversarial system. This can involve litigants ghostwriting amicus briefs or recruiting amici
to their causes in an effort to evade length restrictions in their own briefs. Though some courts have adopted rules that require amici to indicate whether the parties contributed to the brief (Collins 2008a), such rules do not exist in all jurisdictions. Importantly, questions regarding coordination can be addressed in empirical studies. For example, there are content analysis techniques that can detect evidence of ghostwriting (Rosenthal & Yoon 2011, Wahlbeck et al. 2002), and interviews with litigants and amici about their level of coordination, similar to those conducted by Larsen & Devins (2016), can clarify the extent to which these fears are well founded. CONCLUSIONS Amicus curiae briefs constitute one of the most common mechanisms that interest groups and other entities use in an attempt to translate their economic, political, and social preferences into law. Moreover, the use of amicus briefs gives rise to numerous normative concerns, ranging from bias in the administration of justice by judges to unethical behavior by litigants, such as ghostwriting amicus briefs. Given this, it is not surprising that scholars have devoted a great deal of attention to understanding the amicus practice. Though this literature has made substantial inroads into furthering our understanding of the use of amicus briefs, this literature is deﬁcient in several regards. In addition to those discussed above, there are other areas that present challenges to scholars studying the amicus practice. Perhaps most notably, the literature on amicus briefs is overwhelmingly focused on American courts, particularly the US Supreme Court. In some ways, this is understandable. For example, many of the scholars studying amicus briefs come from US institutions and thus examine courts with which they are familiar. In addition, access to amicus briefs in the American legal system, and especiallytheUSSupremeCourt,iseasier tocomebyascomparedwithother judiciaries.However, the relative ease with which studying amicus briefs in the American context can be accomplished 230 Collins should not outweigh the limitations of focusing primarily on a single country. In particular, the emphasis on American courts has likely limited the generalizability of our understanding of the use of amicus briefs by interest groups and judges. In addition, it may have skewed our understanding of the goals of amici and how law clerks and judges view amicus briefs. As a result, we must continue to expand the study of amicus briefs outside of the American court system. Another challenge facing scholars of amicus briefs involves more thoroughly connecting the goals of amici and judges, the content of amicus briefs, how amicus briefs are processed, and the research designs used to detect the inﬂuence of amicus briefs. As Collins (2008a) notes, many of the early studies of amicus briefs lacked a strong theoretical orientation, leading to some confusion as to whether the methods used to investigate amicus inﬂuence matched with the goals of amici and judges. Though recent efforts have more closely connected these goals to research designs, there is still much work to be done. In particular, we need to begin approaching the study of amicus briefs from a more global perspective by developing research designs capable of connecting the goals of amici with the goals of judges, while taking into account the content of amicus briefs and the realities of how amicus briefs are processed by judges and their law clerks. This will likely involve triangulating approaches, including conducting interviews and surveys with amici, law clerks, and perhaps judges, as well as designing careful qualitative and/or quantitative tests to detect amicus inﬂuence that are consistent with the results of these interviews and surveys and the content of the amicus briefs under scrutiny. Finally, much can be gained by more fully integrating the literature on amicus briefs with the broader scholarship on social movement litigation. Though there are some exceptions, it is not hard to get the impression that the literature on amicus briefs developed almost entirely independently from the vast literature on social movement litigation. This is troubling, as social movement litigation scholarship often addresses some of the missing areas in amicus scholarship, such as the goals of social movement actors (Cummings & Eagly 2001), the development and types of arguments used in litigation (Cole 1984, Sarat & Scheingold 2006), and how movements can use litigation to mobilize individuals sympathetic to their causes (McCann 1994). By more thoroughly marrying these two literatures, which have much in common, I am conﬁdent that our understanding of the use of amicus briefs will continue to ﬂourish. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS The author thanks Emilia Beuger for her outstanding
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The essay describes the role of case studies in social scientiﬁc work and their express value to legal scholars, and offers speciﬁc descriptions from classic and contemporary works. 381 INTRODUCTION Case studies have a long and rich history in law and social science. Though often equated with qualitative analysis—e.g., interview techniques, focus groups, or ethnographic work—not all qualitative analyses are case studies, nor do all case studies rely exclusively on qualitative data. In fact, the deﬁnition of what, exactly, constitutes a case study is itself contested. For some scholars, too much conﬁdence in what comprises one’s case or cases at the outset of a research project can be detrimental to the research process, because identifying the contours of the case itself is often one of the major reasons to engage in a case study in the ﬁrst place (Becker 1992). Rather than treat case studies as method, this essay treats case studies as having a distinctive set of goals (Goertz & Mahoney 2012). Whether to engage in a case study is not a methodological decision but, rather, a decision that comes directly from the type of questions the researcher has in mind (see also Gerring 2007). By this deﬁnition, case studies are forms of research whose practitioners are primarily, though not exclusively, case oriented rather than variable oriented. Puzzling outcomes, new or low information contexts, and skepticism about conventional wisdom, for example, are more likely to draw the attention of social scientists who engage in case study research than questions that seek to further elucidate the effect of a given variable on a particular outcome. In this formulation, case study research is that which engages in intensive analysis of one or several phenomena, outcomes, or processes and is aimed at gaining as full and complete an understanding as possible of the object under study. Rather than focusing narrowly on simple causation, legal scholars using the case study approach are often challenging extant theory, reﬁning concepts, or identifying causal mechanisms. Scholars engaged in case study research in the law and social sciences are also sometimes wary of the average treatment effects, correlational models that dominate much social science research today, precisely because such research designs largely take for granted theory, concepts, and forms of causality.1 We focus here on several different uses of case studies and the unique and vital insights they offer legal scholars. For all of the methodological critiques of case studies in the wider social sciences (see King et al. 1994 for such critiques), properly executed case studies can resolve as many methodological problems as they create (Goertz & Mahoney 2012, Ragin & Becker 1992). Although analysis of a large number of observations has its merits, legal scholars engaged in case study research are focused on questions that such approaches cannot resolve: What, exactly, is the phenomenon under study, and how should we conceptualize it? How should we distinguish between two or more phenomena that appear similar? How do extant theories link presumed causal factors with speciﬁc outcomes? Are the underlying assumptions upon which a theory is based observable? What do negative cases do to extant theories? What are the range of possible origins of a particular outcome? Rather than engage in a sweeping analysis of the literature, we draw on a small number of classics and a sample of more contemporary work to highlight three key contributions that case studies make to law and social science research. First, we brieﬂy summarize the primary features and beneﬁts of the case study approach as we deﬁne it here and discuss why case studies are of particular interest and value to law and society scholars. Second, we deﬁne three classic uses of case studies in law and social science: theory development (challenges to extant theories, destabilization of conventional wisdom), concepts (identiﬁcation, formation, clariﬁcation), and mechanisms (proposed linkages between purported causes and effects). Third, we offer concrete examples of these beneﬁts for legal scholars. Finally, we provide a few brief suggestions for improving the
1This essay is not a critique of such approaches. However, average treatment effect studies have become normalized in the social sciences to such an extent that the beneﬁts of such analyses are largely taken for granted. In this article, we highlight the research beneﬁts of case studies that are less likely to emerge from research focused on increasingly reﬁned quantitative measures of causal inference. 382 Miller impact of case studies on law and social science research and conclude with a summary of some of the ways in which case studies have dramatically advanced our understanding of law in society. WHAT IS A CASE STUDY IN LEGAL SCHOLARSHIP? In a typical social science research design textbook, a case study is deﬁned as “the in-depth examination of a single instance of some social phenomenon, such as a village, a family, or a juvenile gang” (Babbie 2012, p. 338). Such studies, in this view, may be primarily descriptive or may be aimed at improving existing social theories. Most scholars engaged in case study work, however, see case studies as deﬁned by the goals from which the research begins, rather than the number of units under investigation or the methodological approach taken by the researcher. The problem with textbook deﬁnitions is that they overlook one of the major values of a case study, which is to identify exactly what the phenomenon of interest is a case of (see Ragin & Becker 1992 for a more complete discussion). Case studies allow the researcher to better delineate one speciﬁc phenomenon from another, to develop conceptual clarity, to challenge extant theories and assumptions, and to tease out causal mechanisms. These analyses often result in reconsideration or even rejection of long-standing theoretical assumptions and/or the illumination of facts, processes, and relations in new contexts or new forms. For this reason, “strong preconceptions [about cases] are likely to hamper conceptual development” (Ragin & Becker 1992, p. 6). Indeed, scholars who engage in case studies will sometimes begin without deﬁnitive notions about the phenomenon under investigation. Instead, their research often starts with a more holistic query, a curiosity about what factors were present during the development of an unexpected outcome, a hunch that an overlooked or underestimated feature needs greater attention, a skepticism about extant causal theories because they lack a plausible story linking causes and effects, or, simply, an interest in elucidating what constitutes a particular phenomenon of interest (see Brady & Collier 2010, Gerring 2012, Goertz & Mahoney 2012, Ragin & Becker 1992, Tarrow 2010). The case of interest can also be deﬁned widely and include, for example, legal institutions, legal actors, and legal rules but also legal phenomena such as criminal process, deliberative decision making, constitutionalism, or social movements. Such objects of inquiry are well suited to case study research because detailed observation, analysis, and discussion about the phenomenon itself and related concepts can be vital to making credible social science claims about causality, and because they lend themselves to a focus on process, mechanisms, and theory construction. These curiosities often lead to case studies in law and social sciences that address questions such as, what is this legal phenomenon a case of? How well do extant theories about legal processes help us understand this particular case? Is it accurate to put two or more sets of legal phenomena in the same conceptual category? How do legal processes work in society? What can outliers tell us about some legal phenomenon? What explains a single legal outcome? Two classic illustrations help illuminate these speciﬁc aspects of case study work in the social sciences. Shapiro’s (1983) Courts asked what, precisely, constitutes the judicial institution we call courts. Shapiro wades into a normative debate fraught with assumptions about the nature of, and legitimacy surrounding, courts. Instead of seeking to compare courts to some normative ideal, however, Shapiro empirically examines what courts look like in the modern context and how researchers can effectively compare them to one another. By identifying the central feature of courts as tri-parte dispute resolution, Shapiro is able to then focus on how these institutions function in different contexts and, also, to identify the various ways in which political actors use and intersect with courts. The study became a foundational text that not only helped to establish a clearer concept of courts but also contributed a substantial cornerstone to theorization about courts and empirical work on comparative courts. www.annualreviews.org • The Use of Case Studies 383 Merry’s (1990) Getting Justice and Getting Even offers another classic illustration of how case study work can lead to foundational analysis in legal studies. In contrast to Shapiro, Merry is interested in law at the very microlevel of individuals and communities, and in whether and how people use the law to resolve everyday disputes that arise between neighbors, family members, and coworkers. In doing so, Merry elucidates the concept of legal consciousness and observes
the mechanisms by which ordinary people might inﬂuence and be inﬂuenced by law and legal institutions. In fact, Merry’s study helped spawn a generation of work on reﬁning legal consciousness in ways that afforded scholars greater clarity for understanding how people make sense of, use, and are subjected to legal norms, language, and institutions (e.g., Ewick & Silbey 1992, 1998; G´omez 2016; Sarat 1990, Yngvesson 1993; see Silbey 2005 for a detailed discussion of scholarship on legal consciousness). Typically, though not exclusively, scholars engaged in case study work pursue the how and why questions of social science research. As a result, they typically emphasize depth, internal validity, and exploratory objectives rather than the isolation and quantiﬁcation of discrete causal variables. The how and why questions not only elucidate the processes through which legal phenomena occur but also can yield previously overlooked important causal stories or rejection of extant theories. Case studies can identify and draw together pieces of evidence that may not seem related at the macro level but, when decomposed under intensive scrutiny, add considerably to descriptions of a given legal phenomena, understanding of causality, and/or a rejection of received wisdom. Where a researcher confronts a lack of systematic prior analyses, or believes conventional wisdom to be misleading or downright incorrect, case studies are a particularly useful approach for the kind of inductive analysis that theory building requires. Table 1 offers illustrations of the types of questions case study researchers ask and the cases they use to address them. Table 1 Sample of types of research questions and cases explored in law and social science Legal phenomenon of interest Research question and reference Cases Judicial institutions What constitutes judicial reform in an authoritarian regime? (Moustafa 2007) Egyptian Supreme Constitutional Court Litigation How is litigation used in social movements? (McCann 1994) Pay equity movement in the United States, 1970s–1980s Judicial actors Why do judges capitulate to authoritarian rule? (Hilbink 2011) Chilean judiciary, 1960s–2000s Legal mobilization Does legal mobilization occur in violent contexts? (Lemaitre & Sandvik 2015) Women victims of violence during Columbia peace negotiations with the Revolutionary Armed Forces of Columbia Rights rhetoric How is the concept of “rights” used by dominant groups? (Dudas 2008) US Indian treaty rights Constitutional courts How do constitutional courts function in transitioning democracies? (Scheppele 2003) Post-Soviet European constitutional courts Legal change How is legal change institutionalized? (Cichowski 2007) European Court of Justice Legal practices at work How do legal practices function? (Seron 1996) Solo and small-practice attorneys Law and inequality How does hate crime law work in practice? (Bell 2002) Police hate crime unit Constitutionalism and colonialism What happened to the Haitian Republic’s Constitution vis-`a-vis later constitutional developments? (Ferrer 2012) Haitian Constitution of 1816 384 Miller It is not hard to see why case studies are attractive to law and society scholars. Legal rules, forms, institutions, and norms are all likely to have important temporal and spatial dimensions, many of which remain unexplored or undertheorized, making broad comparisons and generalizations particularly challenging. In addition, law often functions through multiple causal pathways that sometimes overlap and covary, thus making questions aimed at direct and discrete cause and effect less appealing (see, for example, the debate around the impact of US Supreme Court decisions discussed below).2 Moreover, although in formal terms law purports to treat like cases alike, no two cases are ever exactly alike, and this contributes to scholarly skepticism that hundreds or even dozens of cases can be lumped together to produce meaningful conclusions (see Scheppele 2004). Indeed, a concern for the conﬂation of theoretical categories and data categories, and the necessity of teasing them apart, is sometimes an impetus for case study work in law and social science. In addition, some law and social science scholars are less interested in the effect of a speciﬁc legal form on a legal outcome than in gaining a full understanding of those forms and the modes of transmission, explaining extreme or outlier cases, or observing multiple and interactive causal pathways (e.g., work on legal consciousness discussed brieﬂy above). Though the value of case studies is vast, our space here is limited. We therefore focus on three primary aspects of case study research that provide vital and unique contributions to law and social science research: ■ Theory—construction, challenge, and revision. What aspects of the extant literature are in need of greater theorization? How accurate and consistent are extant theories? Do dominant theoretical frameworks adequately explain a given case? What extant theories are relevant to a particular phenomenon? Taking these questions seriously can lead to substantial revisions of existing theoretical
frames. ■ Concepts—formation, clariﬁcation, and reﬁnement. What concepts best express the phenomenon of interest or the dimensions associated with it? How can these phenomena be understood, articulated, and explained in a way that captures other, similar concepts but does not cast the net so wide as to result in conceptual stretching (Collier & Gerring 2008, Sartori 1970)? What new conceptual categories are necessary to help researchers elucidate speciﬁc legal norms, actions, or outcomes? Lack of clarity on legal concepts hampers descriptive and causal analysis; greater clarity can help legal scholars make more meaningful claims about law and/in society. ■ Causal mechanisms—deﬁnitions, linkages, and gaps. What are the processes by which a phenomenon of interest occurs? What are the cogs and wheels of the causal process?3 Are they observable in this particular case(s)? Is it useful to consider necessary and sufﬁcient conditions in this area of law? Addressing such questions successfully can “increase [or decrease] our conﬁdence in a given theory” (George & Bennett 2005, chapter 8). Case studies are vital to the identiﬁcation of causal mechanisms because they generally seek to take account of as much as possible about a given phenomenon and, thus, are likely to capture the processes that link various factors to one another in time. Case study researchers generally prize theoretical and conceptual clarity and are likely to see complexity and heterogeneity in places where scholars interested primarily in average treatment 2There is, of course, a wealth of studies in law and social science that seek to answer questions about discrete causal impact. We do not dispute their value. Rather, the topic of this essay is the unique contributions to knowledge production in law and social sciences that case studies can provide. 3There is a large literature on causal mechanisms. Hedstr¨om & Ylikoski (2010) offer an excellent overview; see also Elster (1989). www.annualreviews.org • The Use of Case Studies 385 effects see much more commonality. In short, rather than restricting research queries to the precise impact of a given variable on a speciﬁc outcome, case study researchers often ask questions that precede, complicate, or mediate those queries. Case studies explore areas in need of greater research attention but for which there are few data available, trace how hypothesized factors lead to a given legal phenomenon, or start with a puzzling or troubling legal outcome and identify more and less plausible possible causes. In the next section, we offer illustrations of each of these uses of case study research. However, because these studies, by deﬁnition, seek robust and full accounts of the phenomena under study, most of them check multiple boxes vis-`a-vis the major value of case study work in law and social science. We therefore do not propose that our illustrations belong only in the category in which we discuss them. Rather, we aim to highlight some classic and contemporary works that offer major contributions to at least one of the categories above. THEORIES, CONCEPTS, AND MECHANISMS Theory Building One of the most important and common uses of case studies is to generate, reﬁne, question, or challenge extant theoretical frames. In law, this value is compounded by the speciﬁc interest societies writ large have in understanding the processes, relations, and pathways to speciﬁc legal outcomes. The intensive study of a particular phenomenon (e.g., country, time period, context, or process) offers the potential to identify a full (or fuller) range of factors that might explain a speciﬁc legal outcome/event/process. In “Constitutional Ethnography,” Scheppele (2004, p. 389, emphasis added) provides a particularly compelling articulation of the value of focused, intensive analysis: The scholar, the citizen, and the politician typically care about constitutional orders one at a time, as individuals care about their own life trajectories. And sometimes the unexpected and the contingent matter more than the broad patters in determining what occurs in individual cases. It does only a limited amount of good, therefore, to say that...certain judicial selection mechanisms are correlated with a particular sort of judicial activism. What most people want to know about constitutions is whether Germany or Taiwan or Nigeria would do better if their constitutions contained [certain] features, not just whether regimes on average work better with one design rather than another...In general...the study of individual polities up close and in detail is nearly always more helpful for those concerned with the foibles and fates of particular constitutional regimes than ambitious multivariate models in this ﬁeld, given that the number of relevant countries is typically smaller than the number of relevant variables one would want to take into account. Burawoy & Hendley’s (1992) case study of a Moscow enterprise in the early years after
