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to policy-relevant knowledge within that domain or issue-area” (Haas 1992, p. 3). Haas suggests that such a community is united by a shared set of normative beliefs; shared causal beliefs, which provide the basis for identifying courses of action that will lead to desired outcomes; common criteria for adjudicating knowledge claims within the ﬁeld; and a set of common practices conceived as responses to particular problems. Dezalay & Garth (2012d, pp. 4–5) warn that the concept can assume more of a consensus than is warranted, leading us to overlook competition among professionals and experts. If we keep this point in mind, however, it can help identify groups with common outlooks that may exert inﬂuence. With respect to transnational governance in particular, Shaffer (2012, p. 254) argues that epistemic communities serve as “[i]ntermediaries... the carriers, conduits, and points of entry for the circulation of transnational legal norms... They help to diagnose national situations, monitor national developments and responses, and translate, adapt and appropriate global norms for local contexts.” Lawyers thus may be members of at least two epistemic communities. One is a general community constituted by common training and intensive socialization into a particular mode 144 Regan of analysis and discourse. The other is a community united by shared expertise with respect to particular technical knowledge (Van Waarden & Drahos 2002). Even as they participate in their second communities, lawyers likely bring a distinctive perspective to the analysis and diagnosis of problems based on their especially strong preference for the use of law and legal principles as mechanisms to order social life. The use of law as an ordering mechanism may have particular appeal in a transnational realm that lacks a single recognized political authority and conventional institutions, procedures, and modes of regularizing behavior that serve as a basis for legitimacy on the national level. This set of conditions creates considerable uncertainty about sources of authority, appropriate recipients of trust, and how to harmonize various potentially competing interests. Such ﬂuidity creates opportunities for a range of actors to acquire de facto authority if they can convince others of their legitimacy in creating conditions that stabilize expectations. As Luhmann (2014) has observed, this is an essential function of law. This suggests that lawyers may be in a position to play an especially important role in helping construct transnational regimes that enhance the predictability that furthers globalization. Antoine Vauchez’s (2012, 2015) analysis of the role of lawyers in constructing the European Union illustrates this point. As he notes, “the historical permanence of its ‘names’ and symbols (e.g., rights, laws, courts) only makes us perceive it as a reassuring backdrop or as some sort of institution unchanged in its forms and equal in its effects” (Vauchez 2012, p. 221). Vauchez (2012, p. 220) argues that the efforts of lawyers in various roles and ﬁelds have operated to place law “at the crossroads of European construction, a critical position in a political system deprived of a state capable of organising stable relationships and hierarchies between groups and institutions.” Lawyers therefore may seem to be natural actors to play a leading role in constructing ﬁelds of transnational governance that seek to reduce impediments to cross-border operations by creating legal systems that are independent of local interests. In doing so, they are able to invoke traditional liberal legal principles, such as predictability, uniform treatment of similar activities, and protection of property interests against arbitrary invasion. Lawyers also are likely to be inﬂuential in transnational governance initiatives because those who represent multinational companies in many instances have helped these clients exploit differences in national regulation to enhance their ﬁnancial returns. Through such activity, these lawyers have acquired an in-depth knowledge of the patchwork of national laws that potentially affect businesses that operate across borders. One aspect of this knowledge is awareness of how local customs and practices affect the way that the law on the books is applied. This gives lawyers a sophisticated understanding of precisely how laws across countries differ in practice, as well as their actual effects on transnational companies. Such understanding is an important source of professional capital that can enable lawyers to deﬁne the problem that diverse regulations create in any given ﬁeld, and to prescribe responses to address it. Halliday & Osinsky’s (2006) identiﬁcation of a discursive dimension to globalization also suggests that lawyers may be in a position to exercise inﬂuence in transnational governance efforts. They argue that globalization has both structural and discursive elements. The former are material changes, such as increased ﬂows of people, goods, services, and capital, along with responses to these events by institutions on the local, national, and international levels. Discursive changes reﬂect revisions in the meanings attached to these structural developments. The extent to which