the fall of the Berlin Wall illustrates Scheppele’s point and its importance for theory building through case studies. By looking closely at one enterprise, Burawoy & Hendley challenge a major piece of scholarly wisdom about how legal norms and institutions function in post-communist enterprises. The conventional view was that the structure of Soviet enterprises carried over into the new, post-Soviet world in their internally coherent and strategic actors whose main goal was to bargain with external organizations and protect themselves and their resources, regardless of efﬁciency or proﬁtability. Burawoy & Hendley reveal that the two features of the Soviet system that underpinned the conventional wisdom—central planning and suppression of opposition—were rapidly eroding. The resulting conditions—less state control and more autonomous enterprises—led to 386 Miller opposing and competing strategies within a single enterprise and efforts to mobilize the workforce against management. The value of Burawoy & Hendley’s (1992) study is in its recognition of the problems inherent in importing theories of Soviet enterprise into the early years of post-Soviet economies. Moreover, discussing the value of their case study in the conclusion, the authors highlight their theoretical contribution: How typical is Rezina? Without more case studies it is difﬁcult to know—although our own visits to different enterprises suggest that the divided enterprise is quite common. Whatever the statistical distribution between divided and uniﬁed enterprises, our theoretical point remains. With the collapse of the party state, both of the party and of the apparatus of central planning, so enterprises assume much greater autonomy. It therefore becomes important to examine how internal interests become structured and with what consequences for the effectiveness of the enterprise. We have to dispense with the old models of the monolithic enterprise and open what was a black box to reveal how structurally deﬁned interests are politically combined into economic strategies. (Burawoy & Hendley 1992, p. 394, emphasis added) In a more contemporary example, Lemaitre & Sandvik (2015) offer a contribution to theorizing legal mobilization through their analysis of the use of law in the context of violent conﬂict and displaced persons in Columbia. Their study exposes how legal scholars largely deploy a liberal democracy–centric understanding of law and social movements, one that rarely considers the role of violence on legal mobilization. Lemaitre & Sandvik (2015, p. 9) argue that, although a large literature on law and social movements exists, there is a dearth of socio-legal literature on the use of legal means in violent contexts. The phenomenon, however, is widespread. The lack of examination of these contexts hinders the understanding of much social movement legal organizing outside industrialized democracies. Neither social violence nor armed conﬂict necessarily eliminates legal mobilization: they do, however, present particular challenges to the way it is carried out. Lemaitre & Sandvik’s study not only ﬁlls a gap in law and social movements literature by examining a context of violence and displacement but also provides ample evidence that political mobilizing for legal rights does occur in very dangerous contexts, and that it can potentially improve lives. The useofacasestudyallowsLemaitre&Sandviktoillustratethewaysinwhichimportantprecursorsof social movements, such as access to resources, political opportunities, and frames of mobilization, can undergo substantial destabilization in violent contexts; the manner in which these aspects can be used will necessarily change as well. The analysis, by the authors’ own account, is intended to stimulate additional empirical analyses of law, legal mobilization, and social movements in dangerous contexts. Another major area of theory building with case studies in legal scholarship is the analysis of the sometimes cavernous gulf between law on the books and law in action. Valverde (2012) offers an example by examining local decision making in the city of Toronto. She ﬁnds that seemingly democratic processes, in formal terms, are typically implemented in ways that actually serve to reinscribe disadvantages for already marginalized groups. Gap studies, as they are dubbed, lend themselves particularly well to case study approaches because a single case can pose serious challenges to standard assessments of how law functions. Skolnick’s (1967) Justice Without Trial is among the most inﬂuential of these early studies because it exposed the surprisingly large gap between how constitutional rules had been articulated by courts and legal activists and how police actually functioned on a day-to-day basis (see Roussell 2015 for a contemporary example of the www.annualreviews.org • The Use of Case Studies 387 disconnect between legal rules/discourse and practice in policing; see Gould & Barclay 2012 for an excellent overview of gap studies). Case studies in contemporary legal scholarship can also pose signiﬁcant challenges to a set of theories and empirical conclusions that are already very well deﬁned. Massoud’s (2013) Law’s Fragile State uses a
longitudinal case study of an “unstable, authoritarian regime”—Sudan—to develop theory in response to two pieces of conventional wisdom: ﬁrst, that law is largely absent in failed states, and second, that the development of the rule of law and legal institutions is likely to contribute to both the robustness of democracy and respect for human rights. Massoud (2013, p. 13) argues that “the guiding assumption about law’s failure or absence during states of violence has stunted the development of theories on the diverse ways that legal tools matter as resources to political actors.” Massoud labels Sudan a “critical case” for scholarly claims that law is largely irrelevant in authoritarian, failed contexts and that law is typically a means to establish strong democratic institutions. Massoud’s analysis rejects this conventional wisdom and instead shows how the law is essential to state building, even in authoritarian contexts, and is not an unvarnished good. Instead, law’s “normative content” ﬂows from the uses it is put toward by those who deploy it. This means that “building law will [not necessarily] lead to a robust rule of law or a reduction in political repression” (p. 224), and instead, scholarly attention ought to turn to theory building to detail the signiﬁcance and consequences that follow from who is using the law, how, and for what purposes. Massoud (2013, p. 215) concludes by pushing back against broad claims about the symbiotic relationship between the rule of law and democratic development: It has practically proved challenging if not impossible to build the rule of law without building the law itself. The cases in this book suggest that forms of legal politics that reinforce the authority and power of legal institutions are more likely to sustain an authoritarian state than to usher in a new era of democratic rule, at least in the short term. The starting point for Massoud’s analysis—an instinct or gut feeling that something is amiss in extant theorizing—is a common one for legal scholars who use case studies. Massoud chose a hard case, one that was unlikely to reveal law functioning in any kind of robust fashion. By carefully tracing law, rights discourse, and legal institutions in Sudan, Massoud demonstrated that each of these are used as a kind of “legal politics” by authoritarian regimes in a variety of ways to “absorb, defuse, and stymie grievances” (p. 207). Law’s potent symbolic power in this case diverted civil society toward reform strategies based upon human rights law and away from satisfying material needs of the disempowered through the application of meaningful pressure to the regime. A long list of case studies in law and social science have revised extant theories about law and authoritarian regimes, or transitioning democracies, by checking theoretical frames against ground-level realities using intensive analysis of single, or a few, cases (see Bumiller 1987; Burawoy & Hendley 1992; Cheesman 2011; Ginsburg 2003; Hendley 1993, 2017; Kapiszewski 2012; Scheppele 2003; Tezc¨ur 2009). Case studies in the tradition of theory destabilization can also challenge unexamined assumptions on which theories of law and society are based. Zackin’s (2013) study of early legal activism by the American Civil Liberties Union (ACLU) poses a substantial challenge to conventional wisdom on the ability of social movements to be successful without resorting to court-centered, litigious strategies. Through an intensive analysis of the development and activities of the ACLU in the ﬁrst half of the twentieth century, Zackin demonstrates that the ACLU’s early actions focused heavily on legislative politics because of the Progressive movement’s concerns about judicial antipathy toward progressive causes. The organization’s court-centered work was narrowly rooted in an effort to defend conscientious objectors during the First World War and to create a constitutionalism among legislators that was cognizant of the social and moral consequences 388 Miller of militarism. It was only when the organization’s direct, political tactics were met with regular resistance, including violence, that the ACLU began investing more time and resources in litigation. The move was so controversial that numerous prominent members resigned. Nonetheless, the hostile environment in the 1920s for defenders of radical speech was such that the popular constitutionalism strategy rendered such activities largely ineffective. More importantly, perhaps, Zackin’s study demonstrates that court-based strategies hardly preclude grassroots political ones, and in fact, the ACLU story suggests that the litigation the ACLU engaged in complemented and even facilitated constitutional debate among the public. It is difﬁcult to imagine the state of legal scholarship without case studies such as those described here. Almost all social science research begins with some theoretical engagement, and it is not uncommon for researchers interested in isolating the effect of discrete factors using large-N analyses to draw on the theories formulated through case studies (e.g., Uggen & Blackstone 2004, citing Merry
1990). Concept Formation Feeley’s (1979) The Process Is the Punishment is a useful study for highlighting contributions of case study work to concept formation. Feeley speciﬁcally addresses concerns about the use of a single case study in his analysis of one lower court in New Haven, Connecticut. Acknowledging that drawing generalizations from a single criminal court is problematic, Feeley (1979, p. xxviv) argues persuasively that, given his interests, a single-case approach is actually a better methodological approach than studying many cases for the following reason: I am not convinced that current knowledge of criminal court processes is well developed, and unless or until there is a substantial body of carefully drawn descriptive and inductive research on which typologies can be drawn and until classiﬁcations are made, the beneﬁts of an analysis of a single setting may be as great as, if not greater than, those of comparative studies. This is a classic use of a case study in law and social science. The speciﬁc area of interest that has drawn Feeley’s attention—lower criminal courts—had an insufﬁcient array of reliable analyses, and therefore, theories and concepts developed around lower courts would likely be misstated, absent greater empirical analysis that seeks to understand the phenomenon itself. Feeley’s study thus facilitates both theory building and concept formation. In a sense, Feeley is asking, what exactly is “lower court criminal process”? Answering this question is not merely an exercise in deﬁning and detailing the day-to-day actions of court actors. Rather, it is a project of identifying and consolidating the concept of “criminal process” in the ﬁrst place to ﬂesh out what constitutes “lower criminal courts.” By closely observing the daily operations of a single lower court handling minor offenses in New Haven, Connecticut, Feeley discovers that the traditional understandings of lower court decisions—ﬁnes, community service, occasional custodial sentences—are not the primary mechanism through which court actors impose punishment. Rather, the lower criminal court process to which the defendant is subjected, including drawn-out hearings, lengthy meetings with attorneys, missed days at work, fees to bail bondsmen and attorneys, and large periods of wasted time, can themselves be quite punishing, so much so that both prosecutors and defense attorneys often agree that the pretrial process itself is enough of a punishment and that additional sanctions are unnecessary. Feeley’s phrase “the process is the punishment” is an excellent example of the power of a case study to provide descriptive work that offers a solid foundation for further theorizing about the function, operations, causes, and outcomes of a phenomenon of interest. It also brought into the law and social science lexicon a concept that would be drawn upon, extended, and challenged in www.annualreviews.org • The Use of Case Studies 389 subsequent works (see Earl 2008 for an overview of citations and impact; see also Brereton & Casper 1981, Jacob 1983, Silbey 1981). Feeley’s book is one example in a sizeable list of law and society scholarship that used the intensive study of single or a few cases to develop theory about and establish (or begin to establish) conceptual clarity on the criminal courts (Eisenstein & Jacob 1977, Flemming et al. 1993, Galanter 1974, Heumann 1978, Mather 1979, Scheingold 1991; see also Ryan 1980 for a critique). Sometimes a speciﬁc research outcome results in a ﬂurry of studies challenging the use of a concept or concepts in that work. A classic illustration is the meaning of the concept of impact vis-`a-vis the role of law in social change. For example, Rosenberg’s (1991) well-known analysis of US Supreme Court decisions, The Hollow Hope, inspired dozens of challenges to his conceptualization of impact, and case studies were frequently used to challenge, reﬁne, and even reject Rosenberg’s deﬁnition. McCann (1992, p. 727), for example, argues that Rosenberg’s conception of the impact of Supreme Court decisions suffers from a “zero-sum” assumption when, in fact, “discrete institutions are almost never solitary organs of change in our political system.” Others have taken up the task of examining the impact of court decisions in a wide range of contexts (e.g., Swedlow 2009 on environmental legislation, Coleman et al. 2005 on the Montgomery bus boycott, Paris 2001 on school ﬁnance, and McCann 1994 on pay equity). Concept formation is vital in all areas of social science (see Goertz 2006), and legal scholarship regularly deploys a wide range of legal concepts—rights, impact, norms, rules, litigation, and constitutions—that are greatly enhanced by case studies that are aimed primarily or even exclusively at conceptual clarity.
Causal Mechanisms Legal scholars seek to identify the mechanisms that would link purported causes and effects for several reasons. Some scholars are skeptical of grand causal narratives and seek intermediaries that can demonstrate relationships and direct linkages. Others are interested in operationalizing and identifying the pathways of actors, actions, cognitions, and/or environmental factors that would need to be observed if current theories accurately describe what is going on in the world. In her classic study of the development and implementation of a major Italian policy reform in 1970—the Workers’ Rights Law—Calavita (1986) analyzed a single case to better understand the linkages, or mechanisms, that should be observable if conventional wisdom about the law and the state were correct. Dominant narratives treated state action and legal rules either as monolithic and determinate or as largely symbolic and unforced. By carefully tracing the origins of the law and its consequences, including exploring data on industrial productivity and accidents, worker injuries, and strikes, Calavita sought evidence of the causal processes that should be visible to support extant theories. Rather than ﬁnding the Workers’ Rights Law a hollow shell with no impact, or a tour de force that was aggressively enforced through various channels of political and legal power, however, Calavita ﬁnds that Italy’s postwar economic development, fragmented state, and unique political context both allowed the enforcement of certain provisions of the law while also blunting its more radical implications. In other words, both the design and implementation of the law shaped, and were shaped by, aspects of economic, political, and social institutions, routines, and expectations in Italy. Calavita uncovers no process or mechanism indicating that the law either was entirely coopted by industry or generated broad new legal terrain upon which labor was able to forge new authority and accountability. In this way, she argues, law is indeterminate, not static, and its capacity to actually disrupt the status quo or merely appear to do so depends on underlying socioeconomic and political conditions. Moreover, law can cut both ways simultaneously, as in 390 Miller the Italian case, where the law “cautiously responded to workers’ demands for control of the work environment, yet on the whole, tended to limit the legitimacy of the spontaneous, grass-roots groups that increasingly characterized the Italian labor movement” (p. 208). This in-depth analysis of the Italian case illustrates how case studies can reveal causal mechanisms that upend conventional wisdom and lead to theorizing that is more consistent with how legal rules function in the real world than those offered by the existing literature. In much of the social sciences, causal mechanisms are the black box of a research project, of little interest to those strictly engaged in identifying causal effects. But by seeking such mechanisms, law and society scholars have drawn into question conventional wisdom about the ways in which law is (or is not) transmitted. Calavita’s analysis demonstrates one such example, by revealing how existing theories that place the state and legal phenomena at the center of analysis miss crucial contexts in which both are situated (e.g., see also previous discussion of Burawoy & Hendley 1992). Moreover, such analyses demonstrate a recurring ﬁnding in case studies in law and social sciences: the constitutive nature of law. Not all legal scholars embrace this notion—not even all those using case studies—but the idea that legal rules, norms, and actors both shape and are shaped by other societal forces is a fairly common one among legal scholars engaged in case study work (see McCann 1994 for a speciﬁc discussion of constitutive versus causal explanations). Calavita’s analysis is but one classic example from a large body of foundational works that posed challenges to conventional wisdom about law and the state by looking for mechanisms (Brereton & Casper 1981, Eisenstein & Jacob 1977, Heumann 1978, Jacob 1983, Mather 1979, Milner 1987, Scheingold 1984; more recently, see Armour & Lele 2009, Holzmeyer 2009). Some of the most signiﬁcant of these studies explored the criminal justice system during the 1960s and 1970s. In The Politics of Street Crime, for example, Scheingold (1991) explored one American city and demonstrated how the politicization of crime nationally and the function of the criminal justice system locally were frequently well out of sync with one another. Conventional wisdom largely accepted that national politicization of crime in the punitive direction resulted directly in local increases in arrests, prosecutions, and punishments. But Scheingold (1991, p. 858) noted a “striking contrast between the persistence of street crime as an issue in national politics and its much more episodic salience in local politics.” As it turns out, the mechanisms by which crime becomes a political issue in national politics are complicated by wholly different mechanisms at the local level, including material conditions, institutional intransigence, and local strategic actors and
interests. More recent case studies in criminal justice in the United States follow in this tradition, illustrating that many of the cause-and-effect claims assumed to be true are deeply complicated when researchers engage case study analysis to identify the full range of mechanisms and pathways by which particular outcomes may occur (Barker 2009, Campbell 2011, Miller 2008, Miller & Eisenstein 2005, Schoenfeld 2010). There is some debate among research methodologists as to what constitutes a causal mechanism, the distinction between mechanisms and causal process observations, whether mechanisms are themselves explanations, and the relative importance of mechanisms in the understanding of causal relations (e.g., Elster 2007, Hedstr¨om & Swedberg 1996, Seawright 2016, Tilly 2001). The point here is not to adjudicate among alternate perspectives but simply to note the large body of work in social science research traditions that sees mechanisms, however deﬁned, as an essential component of describing, explaining, and understanding causality. IMPROVING THE USE OF CASE STUDIES IN LAW AND SOCIAL SCIENCES Case studies in the social sciences are not ends in themselves. Case studies are most productive when the beneﬁts of that approach are closely aligned with the research questions. Not all types www.annualreviews.org • The Use of Case Studies 391 of inquiry are well suited to case study research, and not all research described as a case study is designed to maximize the speciﬁc contributions for which case studies are best suited. Such studies miss an opportunity to gain the insights for which case studies are particularly useful. This ﬁnal section offers two suggestions for enhancing the contribution that case studies can make to law and society scholarship. First, sometimes a case study is not a case study. That is, the term is often used loosely to apply to any analysis in law and social sciences that includes one or just a few cases, or that uses qualitative methodological approaches. This can undermine what is genuinely valuable about case study research and weakens the linkage between research questions and research design. Some self-described case studies are actually thick description: ethnographic accounts of sociolegal phenomena describing a complex range of legal processes and outcomes to offer detailed accounts of temporally and spatially unique cases. This is not to say that ethnographies cannot be part of case studies. They most certainly can be (as in legal anthropology, e.g., Merry 1990). But many methodological tools can be used in the context of a case study, so no particular research method automatically turns a research project into a case study. As we noted earlier, the decision to engage a case study approach is less a methodological one than a decision that comes directly from the type of questions the researcher has in mind. One way to avoid this is to make explicit the reason for the use of a case study, the beneﬁts of doing so, and the speciﬁc ﬁndings that this particular case study approach provides. Is the study aimed at identifying, categorizing, or explaining causal mechanisms? Is one of the aims to clarify concepts or build or challenge theory? Perhaps the main aim is to explore a puzzling outcome that seems highly inconsistent with extant theories or assumptions. The reader should not have to infer why the study of single or a few cases is an effective research design. A recent illustration of careful explication of a case study’s purpose is Kapiszewski’s (2012) analysis of Brazilian and Argentinian high court decisions involving politically charged issues and conﬂicts with other branches of government. Kapiszewski explains her decision to look at a single issue—economic policy—over time in these two countries, how Argentina and Brazil offered similarities and differences on the relevant factors of interest to her, and how and why an intensive analysis of two countries provided the best approach to understanding her primary question: How do high courts and elected authorities decide to handle politically charged cases, where the constitutionality and popularity of a given law or action oppose one another? By contrast, where researchers are motivated to identify the average effects of a particular type of legal phenomenon on a speciﬁc legal outcome, case studies rarely provide the best approach. That does not mean case studies can never isolate a single and speciﬁc cause. Extreme outliers often garner the attention of case study researchers precisely because the researchers seek to understand the speciﬁc disruption that led to the unusual outcome. For all of the emphasis in the quantitative research tradition on generalizability and predictability, major changes to law (in all its forms) sometimes occur in seismic shifts as a result of unexpected, unusual, and unpredictable events (see Collier et al. 2010, Goertz & Mahoney 2012, and Ragin & Becker 1992 for more general discussions of case selection). But such instances are different in kind from those seeking average treatment effects precisely because the research questions are entirely different. Second, careful attention to case selection is a crucial part of
credible and inﬂuential case studies. Even where the selection of a case is obvious—because the existence of the case itself inspired the researcher to question conventional wisdom, for example—scholars enhance the scope and reach of their ﬁndings when they provide readers with a clear explanation and justiﬁcation for why this particular case is an appropriate one, given the questions the researcher has in mind. It is no secret that sometimes the reason a speciﬁc case is chosen has as much to do with practical considerations 392 Miller as theoretical ones. But this is problematic only if the researcher is trying to shoehorn such a case into a set of questions for which the case is ill suited. By contrast, having a “theory in search of a test case or a case in search of a theory for which it is a good test” is perfectly viable, provided the researcher takes care to ensure the appropriate ﬁt between theory and case (George & Bennett 2005, p. 85). Such approaches are not unusual in law and social science and can be driven by, for example, an unexpected court decision, or a legal phenomenon that does not ﬁt conventional wisdom. What is crucial, however, is that researchers specify what this case, or set of cases, can help us understand, or why a particular theory can be better understood or revised based on the case or cases selected. As noted earlier, sometimes a study is fundamentally about what the phenomenon under study is a case of, per Ragin & Becker (1992). In such instances, researchers are in a particularly good position to explain the contribution that their particular case makes to knowledge production through concept formation, theory building, and so on, but not all law and social science scholars make such contributions explicit as functions of the case study per se. CONCLUSIONS Legal scholars use case studies to great effect, with many serving as foundational even decades later. Approaching legal research from the case study perspective affords scholars the opportunity to, for example, identify and analyze new legal phenomena, reﬁne and redeﬁne legal concepts, and challenge existing assumptions and theories about how law works in society. One, but by no means the only, hallmark of a good case study is when concepts derived from it become stock and trade within the ﬁeld, and many of the examples discussed or referenced above provide such concepts, e.g., “process is the punishment” (Feeley 1979), “judicialization” and “juridiﬁcation” (on the former, Hirschl 2009, Moustafa 2007; on the latter, Kawar 2014, Silverstein 2009), “everyday disputing” (Merry 1990; see also Greenhouse et al. 1994), “street-level bureaucrats” (Lipskey 1979), and “myth of rights” (Scheingold 1984). Even still, such concepts will continue to be reﬁned because case study scholars in law and society are likely to see multiple causal pathways and to observe variation and change in new contexts (see Kagan 2003, Levi-Faur 2005, and Kelemen & Sibbitt 2005 for a useful discussion of legal concepts). The most inﬂuential case studies in law and social science may begin with a simple hunch or a general curiosity about a speciﬁc legal context or phenomenon. But the execution of the study is careful and thorough and clearly articulates the contribution of the case study to extant knowledge. Though much of social science is focused on new computational techniques and big-data analysis, such approaches to knowledge production are not substitutes for the vital contributions to scientiﬁc inquiry in the form of theory, concepts, and mechanisms that case studies provide. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. LITERATURE CITED Armour J, Lele P. 2009. Law, ﬁnance, and politics: the case of India. Law Soc. Rev. 43(3):491–526 Babbie ER. 2012. The Practice of Social Research. Belmont, CA: Wadsworth Barker V. 2009. The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders. New York: Oxford Univ. Press www.annualreviews.org • The Use of Case Studies 393 Becker HS. 1992. Cases, causes, conjunctions, stories, and imagery. See Ragin & Becker 1992, pp. 205–16 Bell J. 2002. Policing Hatred: Law Enforcement, Civil Rights, and Hate Crime. New York: N.Y. Univ. Press Brady H, Collier D. 2010. Rethinking Social Inquiry:
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analytics. Big data analytics have been taken up in a wide range of ﬁelds, including ﬁnance (Pasquale 2015), labor (Ajunwa et al. 2017), social science (Lazer & Radford 2017), social media (Gillespie 2014), journalism (Christin 2018), marketing and credit (Fourcade & Healy 2017), and policing (Brayne 2017, Ferguson 2017). Law enforcement agencies are starting to use big data in a range of daily operations and surveillance activities, including patrol, investigation, and crime analysis. Police use of big data is the subject of contentious debate in policy, media, legal, regulatory, and academic circles. However, advances in data analytics far outpace social scientiﬁc research and legal responses to the new data landscape. This article draws on a growing body of work on law enforcement’s use of big data to examine whether and how the collection, analysis, and deployment of big data are transforming law enforcement activities, and to what legal consequence. It argues that although big data policing represents, in part, a recapitulation of existing police practices, big data analytics are associated with certain fundamental transformations in police activity. Forms of dragnet and directed surveillance represent a migration of law enforcement operations toward intelligence activities (Brayne 2017). Big data policing poses challenges for existing legal frameworks governing police activity. Therefore, the legal implications of law enforcement’s use of big data span across criminal, constitutional, administrative, and privacy law. INSTITUTIONAL ADOPTION OF BIG DATA ANALYTICS Digital information is being produced at an unprecedented rate. Over 90% of the data in the world have been created in the last two years. As data have proliferated, so too have deﬁnitions of what constitutes big data. One of the most-cited deﬁnitions is Laney’s (2001) description of the three V’s of big data: volume, variety, and velocity. This review takes big data to be a data environment characterized by four characteristics: It is vast, fast, disparate, and digital. First, big data analytics involve the analysis of large amounts of digital information...Second, big data typically involves high frequency data observations and fast data processing. Third, big data is disparate—it comes from a wide range of institutional sensors and involves the merging of previously separate data sources. Fourth, big data is digital. The mass digitization of records facilitates the merging and sharing of records across institutions, makes storage and processing easier, and makes data more efﬁcient to analyze and search remotely. These four characteristics...enable the use of advanced analytics—such as predictive algorithms or network analysis—and complex data display—such as topical-, temporal-, or geo-analysis. (Brayne 2017, p. 980, emphasis in original) A key feature of the big data landscape is “function creep” (Innes 2001, p. 8): the ability of data initially collected for one purpose to be used for another often unintended or unanticipated 294 Brayne purpose. When digital data can be easily stored and shared, “the value of information no longer resides solely in its primary purpose” (Mayer-Sch¨onberger & Cukier 2013, p. 153). Records initially introduced with one intention are repurposed, reﬁned, and expanded for new problems, institutions, or applications. Existing social scientiﬁc work emphasizes different motivations institutional actors have for using big data. From a technical perspective, big data is a means by which organizational actors may improve efﬁciency through improving prediction, ﬁlling analytic gaps, and more efﬁciently allocating scarce resources. The institutional perspective (DiMaggio & Powell 1983, Meyer & Rowan 1977), by contrast, does not assume organizational structures stem from technical imperatives (Scott 2004). Instead, it highlights the role of culture, suggesting organizations operate in technically ambiguous ﬁelds in which they adopt big data analytics in response to wider beliefs about what organizations should be doing (Willis et al. 2007). Using big data may confer legitimacy; if other institutions are using it for decision making, there may be institutional pressure to conform. Of course, these perspectives are ideal types and are not mutually exclusive. Research suggests law enforcement adopted big data analytics in response to both technical and institutional pressures. Big data holds appeal for law enforcement as a means of increasing efﬁciency and accountability. It may improve the prediction and preemption of behaviors by helping law enforcement deploy resources more efﬁciently, ultimately helping prevent and intercept crimes, and thus reducing crime rates. It also holds potential as an accountability mechanism and response to criticisms law enforcement organizations face over discriminatory practices. For example, data-driven policing is being offered as a partial antidote to allegations and ﬁndings of excessive force, unlawful stops and
arrests, and civil rights violations [e.g., see Smith & Austin 2015, US Dep. Justice 2015 (2001), US Dep. Justice Civil Rights Div. 2015; Floyd et al. v. City of New York et al. (2013)]. Despite recent public attention on law enforcement’s use of big data, police use of data is not a new phenomenon. Fifty years ago, the 1967 President’s Commission on Law Enforcement and Administration of Justice encouraged the adoption of new technologies to improve efﬁciency and fairness in the criminal justice system. At that time, policing was characterized by random patrol, rapid response, and reactive investigations (Sherman 2013). Based on emerging research, practitioners and researchers grew increasingly aware that existing police strategies such as random patrol and rapid response had little effect on crime, catalyzing a shift from reactive to more proactive, evidence-based forms of policing, such as hot spots policing (Braga & Weisburd 2010, Sherman et al. 1989). In the 1990s and early 2000s, CompStat—a managerial model for identifying crime patterns, quantifying and incentivizing police activity, and directing police resources— spread from New York City to police departments across the United States and abroad (Weisburd et al. 2003). The attacks on 9/11—widely viewed as a case of information sharing failure in the intelligence community—spurred the development of “intelligence-led policing” (Ratcliffe 2008). It catalyzed federal, state, and local law enforcement ofﬁcials to join forces to improve criminal justice data collection and information sharing. Federal agencies provided considerable funding to local law enforcement agencies to collect a wide range of new data, as they were viewed as on the front lines of the domestic war against terror (Waxman 2009). Federal funds were allocated for the construction of fusion centers—multiagency, multidisciplinary surveillance organizations that aggregate data from public and private sources (Pasquale 2015). Federal and local agencies partnered with technology companies to enhance their data collection and analysis capabilities. For example, Palantir is a software company initially partially funded by In-Q-Tel, the Criminal Intelligence Agency’s (CIA’s) venture capital ﬁrm, that designs analytic software originally used in national defense but now used by commercial customers, such as J.P. Morgan; federal agencies, such as www.annualreviews.org • Implications of Big Data 295 the CIA, the Federal Bureau of Investigation, Immigration and Customs Enforcement, and the Department of Homeland Security; and local law enforcement agencies, such as the Los Angeles Police Department (LAPD). Injections of federal funding are integral to the adoption and development of big data policing initiatives. For example, the Smart Policing Initiative encourages local police departments and researchers to use evidence-based, data-driven tactics. Likewise, in 2011, the US Department of Justice awarded the LAPD a $3 million grant to conduct a multiyear analysis of predictive policing. BIG DATA SURVEILLANCE Law enforcement uses big data in activities ranging from patrol to investigation, crime analysis, and risk management for two broad categories of surveillance: directed and dragnet. The key distinction between directed and dragnet surveillance is that whereas directed surveillance is focused on individuals and places under suspicion, dragnet surveillance is unparticularized and gathers information on everyone. Surveillance is deﬁned here as simply “the collection and analysis of information about populations in order to govern their activities” (Haggerty & Ericson 2006, p. 3). Directed Surveillance One of the most widespread directed surveillance practices is algorithmic predictive policing. According to a 2014 survey of 200 police departments, 38% of responding departments were using predictive policing, and 70% of departments indicated they planned to use it by 2017 (Police Exec. Res. Forum 2014). In predictive policing, algorithms—broadly deﬁned as “formally speciﬁed sequence(s) of logical operations that provides step-by-step instructions for computers to act on data and thus automate decisions” (Barocas et al. 2014, p. 3)—are being used to guide police decision making about whom and where to police. It is informed by a large body of empirical work that demonstrates that crime is not randomly distributed across people or places. Rather, research emphasizes the importance of place-based environmental conditions (Brantingham & Brantingham 1981, Ratcliffe et al. 2011, Sampson et al. 1997), situational decision making (Keizer et al. 2008, Matsueda et al. 2006), chronic offenders (Braga et al. 2001, Uchida & Swatt 2013), and social networks (Papachristos et al. 2015). Place-based predictive policing. Place-based predictive policing involves using
historical crime data as training data in an algorithm to predict when and where future crime is likely to occur. The largest predictive policing company is PredPol. PredPol’s algorithm uses data from police departments’ record management systems on location, type, and time of crimes as inputs to predict future crime. It is predicated on the near-repeat model, which suggests that once a crime occurs in a location, the immediate surrounding area is at increased risk for subsequent, similar crimes (Mohler et al. 2015). PredPol produces 500 × 500 ft2 boxes overlaying small areas of division maps. Patrol ofﬁcers are encouraged to spend time in predictive boxes, a strategy referred to as risk-based deployment. Deployment is based on available time, such as when ofﬁcers are not responding to calls or “booking a body.” Ofﬁcers record their self-reported minutes in the predictive boxes on their in-car computers. Although data drive deployment, what the police do once in the predictive box, and how long they stay there, remains within their discretion (Brayne 2017). PredPol is currently used in almost 60 departments, the largest of which is the LAPD. Another major predictive policing software is HunchLab, produced by Azavea. HunchLab uses risk terrain modeling to account for the interaction of social, behavioral, and physical risk 296 Brayne factors. In contrast to PredPol’s parsimonious model, HunchLab’s models include a much wider range of variables (Brayne et al. 2015), such as population density; location of bars, churches, and transportationhubs;andcensusdata.Asof2017,HunchLabisbeingusedinthePhiladelphiaPolice Department, Miami Police Department, and New York Police Department (NYPD), among others. Advocates of predictive algorithms argue that by relying on unbiased—or mechanical— assessments, algorithms may help deploy resources more efﬁciently and objectively (Daston & Galison 2007). In a study of police use of big data in Los Angeles, Brayne (2017, pp. 989–90) described an LAPD captain’s explanation that relying on data, rather than human interpretation of crime patterns, helps him deploy resources more efﬁciently: There’s an emotional element to it, and you think right now with crime being this low, a cluster could be three or four crimes. Clusters used to be 10, 12 crimes. Now three or four and they jump on it, you know. So, there could be overreaction. Because, there’s, you know, I mean it’s a human doing it. And they cannot sort out what’s noise. However, research on algorithmic fairness suggests that rather than eliminating human bias, bias may be an “unintentional emergent property” of the data collection and analysis process itself (Barocas & Selbst 2016, p. 671). For example, if historical crime data are used as inputs in a location-based predictive policing algorithm, the algorithm will identify areas with historically higher crime rates as being at high risk for future crime, and ofﬁcers will be deployed to those areas and will thus be more likely to detect crimes in those areas, thus creating a self-fulﬁlling statistical prophecy in which crime rates increasingly reﬂect enforcement practices. Moreover, crime data are incomplete—estimates of unreported crime range from 17% to 67%, depending on the crime (Langton et al. 2012)—and are not missing at random. Crimes that take place in public are more likely to be detected, individuals that do not trust the police are less likely to report crimes (Desmond et al. 2016), and police focus their attention and resources on black communities at a disproportionately high rate relative to drug use and crime rates (Beckett et al. 2005). In other words, sampling bias in crime data may lead to a ratchet effect that reinforces discrimination. However, once they are inputted as data, the predictions appear impartial (Brayne 2017). Engineers at predictive policing software companies are increasingly aware of this feedback loop and are making efforts to interrupt it. For example, HunchLab has introduced a degree of randomness to its algorithm, occasionally directing ofﬁcers to medium-risk locations instead of only high-risk locations. To date, few peer-reviewed studies evaluate the efﬁcacy of place-based algorithmic policing (Kennedy et al. 2011, Mohler et al. 2015). Mohler and colleagues (2015) conducted a randomized controlled ﬁeld trial and found that PredPol’s algorithm outperforms crime analysts in predicting future crime, and that using algorithmic forecasting to direct patrols led to small but statistically signiﬁcant reductions in crime volume. However, independent future research is needed, as the authors include cofounders of and stockholders in PredPol. Person-based predictive policing. Whereas location-based predictive
policing is typically used to predict property crime, person-based predictive policing is more commonly used to predict violent crime. Law enforcement uses data to identify individuals or groups most likely to be involved in crimes as victims, offenders, or both. Person-based predictive policing is premised on the idea that violent crime is concentrated among a small percentage of individuals in a population. Therefore, focusing police resources on the highest-risk individuals should efﬁciently reduce www.annualreviews.org • Implications of Big Data 297 crime. Person-based predictive policing encompasses a wide range of analytic approaches, such as social network analysis and regression analysis of risk factors. Criminologists have long theorized about the role of social networks in shaping violence [e.g., Thrasher 2013 (1927), Whyte 1969 (1943)]. However, formal network analysis has become incorporated into social scientiﬁc research on violence and law enforcement interventions only in recent decades (e.g., Papachristos 2009). One of the ﬁrst networked interventions was Operation Ceaseﬁre, sponsored by the National Institute of Justice (NIJ). Informed by research that demonstrated violence was concentrated both spatially and within groups of people (Braga 2003, Cook & Laub 2002), researchers and practitioners in Boston took a data-driven approach to reducing gun violence. They used a combination of formal network analysis and qualitative research methods to develop a focused deterrence strategy targeting speciﬁc gangs and gang members (Braga et al. 2001, Kennedy 1997, Kennedy et al. 1997). In the past two decades, social network analysis (Wasserman & Faust 1994) was used to understand the spatial diffusion of homicide (Cohen & Tita 1999), gang leadership and group structure (Papachristos 2009), turf boundaries (Brantingham et al. 2012), and contagion and reciprocity (Papachristos 2009, Papachristos et al. 2015). The network turn in social scientiﬁc research on gang violence has informed law enforcement interventions (Papachristos & Kirk 2015). In their recent review of social networks and gang violence reduction, Sierra-Ar´evalo & Papachristos (2017) suggest that interventions should not be limited to law enforcement. Rather, they argue, social service providers, teachers, and other community experts can play an important role in targeted interventions for those at high risk of victimization. They also suggest analyzing not only coarrest data but also data on nongang ties—such as attachment to family, school, or employment that may inoculate individuals against exposure to violence—to better understand variation in victimization (Sierra-Ar´evalo & Papachristos 2017). In one pilot program implemented in Chicago—an NIJ-funded collaboration between the Chicago Police Department and Illinois Institute of Technology—individuals at high risk of being involved in future crime were identiﬁed using a proprietary model of coarrest networks (Saunders et al. 2016). As part of a broader predictive policing strategy, individuals with the highest algorithmic risk scores for gun violence were placed on a Strategic Subjects List (SSL), which was disseminated by central command. District commanders would use their discretion and decide on an intervention strategy in their district. The most common strategy was for ofﬁcers—alongside a social worker and community member—to go to the home addresses of individuals on the SSL to make a custom notiﬁcation visit. A quasi-experimental evaluation of the strategy found individuals on the SSL were no more or less likely to become a victim of a homicide or shooting than those in the comparison group, but they were more likely to be arrested for a shooting (Saunders et al. 2016). The LAPD implemented a different kind of point system. Operation LASER (Los Angeles Strategic Extraction and Restoration Program) began in 2011 and was federally funded through the Smart Policing Initiative. The strategy includes both place-based and offender-based models. The offender-based strategy was ﬁrst implemented in a low-income, historically high-crime division in South Bureau. The strategy involves ﬁrst plotting crimes in the division then identifying a problem crime—such as armed robbery—and generating a list of “chronic offenders” by gathering intelligence daily from patrols, the Parole Compliance Unit, ﬁeld interview cards, trafﬁc citations, release-from-custody forms, crime and arrest reports, and criminal histories. A point value is calculated for each individual: ﬁve points for a violent criminal history, ﬁve points for known gang afﬁliation, ﬁve points for prior arrests with a handgun, ﬁve points if they are on parole or probation, and one point for every police contact (Uchida & Swatt 2013). One ofﬁcer explained, We
said ok, we need to decide who’s the worst of the worst...we need something to pull them apart. So this was the important one, and this is really what gives the importance of FI-ing someone [ﬁlling 298 Brayne out a ﬁeld interview card] on a daily basis instead of just saying, okay, I saw that guy hanging out, I’m gonna give him two weeks and I’ll go FI [ﬁll out a ﬁeld interview card] him again. It’s one point for every police contact. (Brayne 2017, p. 987) Field interview, or police contact, cards are important intelligence tools for law enforcement. Although they vary by department, they generally include information such as names, addresses, physical characteristics, vehicle information, gang afﬁliations, and criminal history (Brayne 2017). In Los Angeles, there is also an open-ended section titled Additional Info where ofﬁcers can enter information about “Additional Persons, Booking No., Narrative, etc.” Ofﬁcers are trained to ﬁll out a card as soon as they interact with someone in the ﬁeld because, as one supervisor explained, “these things come into play later on in ways you could never imagine” (Brayne 2017, p. 987). Field interview cards were one of the ﬁrst data sources the LAPD integrated into the Palantir platform. When entered into the system, every ﬁeld interview is tagged with a date and time stamp and GPS coordinates. Like location-based predictive policing, person-based predictive policing can lead to a ratchet effect. It can generate a feedback loop in which an individual with a high risk score is more likely to be stopped, and that police contact further increases the individual’s score. Quantiﬁed police practices can place individuals already under suspicion under new and deeper forms of surveillance, while appearing to be objective or, in the words of one captain, “just math” (Brayne 2017, p. 997). Person-based predictive policing strategies can be used in conjunction with one another. For example, risk scores can be used in conjunction with social networks. Figure 1 provides a deidentiﬁed mockup of a network diagram in Palantir. To be in the “secondary surveillance network” (Brayne 2017, p. 992), individuals do not need to have direct contact with the police; they simply need to have a connection to the central person of interest. Individuals in the surveillance network are subject to collateral data collection, meaning data that were collected on them in non–law enforcement contexts can be integrated into the system and linked to other data points. Once data are inputted into the system, ofﬁcers can receive real-time alerts on, for instance, whether individuals are stopped by the police or interact with other government agencies whose data are integrated with the system. Dragnet Surveillance Dragnet surveillance, in contrast to directed surveillance, refers to surveillance technologies that gather information on everyone, rather than merely those under suspicion. One of the most pervasive dragnet surveillance tools is the Automatic License Plate Reader (ALPR). ALPRs can be static (e.g., at an intersection) or mobile (e.g., mounted on police cars). They take two pictures of every vehicle that passes through their line of vision—one of the car and one of the license plate—and record the time, date, and GPS location. Law enforcement can supplement their own ALPR data with privately collected readings, such as those gathered by repossession agents. ALPR data can provide a map of the distribution of vehicles throughout the city and, in some cases, may enable police to track individuals’ routine travel patterns or infer where they live or work based on where their car is repeatedly parked (Brayne 2017). There are several ways for law enforcement to use ALPR data: They can compare scans against heat lists of outstanding warrants or stolen cars (Joh 2016), they can place a “fence” around a location of law enforcement interest and track cars that go near that location, or they can simply store ALPR data for potential use during a future investigation. For example, one sergeant described an incident in which someone disposed of a dead body near a tourist attraction where there was an ALPR. By isolating those ALPR readings within the timeframe during which the body dump could have occurred, law enforcement could www.annualreviews.org • Implications of Big Data 299 Owner Of CA #DMV123 Green Toyota Prius Arrest involving: Guy Cross, Simon Bedleson Simon Bedleson 5569 W 3rd St. Arrest Involving: Guy Cross, PX980812322L1: Stolen Property 555-415-6543 555-531-0021 John Doe Jane Doe Grant Incognito Has Employee Appears In Appears In Appears In Operator Of Operator Of Lives/Lived With Lover Of Lives/Lived With Colleague Of Sibling Of Guy