a particular domain can be regarded as globalized is a function of the degree to which its structural changes are regarded as legitimate instances of universal rational principles. Discursive strategies that can frame structural changes in these terms thus help further globalization in a given domain. An emphasis on such strategies is consistent with Braithwaite & Drahos’s (2000) suggestion that globalization can be understood as “a contest of principles” that bestows symbolic meaning www.annualreviews.org • Transnational Governance Regimes 145 on material events. They argue that transnational governance regimes usually emerge in the form of a set of principles, because creating a new regime by focusing on more speciﬁc rules usually is very difﬁcult. Principles thus serve as the instruments that actors use in seeking legitimacy for their proposals, a crucial requirement in polycentric regulatory arenas (Black 2008, Halliday et al. 2010). To the extent that potential structural increases in the ﬂow of goods and services require congruence with certain discursive representations, globalization thus is an arena of argumentation rather than simply a set of material processes. The discursive task requires describing and justifying structural changes as functional and legitimate in accordance with general principles that transcend national and local interests. This is an especially salient task with respect to the establishment of transnational governance regimes that limit national and local authority. Lawyers are trained to engage in a public reason-giving process that aims to present private client interests as consistent with more universal principles. As Picciotto (2011, Kindle ed., preface) observes, lawyers “work at the interface of the public and private in mediating social action and conﬂict,” and “their techniques and practices of formulating and interpreting concepts and norms which are inherently malleable and indeterminate provide the ﬂexibility to manage these complex interactions.” One particularly potent discursive strategy is to invoke the rule of law, which is seen as expressing universal values such as protection of rights, transparency, and nondiscrimination. Thus, as Vauchez (2012, p. 231) puts it, “lawyers shared a common legal habitus characterised by a proclivity to defend contradicting social interests and to deal with competing social allegiances in the name of law.” This potentially affords them the opportunity to exercise signiﬁcant inﬂuence in efforts to construct transnational governance regimes in various ﬁelds. Such activity also helps lawyers frame problems in terms that require their assistance in solving them. As Halliday & Carruthers (1998, p. 51) argue, “professions try to frame the legal environment in ways that favor their knowledge and expertise. To maintain control over jurisdiction, professionals must convince others that they offer the most authoritative interpretation of their problem.” One example of this may be the tendency in recent years to frame concerns about corporate behavior in human rights terms, in contrast to a longer tradition of focusing on social responsibility or sustainability. The latter perspective draws on the expertise of professionals in ﬁelds such as engineering, community relations, and marketing, whereas the former of course frames the problem in terms that call for legal expertise. Evidence is very preliminary at this point, but there is some indication that the result may be to place corporate general counsel in the role of coordinating efforts among ofﬁces that previously reported directly to the executive suite (Regan & Hall 2016). This in turn may prompt the creation of more law ﬁrm practice groups to advise on business and human rights. To return to the issue posed at the beginning of this article, all this suggests that the work of global lawyers on transnational governance regimes can stimulate the demand for services to which their ﬁrms are a response. They are especially well-situated to help invoke the universal norms that spur globalization, whether those norms emphasize free markets or human rights (Dezalay & Garth 2011). They are also in a position to help mediate between those norms in a way that may help redress the asymmetry in favor of business interests that Dezalay & Garth (2012b, p. 292) claim characterizes the transnational legal system. They suggest that as “transnational environmental law, indigenous rights and codes of conduct with respect to labor practices, for example”areincorporatedintocorporatepractice,“thegreater thelikelihoodthattheywillbecome more routinised through relationships and activities that blend the world of NGOs and that of corporate practice.” It would be a tall order, but the result could be a more robust system of transnational justice. 146 Regan CONCLUSION This article has focused on the globalization of the legal profession through the lens of business lawyers’ involvement in constructing governance regimes to coordinate and regulate transnational business activity. Lawyers help construct this regime through activities in various domains with the aim of fostering greater ﬂows of goods, services, and capital across national borders. In addition, the emergence of a focus on
the human rights impacts of transnational business operations may be creating opportunities for lawyers to work on initiatives to ensure that companies have the necessary social licenses to operate in multiple jurisdictions. By enhancing the ability of companies to operate across national borders, these initiatives have in turn created greater need for law ﬁrms to provide services in several jurisdictions around the world. In this respect, lawyers are both the agents and beneﬁciaries of globalization. More research focused speciﬁcally on the role that business lawyers play in helping fashion transnational governance regimes would enhance our understanding of this process. 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 My thanks to Carole Silver and Kath Hall for helpful discussions during the preparation of this article, and to Carole Silver for useful comments on an earlier draft. LITERATURE CITED Abbott KW, Genschel P, Snidal D, Zangl B, eds. 2015. International Organizations as Orchestrators. Cambridge, UK: Cambridge Univ. Press Abbott KW, Snidal D. 2000. Hard and soft law in international governance. Int. Organ. 