Cross Owner Of CA #DMV123 Green Toyota Prius Arrest involving: Guy Cross, Simon Bedleson mon Bedleson 5569 W 3rd St. Arrest Invol Guy Cros PX9808123 Stolen Prop 555-415-654 555-531-0021 Jane Doe ant Incognito Has Employee Appears In Appears In Appears In Operator Of Operator Of Lives/Lived With Lover Of Lives/Lived With Colleague Of Sibling Of y Guy Cross Figure 1 The individual in the middle, Guy Cross, is a person with direct police contact. Radiating out from him are all the entities he is related to, including people, cars, addresses, and phone numbers. The relationships between entities—such as through cohabitation, employment, or an intimate relationship—are indicated on the connecting lines. Adapted from Brayne 2017. narrow their focus to three plates—one from Utah, one from New Mexico, and one from Compton. As the sergeant explained, assuming the Compton car was most likely to be involved, they ran the plate, saw the name it was registered under, searched the name in CalGang (gang database), saw that the individual was afﬁliated with a gang currently at war with the victim’s gang, and used that information to establish probable cause to obtain a search warrant, go to the address, ﬁnd the car, search the car for trace evidence, and arrest the suspect. (Brayne 2017, p. 993) Domain Awareness Systems are another example of dragnet surveillance. In the largest Domain Awareness System, the NYPD partnered with Microsoft to collect information from closed-circuit 300 Brayne surveillance cameras, ALPRs, radiation sensors, and other sensors to match with police databases (Joh 2014). Law enforcement employs advanced analytics, such as pattern-recognition algorithms, to detect threats in video footage, such as unattended bags (Ferguson 2017). Law enforcement supplements police data with data originally collected in external, nonenforcement contexts. Big data companies such as Acxiom, CoreLogic, and Datalogix are part of a multibillion-dollar data broker industry buying, aggregating, and selling arrest records, criminal records, warrants, property records, purchase behavior data, neighborhood data, and social media data (Ferguson 2017, Pasquale 2015). Private data brokers sell personal data to law enforcement (Ferguson 2017, p. 12), as do private companies such as pizza chains and contact lens companies (Brayne 2017). This means that a growing number of individuals with no police contact are included in police-accessed databases. Police in Fresno, for example, piloted a service called Beware that analyzes consumer information compiled by data brokers to provide ofﬁcers real-time red, yellow, and green threat scores for addresses and individuals. Investigations and Prosecutions Police use data proactively to predict crime and increase situational awareness, but they also use it in investigations and prosecutions (Patton et al. 2017). For example, an LAPD detective described an “automatic data grazing” system in the testing phases that seeks out similarities in cases that cross jurisdictional boundaries that one investigator would previously have likely missed due to jurisdictional data silos (Brayne 2017). According to a survey administered by the International Association of Chiefs of Police, more than 96% of police agencies use social media in some capacity (Int. Assoc. Chiefs Police 2015). Of all the evidence found in New York City indictment documents, 48% involves social media activity or communication (Lane & Ramirez 2016). Operation Crew Cut—the NYPD’s initiative tomonitorsuspectedgangmembers’socialmedia,insomecasesbeforeanycrimewascommitted— uses social media links and interactions to infer real-world relationships between individuals (Lane 2015, Lane & Ramirez 2016, Patton et al. 2017). That said, although some “social media policing” (Trottier 2012) involves big data analytics—such as mining Twitter data to detect gang activity— there remains considerable investigatory value in small data and manual searches. After an investigation, big data can be used for intelligence-driven prosecution. In the Manhattan District Attorney’s Ofﬁce, an experimental prosecution unit, the Crime Strategies Unit, builds cases on the “primary crime drivers” in a neighborhood (Ferguson 2017, p. 42). A “target tracker” on each individual populates the system with photos, criminal histories, and other personal information. The targets cannot be arrested on existing evidence, but if they are ever arrested, an alert automatically triggers a process whereby all prior data points on the individual are sent to the prosecutor’s ofﬁce so they can leverage more information at an earlier stage than they previously would have been able to, such as for enhanced bail applications and pretrial detention, additional charges, and harsher sentencing recommendations (Ferguson 2017). IMPLICATION
S FOR LAW Law cannot keep pace with the new technologies and data sources being introduced into police operations. A growing chorus of legal scholars suggest Fourth Amendment law is inadequate for governing police work in the age of big data. Open legal questions remain about the level of suspicion required for an individual’s data to be entered into police systems, whether the compilation of data points adds up to a traditional search, and how police discretion is informed by algorithmic predictions. www.annualreviews.org • Implications of Big Data 301 As illustrated by ALPRs and other dragnet surveillance tools that make possible everyday mass surveillance at an unprecedented scale, the threshold for inclusion in police databases is lower in the age of big data. The ongoing nature of license plate readings represents a proliferation of prewarrant surveillance. Rather than law enforcement starting to gather information on individuals only once they come under suspicion, “information is routinely accumulated and ﬁles are lying in wait” (Brayne 2017, p. 1000). Individuals’ daily lives, now codiﬁed as data, can be marshaled as evidence retroactively once they come under suspicion. The fact that once in a database a suspect can be repeatedly surveilled raises the question of whether new surveillance technologies such as ALPRs, which facilitate the constant analyzing and reanalyzing of data, should be treated as searches subject to the Fourth Amendment. Some legal scholars argue Fourth Amendment rights need to be entrenched. For example, Kerr (2011) describes a dynamic called equilibrium adjustment in which new limits are placed on police surveillance. Others argue that perhaps Fourth Amendment law is ill suited to govern police activity in the big data age. For example, Renan (2016) argues the traditional paradigm of Fourth Amendment law is transactional, focusing on the one-off interaction between law enforcement and a suspect. However, police surveillance in the digital age is increasingly programmatic. It involves ongoing, cumulative, and sometimes suspicionless data collection and use (Renan 2016). Renan (2016, p. 1058) suggests that administrative law may be a more appropriate legal framework for governing cumulative surveillance than criminal procedure. Similarly, Slobogin (2016) suggests that police agencies should be governed by the same administrative law principles as other government agencies. He argues that when police create policies aimed at largely innocent categories of actors (such as routinely collecting and using ALPR readings), they should be required to engage in notice-and-comment procedures to ensure public input and avoid arbitrary rules (p. 135). Currently, there is no federal legislation regulating ALPRs. Rules regulating the storage of ALPR data vary by state. For example, in California there is legislation creating a 60-day retention limit on ALPR data, unless the data are being used as evidence in a felony case. However, this legislation applies to only one law enforcement agency in the state: the California Highway Patrol. Law enforcement faces practical constraints when conducting surveillance. However, many of those limits are becoming less relevant in light of big data and new dragnet surveillance tools. Justice Alito’s concurring opinion in the Supreme Court’s decision in United States v. Jones, the case regarding the GPS tracking of a single suspect over 28 days, highlights this challenge. He writes, “The greatest protections of privacy [until now have been]...practical,” because “traditional surveillance for any extended period of time was difﬁcult and costly and therefore rarely undertaken” [see also Justice Sotomayor’s concurring opinion in United States v. Jones (2012)]. With dragnet surveillance tools, law enforcement can at any point build up a case against an individual, whereas they previously needed to meet suspicion requirements. Joh (2014) explains the logic behind the concern that long-term police surveillance of an individual, even in public, might constitute a Fourth Amendment search. She writes, “The premise here, sometimes referred to as the ‘mosaic theory,’ is that the danger to Fourth Amendment privacy lies in the aggregation of discrete bits of data, even if each piece standing alone would not be subjected to constitutional protections” (p. 60, emphasis added). For example, using predictive policing scores in conjunction with ALPR data and network diagrams may grant authorities a level of insight into an individual’s life that might constitute a search and thus require a warrant (Brayne 2017). Riley v. California, the landmark US Supreme Court case regarding the warrantless search and seizure of the digital contents of a cell phone during arrest, brings the legal challenges of technological advances into further relief. The Court unanimously held that the warrantless search and seizure of the digital contents of a cell phone during arrest is unconstitutional because smartphones 302 Brayne are qualitatively and quantitatively different than ﬂip phones or other objects in an individual’s pocket. In the opinion, Chief Justice Roberts writes, Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact
that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant. (p. 32) Function creep—the repurposing of data—is yet another issue not well addressed by the Fourth Amendment. The Fourth Amendment is primarily interested in the legitimacy of how information is acquired, not how it is repurposed. Joh (2014, p. 63) explains, “If the acquisition is permissible, how the police use that information thereafter is generally not subject to an additional Fourth Amendment challenge.” She suggests courts could shift the focus of the Fourth Amendment from data collection to its intended uses by the government (p. 64). Although particularly salient considering law enforcement’s increasing access to an unprecedentedly wide range of personal data, these are not entirely new concerns. Joh (2014) points out that more than 20 years ago, Krent (1995, p. 81) suggested that the government repurposing of information collected earlier could be deemed unreasonable, and that courts might consider whether “the original seizure...would have been reasonable had the additional governmental objective been known” initially. Existing privacy laws—such as the Privacy Act of 1974—are increasingly anachronistic. They largely concern custodians of the data, not the data themselves. Privacy laws now should account for function creep, protecting individuals from the potential future secondary uses of their data. Secondary uses of data thus undermine the current patchwork of federal privacy laws that govern the governmental collection of personal identiﬁable information and challenge conventional consent practices. Moreover, there are statutory exemptions enabling law enforcement to obtain certain data without a court order or subpoena (Ferguson 2017, Murphy 2013). In some circumstances, it is simply easier for law enforcement to buy privately collected data than to collect it directly themselves, because there are few constitutional protections, few reporting requirements, and fewer appellate checks on private sector surveillance and data collection (Pasquale 2015, p. 203). Relatedly, it may be necessary to revisit the third-party doctrine in light of new data-sharing practices made possible by the mass digitization of records. According to United States v. Miller and Smith v. Maryland, the third-party doctrine maintains that “when an individual voluntarily shares information with third parties, like telephone companies, banks, or even other individuals, the government can acquire that information from the third-party absent a warrant without violating the individual’s Fourth Amendment rights” (Exec. Off. Pres. 2014, p. 33). However, in her concurring opinion in Jones, Justice Sotomayor argues the third-party doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” This question is at the heart of Carpenter v. United States, the pending case before the US Supreme Court concerning the warrantless seizure and search of historical cell phone records that show the location and movements of a cell phone user. Questions of data collection aside, police use of data to determine suspicion also challenges the traditional paradigm of Fourth Amendment law. The reasonable suspicion requirement is predicated on speciﬁc and articulable observable facts about a suspect—in other words, small data. However, combining small data with big data—such as a predictive policing forecast—may make it easier for law enforcement to meet the reasonable suspicion standard in practice (Brayne www.annualreviews.org • Implications of Big Data 303 2017, p. 1000). The Supreme Court held that police observation in a “high crime area” can be a factor in deciding whether the ofﬁcer has reasonable suspicion or probable cause (Ferguson 2017, p. 76). The Court never deﬁned precisely what constitutes a high crime area, but it is reasonable to assume that the area inside a predictive policing box might qualify. Ferguson (2017, p. 77) writes, “If walking through a predicted red box changes my constitutional rights to be free from unreasonable searches and seizures, then a higher level of scrutiny might need to be brought to bear on the use of technology.” Similarly, what if an individual is identiﬁed as a chronic offender in Los Angeles or on the SSL in Chicago? That may provide the speciﬁc, individualized, and articulable facts needed to meet the reasonable suspicion standard. Indeed, the individual may be more likely to be involved in violence even if they have not done anything suspicious in that moment (Ferguson 2017, p. 56). Can a stop be “predicated on the aggregation of speciﬁc and individualized, but otherwise noncriminal, factors” (Ferguson 2015, p. 330), such as ALPR readings or a geocoded
ﬁeld interview card near the scene of a crime? Ferguson (2015, p. 336) argues that if the police use big data to reach the threshold of reasonable suspicion, the “courts should require a higher level of detail and correlation using the insights and capabilities of big data.” That is, if cases even make it to court. As Kohler-Hausmann (2018, p. 258) points out, Fourth Amendment jurisprudence is built on the premise that substantive rights against unlawful police stops, searches, and seizures are secured by the mechanism of excluding unlawfully seized evidence and arrests. [But] [t]he overwhelming amount of police work is low-level enforcement activity, not serious violent felony arrests, where the exclusion of necessary evidence would seem salient and professionally important. In other words, the opportunity to exclude inadmissible evidence rarely presents itself because law enforcement use of big data is only infrequently scrutinized in a trial context. Finally, the proliferation of prewarrant surveillance tools creates new opportunities for parallel construction: the process of law enforcement obtaining evidence through informants or warrantless surveillance, and then creating an alternative explanation for how the evidence was found. Ofﬁcer “[h]unches that would be insufﬁcient grounds for obtaining a warrant can be retroactively backed up using existing data and queries can be justiﬁed in hindsight after data conﬁrm ofﬁcer suspicions” (Brayne 2017, p. 1001). FUTURE DIRECTIONS Despite advances in law enforcement data collection and analysis, we know relatively little about whether the police have increased efﬁciency and improved fairness in their daily operations. Evidence on the efﬁcacy of predictive policing is mixed and depends on the type of predictive policing under evaluation (e.g., Mohler et al. 2015, Saunders et al. 2016), most violent and property crime clearance rates have remained ﬁxed (Braga et al. 2011), and homicide clearance rates have declined (Ridgeway 2018). Future research should build the evidence base on these issues to inform police policy and practice. However, social scientiﬁc research on law enforcement’s use of big data should not be limited to crime- and enforcement-related outcomes. A rich body of work demonstrates the social consequences of marking someone in the criminal justice system (Becker 1963, Brayne 2014, Harris et al. 2010, Kohler-Hausmann 2013, Manza & Uggen 2006, Pager 2007, Rios 2011, Western 2006, Western & Pettit 2005). Future research should explore whether and how the marking and subsequent sorting process has changed in light of big data. On the one hand, police use of big data may be a means of reducing bias, inefﬁciency, and inequality. On the other hand, it may facilitate police overreach and tech-wash 304 Brayne discriminatory practices as neutral or objective. Social scientists are particularly well situated to study the relationship between data collection, analysis, and deployment and individual, group, and organizational outcomes. Big data is being used at all stages of the criminal justice system, from policing to pretrial risk assessment, parole eligibility, and community supervision. Questions about how algorithmic decision-making practices may magnify or reduce cumulative disadvantage as individuals move through the system may yield important insights to scholars not just of the criminal justice system but also of stratiﬁcation, technology, and organizations more broadly. Challenges to studying the social determinants and consequences of algorithmic decision making in law enforcement include difﬁculty accessing law enforcement agencies and the fact that many of the big data tools police use are proprietary. However, companies such as HunchLab and PredPol have now published their algorithms, which is a ﬁrst step toward increasing transparency and opening previously private systems to scrutiny (Robinson 2018). Another potentially fruitful avenue for studying law enforcement’s use of big data may be to analyze technology procurement. For example, public information requests may yield information on contracts between law enforcement agencies and technology ﬁrms, thus shedding light on the transactional side of big data surveillance. Perhaps the most transformative feature of police use of big data is the opportunity these data provide to systematically analyze police practices. High-frequency observations and the proliferation of data-collection sensors associated with algorithmic policing are not only means by which more civilians come under police surveillance but also means by which police themselves come under increased surveillance (Brayne 2017). Aggregating data on past police actions may generate opportunities for oversight and make it possible to audit law enforcement practices (e.g., Goel et al. 2016, Hetey et al. 2016). However, accountability does not ﬂow automatically from transparency. Big data can help city ofﬁcials, academics, and the public understand police performance only if data on law enforcement activity are made
available to parties external to law enforcement. Finally, it is worth nothing that although some of the surveillance modalities made possible by big data are new, many of the questions about the relationship between technology and social structure are not. Questions raised here echo those from decades-old scholarship in science and technologystudies,forexample.Therefore,futureworkshouldfocusnotonlyonchangeassociated with big data but also on continuity. DISCLOSURE STATEMENT The author was employed as a postdoctoral research associate at Microsoft Research New England from July 2015 to June 2016. ACKNOWLEDGMENTS I thank Issa Kohler-Hausmann, Andrew Ferguson, Andrew Selbst, and the participants at the Big Data and Criminal Justice Round Table at the Ohio State University Moritz College of Law for their thoughts and feedback. All errors are my own. LITERATURE CITED Ajunwa I, Crawford K, Schultz J. 2017. Limitless worker surveillance. Calif. Law Rev. 105(3):735–76 Barocas S, Rosenblat A, boyd d, Gangadharan SP, Yu C. 2014. Data & civil rights: technology primer. Presented at Data & Civil Rights: Why “Big Data” Is a Civil Rights Issue, Washington, DC, Oct. 30. https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2536579 www.annualreviews.org • Implications of Big Data 305 Barocas S, Selbst A. 2016. Big data’s disparate impact. Calif. Law Rev. 104:671–732 Becker H. 1963. Outsiders: Studies in the Sociology of Deviance. New York: Free Press Beckett K, Nyrop K, Pﬁngst L, Bowen M. 2005. Drug use, drug possession arrests, and the question of race: lessons from Seattle. Soc. Probl. 52(3):419–41 Braga AA. 2003. Serious youth gun offenders and the epidemic of youth violence in Boston. J. Quant. Criminol. 19(1):33–54 Braga AA, Flynn EA, Kelling GL, Cole CM. 2011. Moving the Work of Criminal Investigators Towards Crime Control. Washington, DC: Natl. Inst. Justice Braga AA, Kennedy DM, Piehl AM, Waring EJ. 2001. Reducing Gun Violence: The Boston Gun Project’s Operation Ceaseﬁre. Washington, DC: Natl. Inst. Justice Braga AA, Weisburd DL. 2010. Policing Problem Places: Crime Hotspots and Effective Prevention. New York: Oxford Univ. Press Brantingham PJ, Brantingham PL, eds. 1981. Environmental Criminology. New York: Sage Brantingham PJ, Tita GE, Short MB, Reid SE. 2012. The ecology of gang territorial boundaries. Criminology 50(3):851–85 Brayne S. 2014. Surveillance and system avoidance: criminal justice contact and institutional attachment. Am. Sociol. Rev. 79(3):367–91 Brayne S. 2017. Big data surveillance: the case of policing. Am. Sociol. Rev. 82(5):977–1008 Brayne S, Rosenblat A, boyd d. 2015. Predictive policing. Presented at Data & Civil Rights: A New Era of Policing and Justice, Washington, DC, Oct. 27. http://www.datacivilrights.org/pubs/2015-1027/ Predictive_Policing.pdf Christin A. 2018. Counting clicks: quantiﬁcation and variation in web journalism in the United States and France. Am. J. Sociol. 123(5):1382–415 Cohen J, Tita G. 1999. Diffusion in homicide: exploring a general method for detecting spatial diffusion processes. J. Quant. Criminol. 15(4):451–93 Cook PJ, Laub JH. 2002. After the epidemic: recent trends in youth violence in the United States. Crime Justice 29:1–37 Daston L, Galison P. 2007. Objectivity. New York: Zone Books Desmond M, Papachristos AV, Kirk DS. 2016. Police violence and citizen crime reporting in the black community. Am. Sociol. Rev. 81(5):857–76 DiMaggio PJ, Powell WW. 1983. The iron cage revisited: institutional isomorphism and collective rationality in organizational ﬁelds. Am. Sociol. Rev. 48(2):147–60 Exec. Off. Pres. 2014. Big data: seizing opportunities, preserving values. Rep., White House, Washington, DC. https://ob
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, these mechanisms are directed primarily at addressing violations of civil and political rights, leaving aside broader considerations regarding inequality, poverty, and socioeconomic wrongs. Transitional justice risks weakening its objective if it fails to address the fundamental causes of conﬂict, such as inequality, land and resource redistribution, and socioeconomic violence (Brown et al. 2011, Gready 2010). The fact that new cycles of violence reemerged in countries that were once praised for their transitional justice processes, such as South Africa, Guatemala, and Peru, should give us pause to consider whether existing arrangements of transition are enough to achieve the goals of reconciliation and sustainable peace (Laplante 2008). A critique to the narrow approach to transitional justice had been gaining momentum since the early 2000s (Mamdani 2000, Mani 2002, Schmid & Nolan 2014). However, it was not until 2006 that a turning point for the mainstreaming of economic policy concerns in transitional justice came about (Duthie 2009). In that year, the UN High Commissioner for Human Rights, Louise Arbour (2007, p. 2), invited transitional justice scholars and practitioners “to make the signiﬁcant leap that would allow justice, in its full sense, to contribute as it should to societies in transition.” Such a leap meant applying a holistic interpretation of transitional justice to address the human rights violations that caused or contributed to the conﬂict, including violations of economic, social, and cultural rights. By 2009, the mainstreaming was complete: The main journal in the ﬁeld, the International Journal of Transitional Justice, and the International Center for Transitional Justice had each published an edited volume arguing for expanding the scope of transitional justice to engage with economic, social, and cultural rights; corruption; and other economic crimes (see De Greiff & Duthie 2009, Mani 2008). The shift, however, seems to have been short-lived. Despite these advances, the initial push for a more holistic approach to transitional justice seems to be declining, and even its own proponents seem to have become more cautious regarding the possibility for success of the project. This article describes the trajectory of the scholarly debate on expanding transitional justice to encompass socioeconomic concerns. It starts by exploring the marginalization of social and economic violence in transitional justice theory and practice through the three main lines of critique present in the literature. It then considers the rationale for the implementation of thicker or more holistic approaches to transitional justice. By doing so, it explains the principal nodes of intersection between transitional justice and socioeconomic wrongs that transitional justice scholarship has explored at large: ﬁrst, the expansion of the transitional justice toolbox to incorporate socioeconomic forms of violence; second, the relationship that exists between transitional justice and development; third, the inclusion of economic crimes and corruption in the theory and 1The notions of postconﬂict and transition are used interchangeably throughout this article to denote a situation where violence has been reduced, even if a change of regime or political order has not occurred. 398 Urue˜na· Prada-Uribe practice of transitional governance; and ﬁnally, the incorporation of transformative justice to the ﬁeld through the use of reparation programs. This article closes with a discussion of the main challenges and limitations these proposals face, as well as the more recent critiques that seek to put into question the whole project. It argues that thicker notions of transitional justice face two types of challenges: internal biases and external limits. Although the former have been more thoroughly discussed in transitional justice literature, the latter have not yet become an object of study in the ﬁeld. This article suggests that transitional justice scholarship and practice need to be aware of the external limits that international economic law, especially international investment protection, may impose on the implementation of transitional justice mechanisms when it collides with transnational economic interests. A LIMITED JUSTICE IN TRANSITIONAL JUSTICE: THREE LINES OF CRITIQUE The ﬁrst step toward a more holistic approach to transitional justice is the critique of the marginalization of social justice and development issues from the ﬁeld, put forward through speciﬁc global discourses and institutional arrangements within the transitional justice ﬁeld. In a contribution that reﬂects well this line of critique, Miller (2008) has argued that transitional justice historically failed to recognize the importance of structural violence, inequalities, and economic redistribution to conﬂicts, thus creating a distorted narrative that naturalizes the separation of conﬂict and economic issues. The prevailing view of transitional justice has understood socioeconomic and development matters as alien concerns to the ﬁeld. However, the problem with the separation approach is that, according to Miller (2008, p. 268), it allows a myth to be formed that the origins of conﬂict are political or ethnic rather than economic or resource based. It suggests that inequality is a question of time or development rather than the entrenched ideology of elites, as well as that
the need to memorialize the past does not require the narration of past economic oppression. Recent literature has put forward three possible explanations for the invisibility of social justice in transitional justice. The ﬁrst, and by far the most recurrent, points to the historical and normative roots of transitional justice. The second focuses on the relationship between this ﬁeld and the transnational project of liberal peacebuilding. The last one provides a critical perspective on the growing technocratic nature of transitional justice, which has turned this ﬁeld into an expert-dominated transnational arena. We now discuss each of these explanations. Uncovering Transitional Justice’s Legalism The marginalization of economic, social, and cultural rights in transitional justice is due, in part, to the latter ﬁeld’s narrow understanding of justice. As Arbour (2007, p. 4) has explained, transitional justice builds on a narrow conception of justice, circumscribing it “within a more traditional dispute resolution framework that primarily focuses on violations of civil and political rights.” There is, in this sense, a legalistic bias of transitional justice (McEvoy 2007, Nagy 2008, Oomen 2005) emerging from its two juridical foundations: international criminal law and human rights law. Transitional justice, this line of critique suggests, has prioritized criminal and retributive justice, thus neglecting socioeconomic and distributive issues. Beginning with the Nuremberg trials, transitional justice has foregrounded criminal law, individual responsibility, and individual reparations for individual violations—disregarding the socioeconomic conﬂicts from which such individual www.annualreviews.org • Transitional Justice and Economic Policy 399 actions emerged (Aguirre & Pietropaoli 2008, p. 376). In this context, the language of “victims” and “perpetrators” oversees structural causes of conﬂict and circumscribes the concept of justice to a traditional framework of dispute resolution that focuses on violations of civil and political rights (Arbour 2007, p. 4). Moreover, legalism in transitional justice conceals its political nature behind a generalized perception of neutrality, impartiality, and subjection to rules. This may legitimize some accounts of conﬂict while, at the same time, silencing others. Therefore, for this line of critique, transitional justice frames “the conﬂict in one dimension without providing an alternative vocabulary. Thus, apartheid in South Africa after the TRC [Truth and Reconciliation Commission] can become a story about racism or about speciﬁc, individual rights violations rather than about long-term, systemic abuses born of a colonial project with economic objectives” (Miller 2008, p. 280; see also Bond 2006). Transitional Justice and Peacebuilding as a Liberal Project Asecondbodyofliteraturecritiquestransitionaljusticeasaprojectrootedintheinternationalquest to promote liberal peacebuilding (Sharp 2014c), understood as a range of activities undertaken by transnational actors (especially international ﬁnancial institutions, intergovernmental organizations, nongovernmental organizations, and development agencies) to promote stability, democratization, and free market economies in postconﬂict societies (Lekha Sriram 2014, pp. 30–31). Transitional justice as a ﬁeld emerged, in its contemporary form, from the processes of transition from dictatorship to democracy that took place in both Latin America and the former communist countries. In this context, this line of critique asks whether the chosen goal of transition (democracy and market economy) in fact deﬁnes the kind of justice that transitional justice seeks. Would our understanding of transitional justice be different if a different frame were used? If the end is different (that is, if a transition to peace really is different from a transition to free market democracy), then the normative aims undergirding the transitional justice ﬁeld must be either replaced or complemented (Arthur 2009, pp. 358–60). Transitional justice thus prioritizes building speciﬁc institutional arrangements (such as democracy, constitutionalism, and the rule of law) and establishing a market-driven economy, while ignoring other possible arrangement that could also promote social justice and redistribution (Gready & Robins 2014, p. 341; see also Lekha Sriram 2007, Paris 1997). Furthermore, it has not only invariably linked transition with democratization but also promoted a particular and limited conception of democracy based on Western experience and ideology (Lundy & McGovern 2008, p. 274). To be sure, the point of this line of critique is not to say that democracy or the rule of law is not important or beneﬁcial, especially in the long term, for postconﬂict societies. Rather, the point is that liberal peacebuilding rests on the assumption that the best way to achieve peace is through liberal democracy and market-oriented economy (Paris 199
7, p. 56). Such a rapid move to a free market in states that are emerging from conﬂict, and have no previous experience with this type of economic model, may in fact have destabilizing consequences, especially in the case of highly divided societies (Lekha Sriram 2014, Mansﬁeld & Snyder 1995, Paris 1997). Moreover, transitional justice has been state centered and top down, promoting one-size-ﬁts-all solutions that favor certain interests while (many times) overlooking the wants and needs of the population (Lundy & McGovern 2008). Thus, for example, transitional justice and peacebuilding may have produced reductionist accounts of conﬂict in Africa (Ruiz-Gim´enez 2011), focusing on a narrative of failed states and greedy warlords, while ignoring the diversity within the region and the negative impact of external factors such as external debt, structural adjustment programs, and foreign aid (Brown et al. 2011). 400 Urue˜na· Prada-Uribe Transitional Justice as an Elite Project Finally, the ﬁeld of transitional justice has also been read as the undertaking of an elite group of international professionals, especially lawyers and donor-afﬁliated professionals, that may marginalize the impact of social, victims’, and other locally rooted movements (Gready & Robins 2014, p. 342; see also Madlingozi 2010, Robins 2009). The focus on technocratic arguments has contributed to the further depoliticization of the ﬁeld, while concealing its ideological origins. More problematic still, experts and technocrats in the ﬁeld may have been reproducing global arrangements for transitional justice mechanisms, transplanting the same institutions and structures from one country to another without taking into account differences and particularities.2 From this perspective, the technocratic side of transitional justice leads to the implementation of top-down solutions that regularly decontextualize violent pasts and individual subjects, creating a common historical account of conﬂicts and essentializing individuals as victims or perpetrators. Complex and multilayered causes of violence are thus left aside, while the complex (and sometimes conﬂicting) roles played by individuals in conﬂicts are sometimes simpliﬁed (Miller 2013). The critique of technocracy has led to calls to democratize, or at least to make more accessible, the creation and implementation of transitional justice to local populations (see the contributions in McEvoy & McGregor 2008). One proposal, for example, is the process of “reverse translation,” in which the vocabulary of experts is decoded and substituted with a vocabulary that is both accessible and politically contestable (Nesiah 2014). Another option is to question the assumption that foreign experts are always knowledgeable and politically neutral and more capable than local governments in the implementation of transitional justice mechanisms (McDougal 2014). NEW PROPOSALS TO EXPAND TRANSITIONAL JUSTICE In line with this critique, a growing body of literature is calling for a broader and more encompassing deﬁnition of the transitional justice ﬁeld—in particular concerning the relationship between conﬂict, socioeconomic violence, and transitions. Four nodes of intersection are important: (a) the inclusion of past socioeconomic violence as a fundamental concern of the transitional justice toolbox; (b) the role of development-related objectives in transitional justice; (c) the connection between economic crimes, corruption, and transitional governance; and (d ) the link between transformative justice and reparations. Broadening the Scope of Transitional Justice to Address Past Socioeconomic Wrongs Why address past socioeconomic wrongs in transitional justice? One argument is pragmatic: To guarantee long-lasting peace and stability in postconﬂict societies, transitional justice needs to address the underlying causes of the conﬂict, which in most developing countries include issues of poverty, inequality, and land redistribution (Lekha Sriram 2014, p. 37). If transitional justice leaves historical social and economic inequalities unaddressed, it cannot really provide guarantees of nonrepetition (Laplante 2008, p. 333)—a mindset accepted by the UN Secretary General, for whom “festering grievances based on violations of economic and social rights are increasingly recognized for their potential to spark violent conﬂict” (United Nations 2011). 2For example, Hayner (2002, p. 67) shows how the mandate of the truth commission in Burundi was very similar to the one in El Salvador, because they were drafted by a UN envoy who had previously served as part of the organization’s negotiation team in El Salvador. www.annualreviews.org • Transitional Justice and Economic Policy 401 Beyond this pragmatic reasoning, the ﬁeld’s legalism may also prevent past socioeconomic wrongs from being considered in transitional justice arrangements. The division between civil and political rights and economic, social, and cultural rights, inherited by
transitional justice from international human rights law, is artiﬁcial (Lekha Sriram 2014, p. 37). Not only are these rights indivisible and mutually dependent (Laplante 2007), but “violations of civil and political rights are intrinsically linked to violations of economic, social, and cultural rights” (Arbour 2007, p. 4). Thus, socioeconomic wrongs should be incorporated in transitional justice as a way to rectify the ﬁeld’s bias toward legalism. Another argument for including socioeconomic wrongs is redistributive justice. For those defending this line of reasoning, transitional justice mechanisms must consider three different dimensions: legal justice or the rule of law, rectiﬁcatory justice, and distributive justice (Mani 2002).Peacebuildinganddevelopmentprogramsfocusonlegaljustice,whereasrectiﬁcatoryjustice has been the core focus of transitional justice mechanisms. However, distributive justice remains neglected, or largely rhetorical. To include it, distributive justice constitutes both a backwardand a forward-looking response to the demand for rectiﬁcation of past injustice and inequities in distribution. It implies that transitional justice mechanisms must look further back, beyond the traditional concerns of rectiﬁcatory justice, and ﬁnd the actual causes underlying the conﬂict. Subsequently, distributive justice would be forward looking and address traditional priorities of distributive and social justice (Mani 2002, pp. 179–80). In a similar line, Kalmanovitz (2010) has argued that in cases of generalized destruction, if the justiﬁcation and normative foundations of transitional justice and human rights are put into question, rights and duties associated with social justice should take priority over corrective justice. Thus, in those speciﬁc cases, reconstruction efforts should focus on guaranteeing social minima, such as housing, health, and education, instead of compensating for past wrongs (Kalmanovitz 2010). Finally, empirical research suggests that victims question the ﬁeld’s sharp distinction between transitional justice and social and economic justice. Vinck & Pham (2008) conducted a survey in the eastern Democratic Republic of Congo on attitudes toward peace and justice and found that most victims and survivors prioritized meeting basic needs and achieving social justice and development over traditional concerns of transitional justice. Robins (2011), in turn, came to a similar conclusion through a survey in Kenya, according to which victims’ reparative demands were driven by basic economic needs, such as the need for housing and livelihoods. Addressing past socioeconomic wrongs in transitional justice can be practically challenging. A ﬁrst problem is that courts or truth commissions might not be able to investigate and provide remedies for all violations of social, economic, and cultural rights. For that reason, speciﬁc criteria must be developed to determine which violations should be addressed (Arbour 2007, p. 13). Moreover, it might be useful to expand the truth commissions’ mandate to analyze violations not only of civil and political rights but also of economic, social, and cultural rights (Laplante 2008, p. 333). Some truth commissions have already addressed issues of social and economic justice; for example, commissions in Peru, Kenya, Liberia, Sierra Leona, and East Timor have made some ﬁndings and recommendations on the violations of economic, social, and cultural rights (Duthie 2008; see also Sharp 2014b). However, in most of these cases, the commissions failed to order reparations to redress violations of those rights (Arbour 2007, p. 13). Transitional Justice and Development A second link between conﬂict, socioeconomic violence, and transitions is the role of developmentrelated objectives in transitional justice (Duthie 2008, Lenzen 2009, Lyons 2010, Mayer-Rieckh & Duthie 2009). The challenge, from this perspective, is to articulate the normative foundations of two different communities of practice: transitional justice and development (Lenzen 2009). 402 Urue˜na· Prada-Uribe Duthie (2008) proposes four ways in which transitional justice and development relate. First, at a broad level, both ﬁelds complement and reinforce each other in pursuit of shared long-term goals—especially goals directed at transforming society. Second, development may inadvertently affect transitional justice, because it determines the state’s capability and willingness to pursue justice. Third, transitional justice and development may be coordinated to reduce tensions and increase synergies. Duthie (2008) identiﬁes reparations, memorials, and restitution programs as mechanisms that may contribute to development. Finally, transitional justice and development may directly engage each other when the former addresses violations of socioeconomic wrongs and the root causes of conﬂict. Although it would be dif�
��cult to quantify the effect of these measures at the macro level, “by directly addressing development issues, transitional justice measures may play a role in drawing attention to such issues, in contributing to development, and in shaping development policies in such a way that they become more sensitive to the causes and consequences of past human rights abuses” (Duthie 2008, p. 302; see also De Greiff 2009). The practical challenges are again worth considering. Institutionally, truth commissions seem better suited to draw attention to the need to implement long-term transformative development policies (Ames Cobi´an & Re´ategui 2009). In terms of speciﬁc sectors, developmental initiatives focusing on natural resources and the security sector are pivotal. Regarding the former, recent research has shown that a key way to link transitional justice and development is to expand the former to encompass natural resources issues (Harwell & Le Billon 2009; on the link between transitional justice and natural resources, see generally Jensen & Lonergan 2012, Lujala & Rustad 2012, UN Environ. Progr. 2009). Moreover, development-focused security sector reforms can complement transitional justice by preventing the recurrence of violence (Mayer-Rieckh & Duthie 2009), and development initiatives focused on judicial reform and transitional justice can complement each other (Ndulo & Duthie 2009). The development ﬁeld, though, seems to be more reluctant to incorporate transitional justice concerns and mechanisms; some literature even suggests that transitional justice might be a waste of resources that should be allocated to development or other growth-enhancing programs (Boettke & Coyne 2007; Dancy & Wiebelhaus-Brahm 2015, p. 52). Even advocates of more holistic approaches of transitional justice recognize the dilemma faced by resource-limited societies when deciding how to allocate their budget between transitional justice and development programs (Gready 2010, Mani 2002). In this context, several years after his inﬂuential contribution, Duthie (2014) concludes that transitional justice’s most signiﬁcant impact on development will be indirect and long term. Economic Crimes and Corruption The third link between conﬂict, socioeconomic violence, and transitions is economic criminality. Conﬂicts often involve the violation of socioeconomic rights, which need to be dealt with by transitional mechanisms, for example, systematic discrimination in access to basic goods or services or forced evictions (Arbour 2007). In practice, some international and national courts have slowly started to deal with these kind of violations, if they rise to the level of war crimes or crimes against humanity [Prosecutor v. Kupreskic (2000), para. 628–31]. However, this approach seems too narrow, as it reproduces the mainstream mandate of transitional justice mechanisms, focusing on individual accountability and prosecution, and thus neglecting accountability for corruption and other economic crimes to ineffective domestic institutions (Carranza 2008, p. 311). Criminal law, both national and international, is likely to be less effective in addressing economic crimes than in addressing those that constitute violations of civil and political rights, because of the “overarching structural limitation” of the criminal justice system regarding socioeconomic crimes (De Greiff 2009, p. 40). www.annualreviews.org • Transitional Justice and Economic Policy 403 Corruption is also a crucial and oft-neglected concern in transitional justice mechanisms, particularly in postconﬂict situations where corrupt practices favor lack of accountability for atrocities (Carranza 2008, p. 315). Moreover, addressing corruption is crucial to rebuilding civic trust in public institutions as a whole, particularly after conﬂict (Robinson 2015, p. 35). Here, again, practical challenges to incorporate economic criminality and corruption in transitional justice abound. National and transnational economic elites may attempt to obstruct transitional justice processes that decide to address these issues (Andrieu 2012, Robinson 2015). For this reason, some scholars defend the separation between the mechanisms that prosecute human rights violations and those that deal with corruption (Andrieu 2012), asking whether transitional justice is the adequate forum to deal with corruption or whether that issue should be left to ordinary national and international justice. Nonetheless, truth commissions may be an effective mechanism to address corruption and economic violations within transitional justice (Cavallaro & Alubja 2008); for example, the Kenyan Truth, Justice and Reconciliation Commission and the Tunisian Truth and Dignity Commission have included an explicit mandate to address corruption (Robinson 2015). Transformative Justice and Reparations Reparations are one of the most promising tools with which to address socioeconomic issues within transitional justice, as they are more victim friendly and victim focused than trials or truth commissions and, therefore, are more able to integrate victims’ concerns and needs (SandovalVillalba
2017). Three links between development policies and reparations have been identiﬁed (De Greiff 2009, pp. 37–38). First, compensating victims of human rights violations through capital asset transfers can have an impact on their economic capacity, which in turn may provide a boost for development efforts in the country more broadly. Second, programs of property and land restitution serve development goals by clarifying property rights through the formalization of titles. Third, large-scale reparation programs and collective reparations have opened the door for the distribution of measures that go beyond monetary compensation, such as health and education. The efforts to bring transitional justice and socioeconomic concerns together through the use of reparation programs should be understood in light of the debate between promoting corrective and restorative or distributive justice in postconﬂict societies. This discussion has focused on reshaping the notion of reparations, which have sought to achieve restorative justice by returning the victims to their state prior to the conﬂict (Uprimny Yepes & Saffon 2009, pp. 31–32). Full reparations and corrective justice are not adequate to achieve the objectives of transitional justice in “disorganized” or “unequal and resource-limited” societies (Kalmanovitz 2010, Saffon & Uprimny Yepes 2010). Corrective or retributive justice is past oriented, as it assumes that any injured person has the right to reparation or compensation for their loss (Kalmanovitz 2010). The main objection to a mere corrective approach to reparations is that it cannot respond to the underlying practices of social injustice and marginalization that triggered violence to begin with. Furthermore, to restore a person to her preconﬂict state of poverty violates fundamental principles of justice (Attanasio & S´anchez 2012, p. 12). On the contrary, distributive justice is forward looking and seeks to conceptualize justice in terms of equality (Muvingi 2009, p. 166). In this line, transformative reparations become crucial. Reparations should look not to decontextualized acts of violence but rather to the structural underpinnings of harms (Gready & Robins 2014, Uprimny Yepes 2009). This should shift the emphasis of reparations from the restoration of the status quo (which in the case of unequal societies would mean returning poor victims to poverty and discrimination) to the transformation of victims’ circumstances as a form of addressing the injustices that drive conﬂict (Gready & Robins 2014, p. 347). 404 Urue˜na· Prada-Uribe In transitional practice, transformative reparations can be found in Colombia’s peace process with the Fuerzas Armadas Revolucionarias de Colombia (FARC). In both the 2011 Victims Law [L. 1448, 2011 (Colom.)] and the ﬁnal agreement between the Colombian Government and the FARC (Final Agreement for the Termination of Conﬂict and the Construction of a Stable and Lasting Peace, 2016, p. 182), the idea of transforming the structural conditions that led to victimization is present. Furthermore, the UN Guidance Note of the Secretary-General on Reparations for Conﬂict-Related Sexual Violence also incorporated as a guiding principle that “reparations should strive to be transformative, including in design, implementation and impact” (United Nations 2014). And in a ground-breaking decision [Gonz´alez et al. “Cotton Field” v. Mexico (2009), para. 450–51], the Inter-American Court of Human Rights recognized that Bearing in mind the context of structural discrimination in which the facts of this case occurred, which was acknowledged by the State...the reparations must be designed to change this situation, so that their effect is not only of restitution, but also of rectiﬁcation. In this regard, re-establishment of the same structural context of violence and discrimination is not acceptable. This expansion of reparations, though, has also been subject to some skepticism. If reparations are stretched to directly solve development problems or structural factors, the two separate obligations of transitional institutions—to provide reparations and to provide for social services—may be subsumed and become indistinguishable (P´erez Murcia 2013, Roht-Arriaza & Orlovski 2009). Even collective reparations, an important mechanism to incorporate social justice into transitional justice practice, may risk becoming indistinguishable from developing programs (Roht-Arriaza 2014). THE LIMITS OF A THICKER CONCEPTION OF TRANSITIONAL JUSTICE More than 10 years after Arbour’s call to expand transitional justice, the initial support may be fading away. More recent articles are being more cautious about the ability, or even the desirability, of transitional justice to