54:421–56 Abel RL. 2012. What does and should inﬂuence the number of lawyers? Int. J. Leg. Prof. 19:131–46 Alvarez J. 2005. International Organizations as Law-makers. Oxford: Oxford Univ. Press Amao O. 2011. Corporate Social Responsibility, Human Rights and the Law. New York: Routledge Am. Bar Assoc., Bar Counc. Engl. Wales, Bar Counc. Malays., Bar Hum. Rights Comm. Engl. Wales, Cons. Natl. Barreaux, et al. 2015. Joint Declaration of Commitment on the Development and Promotion of the Field of Business and Human Rights within the Legal Profession. http://www.americanbar.org/content/dam/ aba/administrative/human_rights/joint_declaration.authcheckdam.pdf Auld G. 2014. Constructing Private Governance: The Rise and Evolution of Forest, Coffee, and Fisheries Certiﬁcation. New Haven, CT: Yale Univ. Press Baldwin RE. 2000. Regulatory protectionism, developing nations, and a two-tier world trade system. Brookings Trade Forum 2000:237–80 Bartlett C, Ghosal S. 2002. Managing Across Borders: The Transnational Solution. Cambridge, MA: Harvard Bus. Rev. Press. 2nd ed. Bartley T. 2007. Institutional emergence in an era of globalization: the rise of transnational private regulation of labor and environmental conditions. Am. J. Sociol. 113:297–351 Beaverstock JV. 2004. Managing across borders: knowledge management and expatriation in professional legal service ﬁrms. J. Econ. Geogr. 4:157–79 Beaverstock JV, Smith R, Taylor PJ. 1999. The long arm of the law: London’s law ﬁrms in a globalising world economy. Environ. Plan. A 13:1857–76 www.annualreviews.org • Transnational Governance Regimes 147 Beaverstock JV, Smith RG, Taylor PJ. 2000. Geographies of globalization: United States law ﬁrms in world cities. Urban Geogr. 21:95–120 Berkowitz D, Pistor K, Richard J-F. 2003. Economic development, legality, and the transplant effect. Eur. Econ. Rev. 47(1):165–95 Bieri F. 2010. From Blood Diamonds to the Kimberly Process: How NGOs Cleaned Up the Global Diamond Industry. Surrey, UK: Ashgate Black J. 2008. Constructing and contesting legitimacy and accountability in polycentric regulatory regimes. Regul. Gov. 2:137–64 Blecher L, Stafford NK, Bellamy GC, eds. 2014. Corporate Responsibility for Human Rights Impacts: New Expectations and Paradigms. Chicago: Am. Bar Assoc. Bodansky D. 1999. The legitimacy of international governance: a coming challenge for international environmental law. Am. J. Int. Law 93:596–624 Braithwaite J, Drahos P. 2000. Global Business Regulation. Cambridge, UK: Cambridge Univ. Press Brummer C. 2015. Soft Law and the Global Financial System: Rule-Making in the 21st Century. Cambridge, UK: Cambridge Univ. Press. 2nd ed. Bulkeley H, Andonova LB, Betsill MM, Compagnon D, Hale T, et al. 2014. Transnational Climate Change Governance. Cambridge, UK: Cambridge Univ. Press B¨uthe T, Matt
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, and Milton C. Regan, Jr.Abstract This article compares sociopolitical perspectives about the law in three regions of the world: the United States, France, and Latin America. Despite their heterogeneity, these sociolegal perspectives share many practical and theoretical similarities. For this reason, this article proposes grouping them under the more general title of sociopolitical legal studies (SLS). This general label includes a collection of transdisciplinary research, theories, and studies that view law as a sociopolitical phenomenon central to the understanding of power and society. The concept of SLS reveals the existence of a transversal ground between three academic disciplines: sociology of law, legal theory, and sociolegal studies, which, in spite of multiple connections, rarely communicate with one another. Additionally, the term studies is used in a broad sense, including not just legal theories but also empirical analyses of the law. 25 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION For classical thinkers law could not be understood outside its relationship with society and political power. This can be seen in classic social theory and jurisprudence. On the one hand, classical sociologists understood law as closely related to social reality and political power.1 Law was, for them, an essential element of social cohesion, collective identity, and economic development. Durkheim (1963, p. 12), for instance, argued that to understand the character of a society, one had to recognize the type of law that prevailed within it: [W]hen one wants to know the way in which a society is divided politically, the way in which these divisions are composed, the more or less complete fusion which exists between them, it is not with the aid of a material inspection and by geographical observations that one arrives at an understanding; for these divisions are moral as well as having some basis in physical nature. It is only through public law that it is possible to study this organization, for it is this law, which determines it, just as it determines our domestic and civil relations. Law, power, and society were intimately linked—so much so that the study of each one was crucial for their mutual comprehension. Thus, classical sociology was also a political sociology of law.2 On the other hand, jurisprudence and classical legal thinking also viewed law, society, and politics as interconnected. Indeed, the great majority of legal thinkers, from Plato to Kant, envisaged law as intimately linked to social order, justice, and the defense of the political community (Berman 1983, Del Vecchio 1964, Legendre 1974, Platon 1980, Sabine 1961, Tamanaha 2001, Villey 1975). They understood law and politics not only as two interlocked elements but also as essential instruments for justice and the common good.3 The idea that law, society, and politics were closely intertwined (what I refer to as a sociopolitical vision of law) gained strength in both sociology and jurisprudence at the beginning of the twentieth century, as a reaction to the formalist conceptions of law that had previously dominated Europe and the United States.4 In the United States, this vision became known as “the sociological movement in law.”5 In Europe, a similar reaction spurred by the emergence of social and socialist ideologies arose against the French codiﬁcation movement and the school of exegesis.6 Sociopolitical visions of law began to lose ground in both Europe and the United States after World War II, as conservative ideas and legal formalism once again took hold. At the same time, the social sciences began to distance themselves from legal thinking. Up until that point, economics, 1On Marx, see Cain & Hunt 1979, Hunt 1982, Stone 1985. On Weber, see Hunt 1978, Lascoumes 1995, Pollak 1988, Trevi˜no 1996, Trubek 1972. On Durkheim, see Chazel & Commaille 1991, Cotterrell 1991, Hunt 1982, Trevi˜no 1996. 2The same idea can be applied to other classical authors, such as Ehrlich (1922), Geiger (1969), Gurvitch (1942), Maine (1861), Petrazycki (1955), Romano (1975), Savigny (1815), Spencer (1898), Sumner (1940), and Timasheff (2007). 3See Aristotle 1974, De Aquino 1988, Kant 1797. More generally, see Bobbio 2005, Del Vecchio 1964. On the classic idea of interconnection between the law, society, and politics, see the concept of noninstrument
al theory of law, developed by Tamanaha (2006). 4Here I am adopting the English terminology that differentiates formalist and antiformalist theories of the law; the former include those that regard law as a collection of norms organized in a coherent, rational, and politically neutral manner. On this subject, see Duxbury 1995, Minda 1995. According to Kennedy (1997, p. 105), formalism supposes that all questions in law can be resolved through deduction—that is to say, without recourse to politics. On the debate regarding legal formalism, see Cotterrell 1998, Nelken 1996. 5Its principal representatives were Oliver Wendell Holmes, Roscoe Pound, and Karl Llewellyn; for a discussion of these authors, see Hunt 1978, Trevi˜no 1996. 6On the codiﬁcation movement and the school of exegesis, see Bonnecase 1924, Jestaz & Jamin 2004, Matteucci 1988. 26 Garc´ıa-Villegas political science, and sociology—relatively young disciplines—were quite often promoted and even taught by lawyers, which could have led legal science and lawyers to claim paternity of these disciplines. Thus, in their quest for disciplinary autonomy, these new social sciences excluded the law from their methods and objects, fearing that its presence would threaten their recently gained independence (Deﬂem 2010, P´ecaut 1996). Nevertheless, despite formalism in legal theory and sociologists’ withdrawal from law, the sociopolitical perspective was never obliterated. Its advocates, however, did not face the same fate everywhere: They were more or less successful in the United States, aided by a more dynamic and political conception of legal practice, but they failed in Europe and Latin America, in particular between World War II and the end of the twentieth century, when the integrity of the law was preserved by a caste of jurists and professors who beneﬁted from great social power (Boigeol & Dezalay 1997; Bourdieu 1989, 1991; Dezalay 1992; L´opez 2004). Today, once again, we are witnessing a renaissance of social and political visions of law in Europe and Latin America, and even in France, the country that was the greatest defender of juridical formalism.7 This renaissance, nonetheless, is founded upon disciplinary niches that differ from country to country: Whereas in France it has ﬂourished largely in departments and institutes of sociology and political science,8 in Latin America, in countries such as Brazil, Colombia, and Argentina (see, for example, Campilongo 1997, Garc´ıa-Villegas 1993, Gargarella 2005, Lemaitre 2009, L´opez 2004), it has prospered primarily in law schools. It must be added, however, that formalist visions of the law continue to dominate most law schools, even in the United States, where the law is, prima facie, more open to social sciences. Similarly, in the overall context of international legal knowledge, the new sociopolitical visions of law are relatively marginal. My objective in this article is twofold: ﬁrst, to propose an interdisciplinary concept for the comparison of sociopolitical perspectives in law, and second, to set up the basis to compare these sociopolitical perspectives in the United States, France, and Latin America. The structure of the article follows these two ideas and ends with some reﬂections on the future of sociopolitical perspectives in law today. THE SOCIOPOLITICAL VISION OF LAW I address two points in this section, ﬁrst explaining the idea of sociopolitical legal studies (SLS) and second proposing a new transdisciplinary title to make sense of them all. The Core Idea In spite of their differences, all sociopolitical approaches to the law (both in Europe and in the Americas) share the idea that the law cannot be understood outside of its social and political dimensions (Grifﬁths 2006). More speciﬁcally, they share two fundamental theoretical premises. First, they reject the two central tenets of legal formalism: (a) legal autonomy in relation to society and (b) legal neutrality in relation to political power. The critique of legal autonomy assumes that law is embedded in society and therefore is not a self-sufﬁcient knowledge that determines its 7In 1986, Pierre Bourdieu published La force du droit, and in 1990, the French Sociological Association dedicated its annual colloquium to the question of the law. See Chazel & Commaille 1991, Garapon & Papadopoulos 2003, Isra¨el 2008, Isra¨el et al.