solve structural socioeconomic problems. The main concern seems to be where to draw the line between thicker conceptions of transitional justice and development or social policy. Where does transitional justice end and social justice and development begin? Activists and scholars seem to be trying to expand the scope of transitional justice while, at the same time, trying to avoid losing its raison d’ˆetre. Broadening the content of transitional justice presents a conceptual challenge to the normative foundations of transitional justice, because it risks overstretching it and diluting its core objectives (Robinson 2015, p. 34). Internal Biases Doubts of a thicker notion of transitional justice, though, have been raised since the beginning of this debate (Roht-Arriaza 2006, p. 2). Concerns regarding the feasibility of broader concepts of transitional justice have been echoed by other transitional justice scholars and practitioners (Drumbl 2009, Lambourne 2009). Even Mani (2008, p. 255), an early proponent of an expanded transitional justice, has acknowledged that the already existing mandates of transitional justice institutions are “overcharged, their responsibilities too heavy, public expectations too unrealistic and ﬁnance already too lean.” Practical difﬁculties are paramount in this context. Waldorf (2012) has argued that transitional justice mechanisms face enormous practical difﬁculties in incorporating socioeconomic concerns, as they are already overstretched and underfunded and have a timing problem: Whereas www.annualreviews.org • Transitional Justice and Economic Policy 405 transitional justice mechanisms are supposed to have a short life span, socioeconomic justice is a long-term political project. Furthermore, incorporating an economic dimension into transitional justice risks focusing a discussion of best practices in peacebuilding and development, thereby depoliticizing the question of wealth distribution. For this line of critique, “the exclusion of the economic from transitional justice is neither accidental nor in conﬂict with its aims. Rather it is central to transitional justice as a concept of political change” (Franzki & Olarte 2013, p. 204). A broader link between transitional and socioeconomic justice might reproduce the technocratic logic and biases that, in the ﬁrst place, caused this separation. Thus, even the most progressive forms of transitional justice—the ones that advocate for thicker conceptions—have failed to provide a credible emancipatory project, because they continue to present their claims as apolitical and to presume a consensus around transitional justice mechanisms as the most legitimate language in which to advocate for social change (Franzki & Olarte 2013, pp. 210, 217). International Limits? The integration of socioeconomic concerns in transitional justice also faces international limits, in particular, from international economic policy. Transitional justice literature has not explored the relationship between transitional justice and international economic law, especially investment protection regimes (Zriliˇc 2015). International investment protection is contained in international investment agreements, which can take the form of bilateral investment treaties or free-trade agreements, that establish the rules that govern investment and the rights of foreign investors and grant jurisdiction to arbitral tribunals over disputes between private investors and the host state. Nonetheless, investment arbitration is not just a form of international adjudication; it has become a powerful mechanism of global governance that affects local decisions in at least two ways. First, investment arbitration reviews domestic regulation for possible violations of standards contained in investment treaties, and second, investment arbitration tribunals contribute to the deﬁnition of standards of domestic governance (Urue˜na 2016a, pp. 102–3). Therefore, one issue in need of attention is how investment protection regimes can become part of the limits that international economic law imposes on the implementation of transitional justice mechanisms. Foreign investment is not, in itself, contrary to transitional justice. On the contrary, the capital brought by foreign funds is fundamental for the implementation of its increasingly large and complex institutional framework. However, the implementation of a thicker version of transitional justice may collide with transitional countries’ obligations toward foreign investors, which emerge from a complex legal framework of bilateral investment treaties and free-trade agreements (Urue˜na 2016a, pp. 199–201). Again, the Colombian Peace Process is a good example of this concern. The Peace Agreement integrated many redistributional justice concerns as part of its transitional justice framework, in an attempt to address the socioeconomic roots of the armed conﬂict, especially regarding land and agricultural policy (Huneeus & Urue˜na 2016, p. 164; see also Urue˜na 2016b). However, these redistributional policies may collide with foreign investment protections. For example, in 2008, AngloGold Ashanti was given a concession for gold mining in the territory of an indigenous Colombian community, the Ember´a, who had been victims of forced displacement owing to combat between the FARC and the Colombian military forces. Several years later, the Ember´a community
sought land restitution through existing transitional justice mechanisms, and AngloGold opposed the restitution before the Colombian judiciary and lost the case. This is the kind of dispute over foreign-directed investment that can be raised before international investment arbitration as a result of the protection awarded to investors under bilateral investment treaties (Urue˜na 2016b). 406 Urue˜na· Prada-Uribe CONCLUSION Transitional justice scholarship has seen important challenges in its relatively short life span (Balasco 2013, Teitel 2003). Most of those challenges have been catalyzed by dissatisfaction with the ﬁeld, which has led scholars to propose transformations in it. The latest of these challenges is the claim for broadening its scope to incorporate social justice– and development-related matters. And in just a few years, the possibility and adequacy of thicker or more holistic conceptions of transitional justice have become mainstream. Scholars have thus sought to understand the reasons leading to the exclusion of socioeconomic concerns and suggested different reasons and justiﬁcations for the expansion of transitional justice mechanisms. Nevertheless, this ﬁrst wave of acceptance seems to be fading, leading to more cautious and limited proposals of integration. Moreover, the expansion faces the limits that derive from transitional justice’s own internal biases, in terms of technocracy, depolitization, and North– South dynamics, and external limits in terms of international economic agreements that could hinder the ability of transitional institutions to engage in local transformations, if they affect transnational economic interests—such as foreign investor rights. The question remains whether more holistic approaches to transitional justice are practically and theoretically workable. From the practical point of view, it remains to be seen whether transitional countries are able to implement increasingly complex transitional justice arrangements that require not only more resources but also higher levels of expertise and institutional capability, without tearing apart the expectations generated by a broader promise of justice. From the theoretical point of view, scholars are still struggling to ﬁnd an adequate way to simultaneously expand the scope of transitional justice mechanisms and preserve its transitional or exceptional nature. This is not a small challenge: The more the scope of transitional justice is stretched, the blurrier the line between it and ordinary justice becomes. DISCLOSURE STATEMENT The authors are not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. 3The case was settled by the parties. www.annualreviews.org • Transitional Justice and Economic Policy 407 LITERATURE CITED Aguirre D, Pietropaoli I. 2008. Gender equality, development and transitional justice: the case of Nepal. Int. J. Transit. Justice 2(3):356–77 Ames Cobi´an R, Re´ategui F. 2009. Toward systemic social transformation: truth commissions and development. See De Greiff & Duthie 2009, pp. 142–69 Andrieu K. 2012. Dealing with a “new” grievance: Should anticorruption be part of the transitional justice agenda? J. Hum. Rights 11(4):537–57 Arbour L. 2007. Economic and social justice for societies in transition. N.Y. Univ. J. Int. Law Politics 40:1–27 Arthur P. 2009. How “transitions” reshaped human rights: a conceptual history of transitional justice. Hum. Rights Q. 31(2):321–67 Attanasio DL, S´anchez NC. 2012. Return within the bounds of the Pinheiro Principles: the Colombian land restitution experience. Wash. Univ. Glob. Stud. Law Rev. 11:1–53 Balasco LM. 2013. The transitions of transitional justice: mapping the waves from promise to practice. J. Hum. Rights 12(2):198–216 Bernardus Henricus Funnekotter v. Zimbabwe, ARB/05/6, Award (ICSID April 15, 2009) Boettke PJ, Coyne CJ. 2007. Political economy of forgiveness. Society 44(2):53–59 Bond P. 2006. Reconciliation and economic reaction: ﬂaws in South Africa’s elite transition. J. Int. Aff. 60:141–56 Brown G, Caumartin C, Langer A, Stewart F. 2011. Addressing horizontal inequalities in post-conﬂict reconstruction. In Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conﬂict, ed. G Or´e Aguilar, F G´omez Isa, pp. 11–30. Cambridge, UK: Intersentia Carranza R. 2008. Plunder and pain: Should transitional justice engage with corruption and economic crimes? Int. J. Transit. Justice 2(3):310–30 Cavallaro JL, Alubja
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of Law and Social Science Transitional JusticeAbstract This review outlines an emerging agenda for ethnographic interpretation of the rule of law. From a survey of studies done on the rule of law in Africa, Asia, Europe, and the Americas, the review identiﬁes four general characteristics of this mode of inquiry, namely, that it is located, relational, and comparative and has extrinsic value. It offers three nonexhaustive reasons for interpreting the rule of law ethnographically, which are as a counterhegemonic practice, inresponsetocounterintuitiveobservations,andasameanstodoconstitutive theorizing. Contending that ethnographic work on the rule of law involves some kind of stance toward both research subjects and object of inquiry, the review advocates for the exercise of passionate humility: a conviction about the rule of law tempered by willingness to be proven wrong through inquiries in critical proximity with socially and politically mediated facts. Rule-of-law ethnography’s possibility lies in its attending to the relationship between what is claimed in the rule of law’s name and what is realized, not to make the idea look foolish, but to show how it emerges and why it persists through struggle. 167 INTRODUCTION Rule-of-law ethnography does not yet exist. Ethnographies of rule do (e.g., Feldman 2008, Krupa & Nugent 2015). And ethnographies of law have been around for a long time, particularly in anthropology (see Pirie 2013) as well as increasingly in interdisciplinary research (see Anders 2015, Darian-Smith 2004, Starr & Goodale 2002). But ethnographies of the rule of law are a novelty. There is as yet no clearly delineated body of work with shared characteristics that might be called rule-of-law ethnography, let alone an established school of thought or community of practice going by this nomenclature. To write about rule-of-law ethnography as a kind of social scientiﬁc inquiry “that does not quite yet exist” (Soltan 2002, p. 357) is, then, to make a case for its possibility. This is to ask not what rule-of-law ethnography is but what it might be. It is also to imply that something preﬁguring it does exist, namely, an agenda for a different sort of inquiry into the rule of law than those adopted in the past. That agenda has emerged not by design but out of symmetries among independently conducted studies in Africa, Asia, Europe, and the Americas. What would it mean to do rule-of-law ethnography? Who might do it, and why? And what is this agenda for a new kind of ethnographically interpreted rule of law anyway? This review addresses these questions in an ad hoc post hoc way that Geertz (2001, p. 1) once characterized as how the larger agenda for interpretive social science itself came about: “First you do it, then you name it, then you try to determine what sort of ‘family resemblance,’ if any, holds it intelligibly together.” That is not exactly the same thing as saying that you make things up as you go along, but it does give pause to reﬂect on what has motivated disparate ethnographically informed studies of the rule of law, and to ask whether or not the sum of their parts might add up to something more. The next section of the review points to several trends in the academy so as to suggest why this agenda to interpret the rule of law ethnographically has emerged now. The subsequent section identiﬁes some characteristics common to studies that adopt an admixture of ethnographic methods and interpretive modes of inquiry into the rule of law, which are that they are located, relational, comparative, and oriented toward an extrinsic value. The section thereafter offers three nonexhaustive reasons for interpreting the rule of law ethnographically, namely, as a counterhegemonic practice, in response to counterintuitive observations, and as a means to do constitutive theorizing. The ﬁnal section addresses the question of whether or not an ethnographically informed, interpretive mode of inquiry into the rule of law requires the researcher to adopt a stance on the rule of law, and if so, how. This section recommends the exercise of passionate humility: a conviction tempered by willingness to be proven wrong through inquiries in critical proximity with socially and politically mediated facts. It concludes by suggesting that the task of rule-of-law ethnography, as a mode of social scientiﬁc inquiry that does not quite exist, might be to insist on the rule of law as an object of inquiry that itself does not quite exist. One of the review’s goals is to distinguish ethnographically informed research from other kinds of research on the rule of law. It aims to depict some general characteristics of this mode of inquiry and to offer some reasons to do it. Depiction is of course not deﬁnition. Given that rule-of-law ethnography does not yet exist, any
attempt to deﬁne it would be premature and, anyhow, is probably unnecessary. The possibility of rule-of-law ethnography is at this juncture better pursued by depicting it via illustrative case studies, themselves more or less ethnographic, more or less about the rule of law, than by attempting to deﬁne and police its borders. The review aims not to stamp out territory but to open it up: to encourage scholars who are already doing or thinking of doing empirical research on the rule of law to consider how adopting an interpretive mode and embracing an ethnographic sensibility (see Pader 2006, Schatz 2009a), or nurturing an ethnographic sense—for those concerned that sensibility connotes susceptibility (see McCargo 2017)—might make a difference to their ﬁndings. In sum, the purpose is to advocate 168 Cheesman for interpretive and ethnographically informed social scientiﬁc work on the rule of law, and to gesture toward one or more possible futures for grounded approaches to its study. THE RULE OF LAW AS STUDIED UP UNTIL NOW If the choice of whether or not to do ethnographic work on political phenomena like those associated with the rule of law hangs, as Schatz (2009b) recommends, not so much on the topic studied as on how the topic has been studied to date, then what might ethnographically informed work bring to the table of rule-of-law inquiry to supplement extant research in legal and political theory, political science, and economics (as discussed in Hadﬁeld & Weingast 2014, Haggard et al. 2008, Krygier 2016, Ohnesorge 2007)? From where has the impetus for ethnographically informed inquiry into the rule of law come? Why now? For one thing, the rule of law’s status today as “preeminent legitimating political ideal” (Tamanaha 2004, p. 4) has spurred the growth of studies that go beyond theory to examine its place “in the real world” (Gowder 2016). Comparative political scientists have taken on theorists’ questions about whether or not the rule of law has any necessary relationship with democracy (e.g., Helmke & Rosenbluth 2009). Others have asked questions about its relationship to public administration and economic development (e.g., Dressel 2014, Trubek 2006). Practitioners and scholars have discussed or critiqued global rule-of-law promotion (e.g., Carothers 2006, Humphreys 2010, Kleinfeld 2012). Still others have recounted the experiences of people in particular countries that have been subject to the rule-of-law industry’s interventions (e.g., Dinnen 2010, Mason 2011, Obarrio 2014). For another thing, trends in the academy have given a ﬁllip to research aimed at troubling “the rule-of-law orthodoxy” (Upham 2006) through close empirical inquiry. Work on the meanings and uses of law, and law in everyday life, is nothing new (see Sarat & Kearns 1995, Seron et al. 2013, Silbey 2005). But turns to ethnographic inquiry in law, international relations, political science, and sociology (see Auyero 2006, Baiocchi & Connor 2008, Brodkin 2017, Lie 2013, Wedeen 2010), together with the return of empiricism to legal scholarship (see Suchman & Mertz 2010), have breathed new life into old concerns with the study of law in action, not least of all in lawand-society scholarship (see Abel 2010). The rise of New Legal Realism especially has renewed interest in critical but constructive inquiries into the power of law from the ground up, and in the ways and means of translating between law and the human or social sciences (see Dagan & Kreitner 2018, Klug & Merry 2016, Mertz et al. 2016). Nevertheless, much empirical work on the rule of law speciﬁcally still tends to be “reconstructive” (Schaffer 2016). It piles up data against authoritative deﬁnitions and classic lists of desiderata (e.g., Fuller 1969, Raz 1979), so as to add or subtract elements. It reproduces problematic indicators (see Davis 2014, Merry et al. 2015) and other “legibility devices” (MacLean 2013, adapting Scott 1998) with which to organize knowledge for the convenience of the researcher or policy maker. Notions of the rule of law that are not consonant with those deﬁnitions or lists or indicators are set aside. Meanings of the rule of law articulated by people in places studied are mostly elided. Critical
responses to the rule-of-law orthodoxy have followed similar logics, albeit on the way to different goals. Among them, too, the rule of law tends to be cast as a stable, hegemonic representation of a European or Anglo-American political ideal. In that role it plays the part of a villain or fraudster: a form of “new imperialism” (Brooks 2003) or plunder (Mattei & Nader 2008), a fantasy (Chanock 1985), hallucination (Guha 1997), or fetish (Comaroff & Comaroff 2006). These portrayals are not necessarily inapt. The rule of law does have a hegemonic dimension. It might be understood as fantasy, hallucination, or fetish. But there is always more going on than dismissals of it as criminality or fantasy suggest. By virtue of both its paradoxes and its sheer www.annualreviews.org • Rule-of-Law Ethnography 169 persistence, the rule of law deserves close, critical, and protracted inquiry into the many diverse practices in its name, as well as into the ideas that animate them. Enter interpretive social science. Marked in general by a concern with how the social world is constructed, with language and its uses, with categories and their meanings, and with tracking how ideas are constituted through human relations (Wedeen 2004, 2010), interpretive social science has made new inroads into studies of politics, law, and society (see Bevir & Rhodes 2016, Reed 2011, Schwartz-Shea & Yanow 2012). Scholars who adopt an interpretive view of the rule of law do so because of a special concern for how knowledge is historically constructed and entangled in power relations. They are interested in the relationship between what is claimed in its name and what is realized, not to make the idea look foolish but to denaturalize it—to keep it situated. They oppose reconstructive modes of working with the idea, which tend to ignore the distinctive cultural and historical contents that inhere to it. They recognize that the very idea that the rule of law has universal signiﬁcance is itself contingent. This recognition is a cause not for dismay but for celebration: not of the idea of the rule of law itself but of the fact of its many and varied strands, of its multitudinous origins and emergences. Consequently, for interpretivists any attempt to grapple with the rule of law’s universal signiﬁcance depends on its rhetorical and contextual translation. Where not translated, the only possibility for a universalizing idea like the rule of law to cross over linguistic and cultural borders “is through a colonial and expansionist logic” (Butler 2000, p. 35). That is why interpretivists carry no yardsticks to measure the rule of law’s success, nor banners to unfurl and declare the mission accomplished. The “conﬂicting visions” of the rule of law (Munger 2015) that they encounter are not inconveniences to be ironed out with a better deﬁnition, or reconciled through a longer list of desiderata, or clariﬁed through more ﬁnely crafted indicators. They are opportunities to understand more deeply how the ideas and activities that purport to fall under its rubric are shaped by contests over meaning. To work interpretively on the rule of law is, then, to concentrate on the struggle over ideas; to try to fathom their signiﬁcance as “claimed, used, protected, and fought over” (Ewick & Silbey 1998, p. 21); and to elucidate their meanings through close, critical study of practices that allude to them (see Schaffer 2016). That the rule of law is shot through with a variety of conﬂicting meanings, which sometimes have contradictory consequences (see Haggard et al. 2008), is for interpretivists manifest. The point is not that it is so, but how it is so, and with what deeper signiﬁcance. Take the literature on authoritarian legality. Many noninterpretive studies of law and politics in dictatorial or authoritarian settings share with interpretive ones a concern for how particular actors interact. They commonly delve into speciﬁc cases, generating rich data with which to build theory (see Curley et al. 2018, Moustafa 2014). However, they differ from their interpretivist counterparts in leaning toward accounts of how regimes deploy law and courts strategically for particular ends: to manage relations between different levels of government, generate popular support, and take advantage of social cleavages (Gallagher 2017); to sideline regime opponents, bolster the prevailing order’s claims to legitimacy, control administrative personnel and bureaus, maintain elite cohesion, facilitate trade and investment, and implement unpopular or controversial policies (see Moustafa 2007
, Moustafa & Ginsburg 2008). Interpretivists do not neglect questions of institutional function or strategy, but they do not privilege them either (e.g., Eckert et al. 2012). An interpretivist studying the rule of law through inquiry into an authoritarian setting not only observes how participants interact but also has special regard for how language is used, and for the materiality of speech and action (see Yanow 2003), so as to explain what is happening with reference to the meanings that participants themselves attach to what they and others do. The work is reconstructive of neither authoritative deﬁnitions nor regime typologies but is concerned with “what institutions, actions, images, utterances, events, 170 Cheesman customs...mean to those whose institutions, actions, customs, and so on they are” (Geertz 1993, p. 22), and with what consequences for the rule-of-law idea. Rajah’s (2012) study of Singapore is illustrative. Loitering in the histories of statutes that contain what she characterizes as a “covert ‘rule by law’” (p. 17), Rajah observes concealed logics of the authoritarian state. Formal law operates through these logics to reconcile the state’s anti-rule-oflaw practices with rule-of-law values that it claims to uphold. Rajah recognizes that in renovating a colonial-era version of the rule of law, the Singapore state successfully “negotiates international acceptability alongside high levels of state control” (p. 6). But rather than simply treat the state’s legalistic pursuit and destruction of any potentially autonomous domain for independent activity as an outcome of regime type, she tracks these logics through text to uncover a “subterranean strand of rule of law discourse” (Rajah 2017, p. 371) in which the state relates to its subjects in the manner of a parent to an unruly child. The latent function of the authoritarian rule-of-law project in Singapore, she ﬁnds, is out of necessity to colonize, subordinate, and infantilize its citizenry. One of the reasons that Rajah’s study is compelling is that her writing is imbued with an ethnographic quality that comes not only from reading her source materials but also from dwelling in them to observe and document their political meanings, and meaning makers. This quality marks out her work from many others on the rule of law in authoritarian settings, and goes to the agenda with which this review is concerned. INTERPRETING THE RULE OF LAW ETHNOGRAPHICALLY What does it mean to interpret the rule of law ethnographically? How might an ethnographic sensibility be combined with interpretive modes of inquiry for study of the rule of law? Scheppele’s (2004, pp. 390–91) account of “constitutional ethnography” offers some convenient starting points from which to work in the direction of a plausible answer: Constitutional ethnography does not ask about the big correlations between the speciﬁcs of constitutional design and the effectiveness of speciﬁc institutions but instead looks to the logics of particular contexts as a way of illuminating complex interrelationships among political, legal, historical, social, economic, and cultural elements.... While any one speciﬁc constitutional setting has distinctive and ungeneralizable features, each constitutional context also has logics that link various speciﬁc features found in the particular case into patterns whose traces may also be visible elsewhere with different speciﬁc manifestations. Similarly, incipient rule-of-law ethnography might be understood as not asking about the big correlations between the speciﬁcs of institutional design and the effectiveness of speciﬁc rule-oflaw interventions but instead looking to the logics of particular contexts—and so on. It would not be distinguished by any single unique or necessary characteristic. Rather, it would entail several characteristics that it would have more or less in common with other modes of inquiry, namely, that it be located, relational, and comparative and have extrinsic value. These characteristics it would combine with a special regard for the rule of law as object of ethnographic inquiry, which is not to talk of it as an actual object or crudely objectiﬁed idea but as a conceptual construct mediating how data are generated and interpreted (see Willis 1980). An ethnographically informed inquiry into the rule of law entails certain methodological commitments to where and how the rule-of-law idea is located physically and temporally in or in relation to observable activities and entities. Some of these commitments go without saying. They include a commitment to immerse oneself for an extended, intensive period in the place or places that the inquiry is located, and to work in close proximity to the people and things studied (see www.annualreviews.org • Rule-of-Law Ethnography 171 Schatz 2009a, Schwartz-Shea & Majic 2017). There is more to it than simply going somewhere to obtain
“a contextualized understanding of the rule of law” (Grenfell 2013, p. 271). Nor is it just a matter of staying a bit longer, writing more notes, or doing more interviews to make the ﬁndings “more ethnographic” (Wolcott 1990). More context, time, or notes might be useful, but not necessarily. How the scholar dwells in proximity with people and things in a certain place or among certain sources so as to track and ascertain meanings inhabiting them is what matters. These meanings can inform interpretive research on the theory and practice of the rule of law—as in Rajah’s work on Singapore. Ethnographically informed work on the rule of law is acutely conscious of time and place. It is time conscious (see Moore 2005), not only because it is concerned with tracking changing political and legal relations over the life of a research project but also because it is attentive to how people’s ideas about the rule of law might have them imagine and thereby try to shape possible futures. It is place conscious insofar as, unlike formal institutional ethnographies, an ethnographically sensitive study of the rule of law has no predetermined site, like an apex or military court (e.g., Hajjar 2005, Lokaneeta 2017), the archives of a defunct state agency (e.g., Markovits 2010, Verdery 2014), or police stations and patrols (e.g., Fassin 2013, Jauregui 2016). All of these sites might recommend themselves, but a service center for migrants (Newendorp 2011) or a transnational advocacy organization (Rajah 2014) might too. Whatever the site, the researcher is interested in locating and following the rule-of-law idea or some other idea with which it is related through observable arrangements of meaning that change over time. Ethnographically informed researchers tend to pose questions at boundaries (Clifford 1986, p. 2), both of the research site and of the topic. From these boundaries, through repeated parochial sightings of their object of inquiry they aim for “a more spatially and conceptually dispersed picture” (Das & Poole 2004, p. 6) of what is happening and why. But sightings of this sort are as much a matter of posture as they are of where the work is conducted. Parochial sightings can, as a matter of research method, be made from just about anywhere. Latour (2010) did not go to a marginal or out-of-the-way place to research law ethnographically. Yet, his study of France’s peak administrative court is full of parochial sightings of pieces of artwork, signatures on ﬁles, gestures in hearings, and the contents of ﬁling cabinets. Latour did not march around the tribunal’s palatial corridors in search of where law was made. He loitered on incongruous details, so as to present the court in a totally different light from the nonethnographer, ultimately so as to compare the manner and materiality of legal knowledge claims with those of their scientiﬁc counterparts. Although ethnographically informed research on the rule of law is sometimes written in and from the margins or peripheries of where it is located, as well as from the boundaries of established modes of inquiry, its ﬁndings need not be marginal or peripheral. Parochial sightings can reveal a great deal about law and society more generally. Take Erie’s (2016) study of how sharia is imbricated with state power in China. As Erie (2016, p. 350) himself observes, his research concerned “not a fringe question about minorities in one corner” of the country but one that resonates with larger questions about the role of the party in the making of “rule of law with Chinese characteristics” (Peerenboom 2002, p. xiv). By examining how party, state, and law relate not through structures and practices at the center of these institutions but through ethnographic research among a minority community on the margins of the state, he rewards the reader with uncommon insights into the normative bases of an outwardly secular formal legal order that is in part predicated on local understandings of nonstate law and on the informal authority of religious and community leaders. Ethnographic interpretation of the rule of law is relational, insofar as conceptually it cannot be isolated from its others. It cannot be considered except as it relates to alternative concepts (see Taylor 1979), including those that might be opposed to it (see Cheesman 2014, 2015, 2017). But 172 Cheesman whereas the noninterpretivist might relate the rule of law to other concepts along a scale of identical units of measurement, with its opposite at the other pole, as in the customary reconstruction of the rule of law against the rule of men—or rule of persons—the interpretivist seeks
its “constitutive outside” or antagonistic exterior (Henry Staten, in Mouffe 2005, p. 15) by relating it to other concepts that give it substantive identity. The rule of law’s relation to other concepts can be theorized in a variety of ways. Chalmers (2015, 2016) appropriates a constellational approach to conceptualize its relations to other concepts through ﬁeldwork in Liberia. Rather than go to his “object of study directly and try to lay hold of it with the most adequate conceptual schema possible,” he comes at it “through an arrangement that encircles the object from its points of difference” (Chalmers 2016, p. 183). In doing so, Chalmers conﬁgures scenes of the rule of law in Liberia as contradictory. He adapts from my own work the notion that law and order and the rule of law are not bedfellows, but as a matter of principle stand asymmetrically opposed to one another (Cheesman 2014). He ﬁnds that the rule of law’s insistence on a monopoly of force is contradicted by peace-building schemes for law and order, which are concerned with maintaining an orderly populace through threat of violence. By attending to the rule of law’s constitutive outside in places like Myanmar and Liberia, the researcher shifts the problem from the usual questions about the rule of law’s absence to questions of how the presence or presences of other ideas and practices shape it and institutions that refer to it. Studies of the rule of law from its constitutive outside present new opportunities for comparative inquiry. These opportunities push against impulses to relativize ﬁndings—to treat countries like Liberia and Myanmar as atypical—and toward possibilities for comparison. However, the ethnographically informed researcher does not oversimplify for the sake of comparing something or somewhere with something or somewhere else. Instead, the goal is to tend to work toward difﬁculty, impeding “the too-rapid leap to understanding or easy identiﬁcation on the part of the reader” (Steedly 2013, p. 69). This is not to insinuate that the “person trying to simplify things is a bit less sophisticated a thinker than the person pointing out that things are more complicated” (Healy 2017, p. 123); it is merely to recognize that nuance is a comparative advantage of ethnographic work. Through nuanced comparison the rule of law’s signiﬁcance is revealed, and beliefs about its inherent normativity interrogated. Some ethnographically informed research on the rule of law is explicitly comparative. In his study of history, law, and politics in Sudan, Massoud (2013) adopts a method that enables him to scaffold ethnographic ﬁndings for the purposes of generating hypotheses about the part that law plays in high-conﬂict states. But even if not structured, as in Massoud’s work, to explain similarities and differences between cases systematically, or to control for theoretically relevant variations (see Sallaz 2008, Simmons & Smith 2017), ethnographic interpretation of the rule of law still insists on the possibility for comparison. Where not explicitly comparative, ethnographic inquiry into the rule of law might be said to have an appositional quality. Although the rule of law acts as a “coordinating conjunction” (Kazanjian 2016, p. 9), it relates ﬁndings from one time and place to another without assigning objectively identiﬁable, stable elements with which to compare each speciﬁc case. It resists the idea that these elements exist. Instead, implicitly comparable ﬁndings emerge out of inquiry in which facts stand out because they contrast with the researcher’s prior experience or differ from what the researcher expected based on awareness of other situations. Lastly, ethnographic interpretation of the rule of law has, with its constitutional counterpart, a regard for its extrinsic value. It aims to generate a particular type of epistemic knowledge about political life (see Schatz 2007). It does not adopt ethnographic methods purely for their own sake. Like researchers for whom ethnography is the end in itself, the researcher working in an ethnographic mode but with an extrinsic goal or goals still aims, as Strathern has put it, to “generate more www.annualreviews.org • Rule-of-Law Ethnography 173 data than the researcher is aware of at the time of collection” (in McGranahan 2014, p. 24). But the extrinsic value–oriented researcher departs from Malinowski’s (1922, p. 11) classic imperative to generate data on “the full extent of the phenomena...studied, making no difference between what is commonplace, or drab, or ordinary and what strikes him as astonishing and out-of-the way.” Instead, heedfulness of how a particular ideal or concept is realized and fought over
guides inquiry. This manner of working distinguishes ethnographic work on the rule of law from ethnographies that invite questions about it, but that do not raise or address these questions explicitly—such as some noteworthy studies of policed, predominantly poor, black communities in the United States (e.g., Goffman 2014, Stuart 2016). That is not to say that an ethnographer might not arrive at questions about the rule of law from work at their research site, without having any prior interest in the idea. But in that case the extension of ethnography to the idea will depend on empirical observation and theoretical reﬂection, not on preliminary design. Newendorp’s (2008, 2011) study of a social service center for immigrants to Hong Kong from mainland China is an instance of this latter mode of inquiry. Newendorp encountered a deep ambivalence toward the rule of law among the immigrants at the center that demanded scrutiny. Despite doubts about what the rule of law means in Hong Kong, and sometimes perplexity about whose interests it serves, she found that immigrants stake their claims on it. In so doing they challenge “the pessimistic view that locates [law’s] violence in postcolonies as just another form of the oppression experienced under colonial rule” (Newendorp 2011, p. 108). The rule of law’s ambivalent presence in the service center speaks to Butler’s (2000, p. 33) remark, drawing on the work of Scott (2009), that “there is no possibility of extricating the universal claim from the particular.” This impossibility is what makes the possibility of rule-oflaw ethnography fascinating. Ethnographic work on the rule of law dwells in an “unresolvable tension between universality and particularity” (Laclau & Mouffe 2014, p. xiii), attending to the universal in the particular—whether the cramped ofﬁces of a service center in Hong Kong or the palatial corridors of a state tribunal in France—constantly revisiting its claims to universality by attending to its particularity. Whereas Newendorp encountered the rule-of-law idea while practicing her ethnographic vocation, scholars with an interest in the rule of law who come to ethnographic inquiry via other routes tend to have it in the foreground of their inquiries from the beginning. Schatz (2007, p. 12, emphasis in original) warns that a risk in doing work in this way, with an eye to an extrinsic value, is that if ethnographic inquiry is no longer for its own sake but is merely one method among others directed to some external goal, then it is “reduced from being both an end-goal (production of insider meanings) and a process (person-to-person contact) to simply the latter.” Research subjects can become ﬂattened out: rendered as mere founts of information with which to test outcomes on the researcher’s variables. The warning is well made, but the researcher who remains attentive to the epistemological bases of contemporary ethnographic work as an interpretive mode of inquiry (see Wedeen 2009) can avoid this risk. Even though ethnographic inquiry oriented toward interrogating the idea and practices of the rule of law departs somewhat from ethnographic work that is done for its own sake, it remains true to the latter’s spirit in that it does much more than just seek out research subjects with which to generate data and test hypotheses. The interpretivist neither ignores internal meanings and perspectives when pursuing epistemic knowledge of external value nor occludes other meanings and perspectives relevant to the inquiry. To be sure, theoretical gains are necessarily limited. They cannot be decontextualized, to produce generalizations of the sort that are favored in political science, for instance (see Schatz 2007). But that is exactly the point of doing extrinsically valuable interpretive ethnographic work on the rule of law: to insist that ultimately all theorizing about universals is contextual. The goal 174 Cheesman of such inquiry is to rethink the universal by provincializing it (see Cheesman 2017). Inquiry of this sort not merely calls into question existing epistemic knowledge but generates “contingent generalizations” (George & Bennett 2005, p. 31) by putting the rule of law in its place, which is to say, in some place. THE DIFFERENCE ETHNOGRAPHY MIGHT MAKE What difference would ethnographic inquiry make to our understanding of the rule of law? Why might a scholar of comparative politics or historical sociology or law and development, for instance, choose to interpret the rule of law ethnographically? What could an ethnographic sensibility add to work in law’s archive (see Mawani 2012), or in process tracing across a single case study (see George & Bennett 2005, chapter 10), or when comparing data generated across a small number of cases (see Simmons & Smith 2017)? This section
offers three nonexhaustive reasons for researchers already doing empirical research on the rule of law to take ethnographic turns, so as to query, reinterpret, or amplify their ﬁndings. They are as a counterhegemonic practice, in response to surprising or counterintuitive observations, and as a means to do constitutive theorizing. Applauding the propensity in law-and-society scholarship to push back against “hegemonic doctrinalism” and toward “historically disadvantaged groups, critical and postmodern perspectives, and nonpositivistic research agendas” (Suchman & Mertz 2010, p. 568), Darian-Smith (2013, pp.4–5)hascalledformore,strongercounterhegemonicresearchontheplaceoflawinourpolitical and social lives. Her call is at once an appeal to counter doctrinal and parochial scholarship on law in the US academy and also to critique the use of law to naturalize arrangements of power that by iterating dominant values aim at giving an appearance of compliance among the affected populace. The rule of law is an outstanding object of inquiry for this sort of counterhegemonic work. The reasons are twofold. Precisely because the rule of law has become an “international hurrah term” (Krygier 2011, p. 64), so “heavily represented, narrated, and made mythic by the conventions” (Marcus 1998, p. 197) of the orthodox literature, it demands counterhegemonic inquiry. Additionally, by elucidating the rule of law through counterhegemonic work the researcher can encourage the development of new vocabulary. This entails challenging rather than reproducing classical dichotomies (see Mbembe 1992) by upsetting received ideas about how the rule of law relates to its constitutive others—such as that it is a bedfellow of law and order, rather than its antagonist. Interpretivists characteristically raise questions about the signiﬁcance of asserting a singular, hegemonic conception of the rule of law over its heterogeneous others. Whose interests are served by it? How? Some ethnographically informed scholars raise explicitly counterhegemonic questions along these lines. Redding (2014, p. 944) challenges the disparagement of nonstate Islamic tribunals by rule-of-law secularists, arguing that in India these venues can work in ways “that are highly evocative of the rule of law ideology’s idealization of state courts and how they (should) operate procedurally.” Redding reveals that contrary to secularists’ dim view of Islamic venues for resolving disputes, many of their procedures are symmetrical with their state counterparts and broadly consistent with rule-of-law principles. Although his project is deliberately counterhegemonic, he demonstrates how ethnographically informed inquiry into the rule of law takes the researcher beyond shallow criticism to deeper awareness of the idea and the practices that ordinarily are associated with it. Rajah pursues a different kind of counterhegemonic agenda in extending her research from a critique of Singapore’s high rankings in global rule-of-law indices to a critique of the knowledge claims of the index makers themselves. She concentrates on the World Justice Project (2016, p. 8), which describes its Rule of Law Index 2016 R⃝as “a quantitative measurement tool that offers a comprehensive picture of the rule of law in practice.” Combining critical discourse analysis www.annualreviews.org • Rule-of-Law Ethnography 175 with ethnographic research practices, Rajah (2014) shows that although the World Justice Project makes universalizing claims seemingly in dialogue with stakeholders, its activities are characterized by carefully circumscribed debate. It solicits advice from people at a handful of elite institutions. The ethnographic character of her work, like Latour’s in the corridors of France’s administrative court, casts an altogether different light on the project from noninterpretive studies. Even where critical of the indices’ designs, measurement strategies, and conceptualizations of the rule of law, noninterpretivists tend to remain broadly within the indices’ epistemological boundaries (e.g., Møller & Skaaning 2011, Versteeg & Ginsburg 2017). Rajah’s work sits deliberately outside them. Counterhegemonic work on the rule of law also involves counterintuitive ﬁndings, which go against accepted wisdom about what the rule of law is and why it might or might not matter to people in a particular place. Counterintuitive ﬁndings are sometimes anticipated, sometimes not. Massoud (2013) already had some idea of what he would ﬁnd in Sudan before he went to do his research, and he could be fairly conﬁdent that a book on law there would not be “‘a very short one,’” (p. 1) as one lawyer with whom he spoke early on predicted. Against the intuition of league tables that rank Sudan as one the world
’s failed states, and one in which we might expect law to matter very little, Massoud tells a story of a place where law is lived experience, and the rule of law part of the legal imaginary. Other counterintuitive ﬁndings emerge out of the ethnographic encounter. Dwelling in the archival records of British-administered Sudan and Egypt, Sachs (2010, 2013) ﬁnds that the imperial state in North Africa practiced a kind of “strategic ambiguity.” Whereas much of the literature on colonial rule of law emphasizes administrators’ concerns with standardized, calculable, and predictable legal order, his work reveals an archipelago of self-produced anomalous spaces. In these, empire could conceal or obscure people, activities, and conﬂicts of which it preferred to remain ignorant. Counterintuitively, strategic ambiguity enabled the colonial project for legal hegemony by disguising, transmuting, and rearranging power in ways that were politically expedient for the colonizers as well as for certain segments of the colonized elite. A limitation of counterintuitive work on the rule of law is that it does not in itself generate deﬁnitive ﬁndings. What it does do is provide tentative answers to research questions by shedding some light onto confounding situations. The researcher working counterintuitively moves not from hypothesis to necessary explanation but from incongruity to plausibility. Plausible explanations matter. They play an important role in how we innovate conceptually, as I found in my own inquiries. Working with Burmese colleagues on criminal cases in Myanmar during the early 2000s, I was struck by the frequency with which juridical records invoked the rule of law. That public propaganda iterated a military junta’s concern for the rule of law was one thing. It could be dismissed as the “fraudulent misappropriation” of a good name (Krygier 2006, p. 138). But charge sheets, typewritten judgments, and citizens’ letters of grievance circulating through courthouses, government departments, and police stations habitually had recourse to the idea too, or at least to some idea that the term represented. It had some part or parts to play, raising questions that cried out for answers, but what? From one or more moments of puzzlement I devised a plausible counterintuitive explanation: Although lexically present, semantically the rule of law had been subsumed to law and order. The latter, I argued, is not among the rule of law’s component parts. Despite how international agencies and others in the rule-of-law delivery game would have it (see Farrall 2007, Sannerholm 2012), law and order, I observed, is the rule of law’s asymmetrical opposite. By juxtaposing the rule of law with law and order and asking how the identity of the one might be understood as forming out of constitutive antipathy with the other, practices in Myanmar’s courts that had at ﬁrst seemed confounding became sensible. A plausible, theoretically oriented explanation then became possible. 176 Cheesman Of course, all ethnographic work is on some level theoretically informed (see Nader 2011, Willis & Trondman 2002). But like its constitutional counterpart, rule-of-law ethnography would have a particular ambition for constitutive theorizing. This type of theorizing does not begin with an established theory, which is applied to a case study, or with protracted ﬁeldwork unaccompanied by theoretical reﬂection. Research proceeds cautiously, working toward theory from extended observation. The researcher is suspicious of hasty conjectures and preconceived models. As Wedeen (2010, p. 264) has put it, someone working in this mode constantly tacks “back and forth (to use Geertz’s metaphor) between the theoretical and the empirical, the abstract and the concrete” such that theory emerges out of generated data, and data are generated by theory. Theory and data have an “iterative-recursive relationship” (Schwartz-Shea & Yanow 2012, p. 33). Data generating and theorizing are synchronic, not diachronic. Some social scientists have labeled this manner of theorizing out of particulars as descriptive inference: “the process of understanding an unobserved phenomenon on the basis of a set of observations” (King et al. 1994, p. 55). Descriptive inference is cast as the poor cousin of causal inference. Against this reading, ethnographic work on the rule of law engages in a distinctive form of constitutive theorizing. This form is less in the tradition of critical legal scholarship (see Hunt 1993) and more in the manner that Wendt (1998) once characterized it, as a form of theorizing that is concerned with explaining how a phenomenon is (or is not) possible, with coming to terms with how “ideas constitute social situations and the meaning of
material forces.” In general, constitutive theorizing comes not from testing hypotheses to establish causal relationships with which to predict outcomes but from a desire to articulate what constitutes a social or political idea, to better comprehend it. Because it asks how ideas and practices relate in speciﬁc settings, it tolerates a certain “kind of conceptual murkiness” (Ewick & Silbey 1998, p. 20) that noninterpretive modes of inquiry are disinclined to accommodate or are unwilling to admit to. But to say that it tolerates conceptual murkiness is neither an argument nor an apology for a lack of clarity. Making concepts clearer remains the goal. However, constitutive theorizing in this mode resists the arrogant idea that the researcher, working by whatever light is available, is really able to develop concepts that can fully illuminate their research subjects. Theorizing of this sort out of ethnographic work on the rule of law in particular requires that the researcher take the “philosophical self-assertions” (Goodale 2009, p. 36) of the ethnographic object of inquiry seriously. It requires asking how the idea might be elucidated through dialogue with people in contingent circumstances. Are claims to the rule of law by Sudanese lawyers or Chinese migrants basically performative, or do they, as Butler (2000, p. 38) asks, “presuppose a broader, more fundamental notion of universality”? Do they theorize the rule of law in ways that might challenge orthodox interpretations? If so, how? These are the kinds of conceptual or ideational problems that ethnographic inquiry seeks to address, and through which constitutive theorizing is made possible, and necessary. If constitutive theorizing diminishes the authority of reiﬁed deﬁnitions and dusty desiderata, then it vitalizes the rule-of-law ideal for our time (see Massoud 2016). It does this by working out of a multiplicity of historical sites and intellectual legacies with which the rule of law is associated, but not so often described and theorized—peripheral settler colonies, postcolonies, and places with non-European rule-of-law traditions (e.g., Benton 2002, Manderson 2012, Ocko & Gilmartin 2009). This type of theorizing appreciates that in its “travel across difference” (Tsing 2005, p. 16) the rule of law is charged and changed by what it encounters (see also Faier & Rofel 2014). It falls under new ownership wherever it goes. As Lev (1978) showed of Indonesia, “the rule of law,” or more speciﬁcally, Rechtsstaat (as differentiated in Barber 2003, Krygier 2015, Meierhenrich 2018), might have been a continental European idea, but rendered negara hukum, it became an Indonesian one. Negara hukum did not become politically salient because it was a ﬁgment of www.annualreviews.org • Rule-of-Law Ethnography 177 the “imagination of jurists” (Maravall & Przeworski 2003, p. 1) but through its encounters with difference in a Southeast Asian archipelago. The attentiveness that the researcher brings to these encounters, as well as to what makes the object of inquiry universally signiﬁcant, politically salient, and theoretically troubling, gives ethnographic work on the rule of law traction. ON ADOPTING A STANCE WITH PASSIONATE HUMILITY Evidently, ethnographic interpretation of the rule of law, like other ethnographic inquiry, requires certain methodological commitments to the research site and its occupants, as well as to the practice of intensive, immersive, proximate inquiry. But what about commitments to the rule of law itself? Does the ethnographic researcher have to have a stance on the idea of the rule of law? What about a position on principles of political and legal equality that inhere to it (see Cheesman 2015, Gowder 2016), or on values that are invoked in its name, such as that power ought to be institutionally tempered (Krygier 2017), or human rights protected (e.g., Ellmann 2016)? Although the ethnographic researcher takes seriously Kahn’s advice (in Darian-Smith 2013, p. 19) to “study the rule of law outside the practice of law” to expose the structure of beliefs, of ideas, and of meaning making inherent in its practice, this is not to pretend to be a disinterested observer. Some kind of a stance on the idea of the rule of law itself is unavoidable. This stance is determined by the researcher’s experiences and prior values, as it is by the particularities of the site where the research is done and the values of people there (see Emerson et al.