2005, Jamin 2012. 8On the side of political science, see Chevallier 2003, Jamin 2012, Lochak 1989. On the side of the theory of law, see Caillosse 2011, Troper 2000. And on the side of sociology and anthropology, see Assier-Andrieu 1996, Bancaud & Dezalay 1984, Champy & Isra¨el 2009, Commaille & Duran 2009, Garc´ıa-Villegas & Lejeune 2011, Lascoumes 1991, Vauchez 2006. www.annualreviews.org • Sociopolitical Legal Studies 27 own truth. The critique of legal neutrality assumes that law is not an expression of the people’s will, interpreted and applied in a technical and impartial way by politically disinterested legislators of bureaucrats. Sometimes these rejections are radical and reduce the law to either society or politics, whereas other times they are moderate and lead to the recognition of relative legal autonomy or relative legal neutrality. Not all of these critiques reject both legal autonomy and legal neutrality. Some focus only on one of these formalist legal features. I develop these ideas in the next section. Second, these sociopolitical approaches draw upon the idea that the law is a language composed primarily of words and symbols that reﬂect society’s core values, such as justice, equality, order, cooperation, and freedom. They claim that legal language and values do not have a ﬁxed meaning, and that the reality of the law depends to a large extent upon the political ability of social actors and institutions to determine the meaning of legal texts in an adversarial legal ﬁeld (Garc´ıa-Villegas 2014). The symbolic dimension of legal norms is grounded in the ﬂuidity of legal meaning, that is, in the malleable understanding of legal words, and particularly of legal rights. A good portion of the current legal mobilization is founded in what Scheingold (1974) called “the myth of rights,” i.e., the ﬁght for rights as banners of political mobilization used by social movements. Rather than simply law, rights are political and moral symbols whose interpretation depends upon a political struggle for the ﬁnal meaning of legal texts. Such a meaning is reached at the intersection of several discourses and approaches: “Most of what is articulated as ‘law’ and ‘rights,’” Dudas et al. (2015, p. 369) argue, “is a complex mix of generically legal, moral, religious, technical and other logics.”9 A New Concept: Sociopolitical Legal Studies Thus, despite their heterogeneity, these new sociolegal perspectives share many practical and theoretical similarities. For this reason, I propose grouping them under the more general label of SLS. This general label includes a collection of transdisciplinary research, theories, and studies that see law as a sociopolitical phenomenon that is central to the understanding of power and society.10 It is worth saying that there have been other efforts to bring together critical, sociological, and sociolegal scholars. In the United States, for instance, the book Crossing Boundaries, edited by Austin Sarat and others [see, e.g., Munger’s (1998) chapter “Mapping Law and Society”], is a good example of it. A book edited by Clark (2012), Comparative Law and Society, is also worth mentioning here.11 In Europe, Gessner & Nelken (2007) published an interesting collection of articles in which scholars from different disciplines compare European law with other legal systems.12 The work of Travers & Bankar, in which an effort is made to bring the classic sociological approach to law, 9The symbolic idea of law is a concept that goes beyond the practice of interpreting rules and standards in the process of legal adjudication. This is why the difference between the law’s symbolic efﬁcacy and its instrumental efﬁcacy does not necessarily coincide with the difference between an internal (technical) point of view and an external point of view (Hart 1961). As has been shown by critical legal theories, the political dimension of law is embedded in the internal and technical point of view, due to the ﬂuidity of legal meaning (Kennedy 1997, Tushnet 1984). Therefore, the symbolic efﬁcacy of law encompasses the entire legal phenomenon, and this is why it is the key concept for understanding the political dimension of law. For a development of these ideas, see Garc´ıa-Villegas 2014. 10Transdisciplinarity is the intellectual posture that is, simultaneously, between, across, and beyond all disciplines (Morin 1994, Nicolescu 2002). For a discussion of transdisciplinarity in law,
see Arnaud 2013a,b; Chassagnard-Pinet et al. 2013; van de Kerchove 2013. 11See also Nelken 1984, 1986; Darian-Smith 2013; Isra¨el 2013; Garc´ıa-Villegas 2003, 2009; and Calavita 2010. 12Of particular interest in this book are the introduction and chapters of Kagan (2007), Cotterrell (2007), and Garapon (2007). 28 Garc´ıa-Villegas is also part of this endeavor (Banakar & Travers 2002, Travers 1993). Likewise, scholars working in speciﬁc subﬁelds have attempted to do the same. This is evident in the work of McCann on the dialogue between social movement scholars and legal mobilization scholars (Dudas et al. 2015, McCann 2006). Some integrative efforts have also been made at the regional level. In Latin America, particularly in Colombia, M´exico, Argentina, and Brazil, there is a growing interest in the law and society scholarship (see, for instance, de Lima Lopes & Freitas 2014; de Sousa Santos & Rodr´ıguez-Garavito 2005; Garc´ıa-Villegas 2010, 2014; Junqueira 2001; Lemaitre 2015; R´ıos Figeroa 2012; and Rodr´ıguez-Garavito 2003, 2011, 2014). This article is intended as a contribution to this literature, not only by deepening the disciplinary connections within SLS but also by expanding the geographical scope of comparison of SLS. As for disciplinary connections, this article takes up the old idea of the classics of sociology according to which the understanding of law cannot be made independently of society and power. As for the latter, my analysis beneﬁts from the advances made by the SLS in Europe and Latin America. The idea of SLS reveals the existence of a transverse ground of studies between three academic areas: sociology of the law, legal theory, and sociolegal studies, which, in spite of multiple connections, rarely communicate with one another. From a comparative perspective, the adoption of this general and inclusive terminology has four advantages: First, it helps overcome the lack of communication between the three aforementioned academic disciplines and, in doing so, highlights the multiple relationships between their legal scholarships. Replacing the conventional expressions sociology of law, sociolegal studies, and critical theory of law (susceptible to being appropriated by jurists as well as sociologists) with the more neutral SLS helps avoid disciplinary quarrels, particularly common in countries with civil law traditions, between a sociology of law crafted by jurists and one crafted by sociologists.13 Assuming a more general point of view than that of the disciplines at stake (law, political science, and sociology) can help not only to make peace in disciplinary battles (Wallerstein 1999) but also to better understand, from a comparative perspective, the multiple connections between legal scholarships that barely communicate. Second, this more inclusive perspective highlights the fact that the great contribution of these new visions of the law resides less in the methodological or epistemological enrichment of each of these disciplines than in the analysis of certain fundamental social and political problems of the contemporary world. This can be seen in the tendency of SLS authors toward the study of subjects such as the politicization of justice, the globalization of law, human rights activism, the politicization of the juridical profession, the increasing contestation of the law, and the pervasiveness of juridical pluralism, among others. All these issues are traversed by the double phenomenon (disciplinarily unclassiﬁable) of the increased judicialization of politics and of the politicization of justice, which characterizes a great deal of current social relations. In short, instead of beginning with the discipline and moving to the problems, SLS begins with the problems and moves toward the disciplines, and then returns to the problems. On this point, I share not only the surprise of scholars (especially American ones) upon observing the persistence and even virulence of disciplinary debates between jurists and sociologists that take place in France, and sometimes in Latin America, around the existence of sociology 13On this subject, see Arnaud 1998, Banakar & Travers 2002, Caillosse 2011, Commaille 2003, Isra¨el 2008, Loiselle 2000, Travers 1993, Treves 1995. More recently, see the two volumes of the Droit et Soci´et´e, the French journal dedicated to this debate: the ﬁrst of them (no. 69
–70), from the sociological perspective, organized by Liora Isra¨el, and the second (no. 75), from the juridical perspective, organized by Pierre Brunet and Michel van de Kerchove. It must be said that in the United States and England sometimes these divisions can also be seen; see, for instance Banakar & Travers 2002; Deﬂem 2010, p. 275; Travers 1993; Sarat & Ewick 2015. www.annualreviews.org • Sociopolitical Legal Studies 29 of law, but also their concern for the unfavorable consequences that such debates have for the construction of cooperative academic communities.14 Third, the inclusive nature of this perspective can help overcome a kind of legal and sociolegal knowledge that is too parochial, too focused on the nation- state, and too limited to local and domestic law (Assier-Andrieu 1996, Darian-Smith 2013, de Sousa Santos & Rodr´ıguez-Garavito 2005, Twining 2009). SLS not only relativizes the dependency of law in relation to the nationstate but also expands the notions of time and space that we need to address modern issues of globalization and the weakening of nation-states (Pogge 2008, Rodot`a 2013, Singer 2004). Finally, with this label, I believe we will more easily reach the objective some sociologists of law pursue, particularly Jacques Commaille in France, of recovering the perspective of classical sociologists (and, I add, of classical legal thinkers) to better understand the close connections that currently exist between power, legal norms, and social relations.15 BASIC IDEAS FOR THE COMPARISON OF SOCIOPOLITICAL LEGAL STUDIES For the comparison of SLS I draw upon two main presuppositions: First, legal and sociolegal ideas are shaped, to some extent, by the distribution of symbolic and social capital among legal actors (e.g., lawyers, law professors, legislators, and