1995, Herzfeld 2001). That being so, the ethnographic researcher of the rule of law would do well to exercise what Yanow (2009) calls “passionate humility,” namely, a passionate conviction that comes with taking a stance, tempered by willingness, even enthusiasm, to be proven wrong through research in “critical proximity” (Weizman & Manfredi 2013, p. 172) with socially and politically mediated facts about the rule of law. In other words, a stance involves or presupposes beliefs, training, and prior experiences but is further informed by empirical inquiry as the research continues (see Emerson et al. 1995). It calls for certain commitments but remains open to alternatives. Inhabiting somewhere in “the gray area between complete acceptance of the ‘rule of law’ as panacea, and complete rejection of formal law as a possible solution to some problems” (Mertz 2002, p. 369), the passionately humble advocate for ethnographically informed inquiry into the rule of law enters into a cautious but engaged dialogue with research subjects and with the idea of the rule of law itself. The goal is neither to reconcile false dichotomies nor to bridge ﬁssures in the rule of law through which the research traverses, but to traverse them more adroitly, to communicate about them more skillfully. Borneman’s (1997) study of justice in postsocialist Europe demonstrates how the researcher might take a stance on the rule of law for the purposes of ethnographic inquiry. Having started out thinking “it presumptuous to assume that the discredited socialist states needed the rule of law to reestablish their legitimacy” (Borneman 1997, p. ix), by the end of his work Borneman became convinced that certain principles of accountability inherent to the rule of law make it essential to democratic legitimacy. That is, he took a stance, which he adjusted in response to his ﬁndings. From particular concerns with the manner in which the rule of law was invoked in Eastern Europe in the 1990s, he goes on to arrive at a general ﬁnding that the rule of law is intrinsic to democratic practice. Democratic governments lay claims to represent their political communities through its principles of accountability. Pushing back against cultural relativist readings of legal regimes, Borneman (1997, p. x) calls for “an encounter between the empirical detail of how the principles of the rule of law work in speciﬁc places and what their claims are to universal validity.” In short, he calls for rule-of-law ethnography. 178 Cheesman So a stance is not a ﬁxed position. It is not the posture of a zealot or ideologue. Ethnographic inquiry is for neither “rule-of-law evangelists” (William Neukom, cited in Rajah 2014, p. 340) nor their unremitting opponents. If you already know what the rule of law is and your problem is how to deliver it to the inhabitants of countries that do not measure up to whatever criteria you have produced to know it when you see it, then you have some other research design. If you are certain that the rule of law is just a neo-imperial cover-up to “enable the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage” (Horwitz 1977, p. 566), then rule-of-law ethnography would not likely be the thing for you either. We might agree with Weber (1978, p. 75) that because “the most radical doubt is the father of knowledge,” an anarchist, who would deny the validity of law, could be a good legal scholar. But the anarchist is no more likely to be a good ethnographer of the rule of law than the evangelist. The passionate conviction of the anarchist or the evangelist that their adopted position is the right one would lack humility of the sort necessary to interpret the rule of law ethnographically. For anyone else doing empirical work on the rule of law in political science, sociology, anthropology, or law, or across disciplines in the social or human sciences and the humanities, study of the rule of law with an ethnographic sensibility and passionate humility can at the very least increase possibilities to supplement research ﬁndings. But taken seriously, ethnographic interpretation of the rule of law is more than just a useful add-on to the researcher’s preferred methods. It is more than just a way of addressing “the imbalance between desk research and ﬁeld research” (Meierhenrich 2018, p. 244) in work on the rule of law generally, or on its ostensibly authoritarian variants especially. It is a way of troubling both the rule-of-law ideal and dominant modes of studying it, by challenging established schemas, prejudices, and explanations for how and why the rule of law is researched and represented in particular ways. So is there a future for rule-of-law ethnography after all
? Paradoxically, rule-of-law ethnography’s possibility as a mode of social scientiﬁc inquiry that does not quite yet exist would seem to lie in showing how the rule of law itself does not quite yet exist—and that it could not be otherwise. The rule of law is everywhere “constituted in struggle and lost as soon as it is regarded as a fait accompli” (McBride 2016, p. 44). The ethnographer’s basic task is not to try to resolve that struggle but to refuse this possibility. To insist on its resolution would be to deny the very possibility of the rule of law. The task, then, is to interpret the struggle that constitutes the rule of law so as to think it anew again. For every instantiation of the rule of law through struggle, an ethnographically informed story remains to be told. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS This review is the product of two consecutive panels on rule-of-law ethnography at the 2016 and 2017 annual meetings of the Law and Society Association in New Orleans and Mexico City, respectively. Jothie Rajah proposed and named the panels. But for her this review would not exist. Jinee Lokaneeta, Mark Massoud, and Jeff Sachs enthusiastically got involved. The panel discussants Tamir Moustafa and Martin Krygier gave invaluable advice. The review improved thanks to many other patient readers and interlocutors, including Didier Fassin, Terry Halliday, Mikaela Luttrell-Rowland, Tomas Martin, Beth Mertz, Frank Munger, Nick Rush Smith, and Dvora Yanow. Lee Ann Fujii read and commented on a draft with characteristic gusto and wit. www.annualreviews.org • Rule-of-Law Ethnography 179 She is sorely missed. Shane Chalmers and Rebecca Monson read and discussed a draft along with other colleagues at a 2017 workshop on “Troubling (the) Rule of Law,” funded by the Research School of Asia and the Paciﬁc, Australian National University. The review was written at the Institute for Advanced Study, Princeton, during the 2016–2017 school year and revised in 2017 during a visiting fellowship at the American Bar Foundation, Chicago. LITERATURE CITED Abel RL. 2010. Law and society: project and practice. Annu. Rev. Law Soc. Sci. 6:1–23 Anders G. 2015. Law at its limits: interdisciplinarity between law and anthropology. J. Leg. Plur. Unoff. Law 47:411–22 Auyero J. 2006. Introductory note to politics under the microscope: special issue on political ethnography I. Qual. Sociol. 29:257–59 Baiocchi G, Connor BT. 2008. The ethnos in the polis: political ethnography as a mode of inquiry. Sociol. Compass 2:139–55 Barber NW. 2003. The Rechtsstaat and the rule of law. U. Tor. Law J. 53:443–54 Benton LA. 2002. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge, UK: Cambridge Univ. Press Bevir M, Rhodes R, eds. 2016. Routledge Handbook of Interpretive Political Science. London/New York: Routledge Borneman J. 1997. Settling Accounts: Violence, Justice, and Accountability in Postsocialist Europe. Princeton, NJ: Princeton Univ. Press Brodkin EZ. 2017. The ethnographic turn in political science: reﬂections on the state of the art. Political Sci. Politics 50:131–34 Brooks R. 2003. The new imperialism: violence, norms, and the “rule of law.” Mich. Law Rev. 101:2275–340 Butler J. 2000. Restaging the universal: hegemony and the limits of formalism. In Contingency, Hegemony, Universality: Contemporary Dialogues on the Left, ed. J Butler, E Laclau, S ˇZiˇzek, pp. 11–43. London/New York: Verso Carothers T, ed. 2006. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, DC: Carnegie Endow. Int. Peace Chalmers S. 2015. Law’s imaginary life on the ground: scenes of the rule of law in Liberia. Law Lit. 27:179–98 Chalmers S. 2016. Law’s rule: Liberia and the rule of law. PhD Thesis, Aust. Nat
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a race is funded in part by undisclosed spending, voters receive only a partial picture of campaign ﬁnance from viewing public disclosures. The partial picture can potentially distort voters’ predictions about candidate performance in ofﬁce. And when that spending is both undisclosed and coordinated with campaigns, corruption concerns emerge. Although the theoretical scope of the costs and beneﬁts of disclosure is broad, the literature is more narrowly focused, following the court’s thin jurisprudence in the area. Studies of information beneﬁts to voters and chilling effects on donors exist, but we know much less about how beneﬁts (or costs) to one can be costs (or beneﬁts) to another (Gilbert 2013). Similarly, we know little about disclosure’s information beneﬁts to candidates and donors, anticorruption beneﬁts (and costs) to the public, enforcement beneﬁts, and compliance costs. Most research on campaign ﬁnance disclosure fails to take into account cognitive limitations of the information recipient. Finally, we should learn from other scholars’ work on voluntary disclosure, because candidates have incentives to disclose small donors, even if they are below the contribution threshold. Voluntary disclosure may help candidates. UNDERSTANDING CAMPAIGN FINANCE DISCLOSURE IS KEY TO UNDERSTANDING AMERICAN CAMPAIGN FINANCE REGULATION Campaign ﬁnance regulations exist on a spectrum of regulatory burden. Some jurisdictions have strong regulations, featuring either public ﬁnancing or low limits on campaign contributions and spending in private ﬁnancing regimes, aggressive disclosure requirements, and robust enforcement mechanisms. Others have lower regulatory burdens with few limits and bans and require only limited disclosure. On the spectrum of regulatory heavy-handedness, a disclosure-only regime would be the lightest regulatory touch. Private ﬁnancing regimes featuring limits on contributions, spending, or both exist in most of the world. The American system of campaign ﬁnance regulation for federal elections is somewhere between a private ﬁnancing regime and a disclosure-only regime. Direct corporate and union contributions to federally registered political committees are still banned, as is foreign spending in connection with elections. Direct contributions to these committees from individuals are subject to limits, but campaign and outside spending are unlimited. Disclosure requirements are not a 12 Wood complete backstop on our otherwise weak regulatory regime, however. The regulatory framework for disclosure features loopholes and exemptions that leave a good deal of campaign ﬁnancing both unlimited and undisclosed. Although activists and legislators have tried nearly constantly since Citizens United v. FEC (2010) to close loopholes on disclosure-free corporate spending (so-called dark money) and disclaimer- and disclosure-free online advertising, they have not succeeded at the federal level and have experienced only partial success at the state and local level. The recent spate of paid advertising and paid promotion of so-called fake news on social media leading up to and during the 2016 election lends new urgency to the issue (Wood et al. 2018). However, turnover on the Supreme Court matters. Recently, Justice Scalia, who generally approved of campaign ﬁnance disclosure, was replaced by Justice Gorsuch, who is more skeptical of disclosure. The result may be less, rather than more, disclosure in the coming years. Understanding disclosure is crucial to understanding American campaigning. Campaign ﬁnance disclosure usually refers to two activities: disclosure and disclaimers. The aims and timing of disclosures and disclaimers differ enough that they should affect voter opinion, and perhaps voter, group, and candidate behavior, differently. Campaign ﬁnance disclosure is conducted via reporting obligations, with periodic deadlines that increase in frequency as the election approaches. Committees report contributions and expenditures. The reports are ﬁled and housed with the campaign ﬁnance regulators, who release the data to the public. The data are then summarized and presented to the public—usually in a piecemeal fashion—by information intermediaries like the media, political opponents, and campaign ﬁnance watchdog groups (Malbin & Koch 2016). For voters, the experience of learning about who funds candidates (or ballot initiatives) is usually separate from the experience of hearing messaging about the candidate or initiative. A voter might read about the candidate’s funding before or after viewing an ad, or not at all. Most groups who receive or spend above a regulatory minimum must register with the campaign ﬁnance regulator (such as the FEC for federal races). With the notable exception of so-called dark money groups, registered groups must disclose to the regulator. Dark money groups are social welfare organizations organized under Section 501(c) of the tax code. They can support issues and candidates—as long as there is no coordination between the campaign and the group—by running ads or engaging in other traditional political activity. They are not required to report the sources of their funds to the FEC.1 Because contributions “in the name of another” are prohibited, creating a limited liability corporation (LLC) or 501(c) organization for
the sole purpose of evading disclosure is technically also prohibited. However, enforcement of this provision is rare and so delayed that multimillion-dollar political spenders may approach the resulting ﬁnes as a cost of doing business. Campaign ﬁnance disclaimers are the “stand by your ad” requirements that appear with political messages. They identify the entity that paid for the ad. Disclaimers have the feature of appearing immediately with the message, though in the video context, they have the disadvantage of being displayed only very brieﬂy. The information contained in disclaimers may be received— and forgotten—long before the voter is ready to make her decision. Some reformers propose that disclaimers should contain more disclosure-like information, and some states, such as California and Massachusetts, have adopted rules incorporating a list of the top contributors into disclaimers. 1They do have to report the source of funding for “electioneering communications,” which are ads in support of or against a candidate that air within 30 days of a primary or 60 days of a general election. In the 2016 election cycle, that meant that most 501(c)(4)s that had been running ads fell silent in early September, 60 days before the election. Dark money comprised 42.5% of all outside group advertising spending until the reporting window opened for the 2016 presidential elections (Wesleyan Media Proj. 2016). www.annualreviews.org • Campaign Finance Disclosure 13 EXPERIMENTS To properly design studies and interpret results, scholars must understand the existing legal framework and the ways that sophisticated players can game it. Political donors can choose among several contribution vehicles, and the decision has implications for disclosure. They can give directly to the campaign or to groups that legally coordinate with the campaign (like political parties and traditional political action committees, or PACs). Such direct contributions are subject to individual contribution limits (e.g., $2,700 to a federal candidate in a general election) and to disclosure requirements. Another vehicle available to donors is to support outside groups that cannot coordinate with campaigns and, depending on the type of outside group, may enable donors to evade the disclosure of their identity. If a group makes only IEs (like a SuperPAC), or if it is organized as a corporation, such as a 501(c)4 “social welfare” organization or LLC, then the dominant understanding is that the group can receive unlimited donations in support of its outside spending (cf. Alschuler et al. 2018). The courts justify unlimited IEs as speech that is protected by the First Amendment and is made independently of campaigns. The court assumes that the outside groups do not coordinate with the campaigns to make IEs. However, the regulations prohibiting coordination are easily circumvented. Coordination is the ﬁrst regulatory loophole that scholars must understand. The other two areas scholars must understand are related to donor selection into a level of visibility: dark money and online advertising. When donors choose to give to an outside group, they select their disclosure regime. If they give to a SuperPAC, their donation is disclosed. If they give to a corporation, their donation will not be disclosed outside of narrowly deﬁned circumstances. The groups not subject to mandatory donor disclosure are called dark money groups. The lack of enforcement and lack of regulatory clarity for online ad disclaimers have created another disclosure-related choice for political messaging. Most paid advertising run on Facebook in the ﬁnal six weeks of the 2016 election was run without disclaimers, and over 75% of paid Facebook ads were run by groups that were not registered with the FEC (and thus did not disclose) (Kim et al. 2018). In the rest of this section, I explain the basic jurisprudential framework, coordination, dark money, and online disclaimers. The court’s disclosure jurisprudence is based on a thin and incomplete theory of disclosure’s costs and beneﬁts. The Buckley v. Valeo (1976) court assumes that “[c]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment” (p. 64), and it predicted that “contributors of relatively small amounts” are likely to be “especially sensitive” (p. 83). The Buckley court is more loquacious when it comes to disclosure’s beneﬁts. First is the so-called informational beneﬁt, in which the information revealed in disclosures improves voter competence by “allow[ing] voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches” and “alert[ing] the voter to the interests to which a candidate is most likely to be responsive,” all of which the court thinks will help the voter make “predictions of future performance in ofﬁce” (p. 67). The court also assumes that disclosure “deter[s] actual corruption and avoid[s

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