judges) and by the relationships that these actors maintain with actors in the political ﬁeld. These power relations among actors in the legal ﬁeld differ according to the civil law and common law traditions, as Weber (1922) explains in a classical text. Second, in each of these traditions and legal cultures, certain types of relationships between law, power, and society are established, which are the reference points that allow for the construction and interpretation of norms and legal doctrines (Van Caenegem 1987).16 In short, the different positions and tendencies that legal actors have occupied in the history of common law and civil law, on the one hand, and their relation with political power, on the other, have shaped the sociopolitical visions of law. Actors in the Legal Field Whereas in France and other civil law countries law professors enjoy the most prestige, in common law countries judges and lawyers do.17 The success of professors of (civil) law and of law schools in France, Germany, and Latin America comes from their capacity to present themselves as the keepers of state knowledge. They have thus acquired not only great visibility and political signiﬁcance but also great autonomy vis-`a-vis political power (Dahrendorf 1969). By contrast, the success of lawyers and judges in the United States is due to their role as social engineers in the resolution of conﬂicts and in a wide range of sociopolitical questions. I come back to these differences in the following section. In short, a comparative sociolegal assessment of the authors, debates, and movements in the legal ﬁeld must keep in mind the legal tradition in which they operate, the political struggles among legal actors, and the social and political context in which they succeed or fail in their search 14On this subject, see Arnaud 1998, Caillosse 2004, Treves 1995. 15See Commaille et al. (2010, 2015); a similar vision can be found in the writings of Hunt (1978, 1982, 1993). 16The particular identities of common law and civil law were shaped by the debate around the concept of sovereignty in the seventeenth and eighteenth centuries in England and France (Garc´ıa-Villegas 2009). 17For a detailed explanation of the differences, see Bourdieu 1986, Legrand 1999, Rheinstein 1954, Van Caenegem 1987. 30 Garc´ıa-Villegas for symbolic power (Bourdieu 2012, Dezalay 1990, Garth & Sterling 1998). Only thus can we appreciate the reasons for which certain ideas, authors, or movements are accepted while others are rejected (L´opez 2004, Nelken 2001). By bearing in mind this complex web
of connections, we can avoid both what Friedman calls the “internalist school”18—that is, the temptation to explain the evolution of a discipline (in this case, law) by tracing the vicissitudes of its arguments, movements, and ideas—and the materialist approach that reduces legal thought to the economic context in which it arises.19 The Relationship Between the State and the Law The particular identities of common law and civil law were shaped by the debate around the concept of sovereignty in the seventeenth and eighteenth centuries in England and France (Bourdieu 1997, Elias 1986, Tilly 1990). The two countries had different ideas on this subject. In the French tradition, which came out of absolutism, law was the expression of the sovereignty of the state, represented by the monarch (Van Houtte 1986). Under this conception, law does not precede the state but is its expression. In the civil law tradition, popular sovereignty is expressed in the civil code,20 which seeks to create a consciousness of all belonging to a single nation, governed by one sole law and one sole will. According to Merryman (1994, p. 28), “the French Code of 1804 was conceived as a sort of book of the people which could be placed on the shelf next to the Bible.” The common law tradition rests, conversely, on the medieval conception of mixed constitution,21 according to which the law belongs to the people, almost as an attribute of the group or a common possession that helps the group maintain its unity (Sabine 1961).22 The legal culture is thus founded on practices and common sense, not on general principles. This is why it is supposed that common law has always existed and must be discovered and ceaselessly adapted.23 In the common law tradition, law, and particularly rights, is close to individuals. Locke (1946), for instance, argued that the foundation of political power came from the inalienable rights of individuals, who, at any moment, could revoke the mandate of those in power. Conversely, for Rousseau (1762), both law and rights were deﬁned and granted by the state. In short, there is a neat differentiation between the law as resulting from essential rights embedded in human nature (England) and the law resulting from the representatives of the people, who are the only ones capable of establishing the content of fundamental rights (France and Latin America). In the ﬁrst case, rights are natural rights; therefore, they are autonomous from political power, and legal norms can be the object of an institutionalized legal critique, developed within 18According to Friedman (1989, p. 10), this perspective “observes law as the lawyer or the jurist observes law.” 19This reductionist vision is adopted by both orthodox Marxism and contemporary perspectives from the law and economics movement. 20According to article 4 of the Declaration of the Rights of Man and Citizen of 1793, the law is an expression of the general will. 21In England, the adoption of the tradition of the mixed constitution, inherited from the Middle Ages, was an antidote to the idea of sovereignty (see Fioravanti 1999, 2001; Matteucci 1988; Zagrebelzki 1992. In the seventeenth century, the Stuarts failed in their attempt to import the French model of sovereignty. The Glorious Revolution of 1688, which ran counter to this French tradition, adopted the idea of the separation of power between Parliament and the King. 22For example, in the United States, although the popular will might play an important role in times of constitutional crisis (marked by radical changes of political regimes), once this crisis is over, the sovereign people withdraws and acts through the powers established by the Constitution (Ackerman & Rosenkrantz 1991). 23In the common law tradition, George Sabine (1961) explains, law is “found” rather than “created,” and it is inappropriate to say that there exists a body of people whose task is to create law. www.annualreviews.org • Sociopolitical Legal Studies 31 the juridical system, without putting the social contract into question. In the second case (France), law has no autonomy in relation to politics, and legal critique, to be effective, must question the entire social contract. All of this has a direct impact on the political conception of law and on the social and political uses of rights. Legal critiques in Europe have a tendency to neglect legal analysis by subordinating law to political power. Conversely, in the United States, the critique of legal norms is natural and therefore does not involve a critique of the political order. In France, the conceptual separation between the state and the exercise of power was more tortuous than in England, where the state is more related to natural law and therefore is not affected by historical facts.24 Moreover, whereas in continental Europe the political struggle around law is concentrated on
the lawmaking process, in the United States this struggle extends beyond lawmaking to adjudication, in which citizens and social movements are involved.25 The social and political visions expressed in these traditions have determined two different types of SLS, each one with a particular conception of the relationship between law and sociopolitical realities. From that emerged two different ideas of legal critique, and two particular conceptions of the relationship between law and social sciences. Two caveats are at stake here: (a) These differences are valid from a longue dur´ee perspective. Today, the globalization of the economy, the constitutionalization of rights, the legalization of politics, and the rise of a European legal ﬁeld, among other factors, have produced a lot of homogenization in legal ﬁelds. And (b) the inclusion of Latin-America among the civil law tradition is, although justiﬁed, problematic. SLS in Latin America have had a fate similar to that of their European counterparts, particularly in France. The existence of a common legal tradition on the two continents, inherited from Roman law, not only engenders similar conceptions of law, political power, and law’s relationship with society but also helps explain why sociolegal studies are marginal and scatter in the academic world. But unlike what happens in Europe, the speciﬁcity of sociolegal studies in Latin America cannot be fully captured by these two theoretical presuppositions. Law, sovereignty, and political power, whose conceptions and implementation were imported from Europe and the United States, have a limited ability to determine social behavior. As a consequence, Latin American civil society is often embedded in state institutions, which makes the classical categories of legal theory, legality (validity), sovereignty, and legal effectiveness problematic (Centeno & Ferraro 2013, Escalante 2002, Esquirol 2008, Garc´ıa-Villegas 2008). Comparative Overview of Sociopolitical Legal Studies The two conceptions of SLS described above can be analyzed in terms of the stand they take vis-`a-vis legal autonomy and legal neutrality. The closer law is to political power and the state (France and Latin America), the more the autonomy of juridical doctrine will be proclaimed and, as a consequence, the weaker the connection between law and the social sciences will be and a more radical turn the legal critique will take. Conversely, the closer law is to society and the market (United States), the weaker the autonomy 24The autonomy of the state in France was built from the supremacy of the public administration, as an expression of the Civil Code (Carr´e de Malberg 1922, Jellinek 1981). The same was true in Latin America, but with less symbolic force legitimizing state institutions (Garc´ıa-Villegas 2009). 25This dichotomy can be a little reductive in relation to certain works that, especially in France, tend to show that public engagement with law exists during legal implementation (see Baudot & Revillard 2014, Lejeune 2011). 32 Garc´ıa-Villegas of legal doctrine and the stronger the connection between law and the social sciences.26 Let me explain this in more detail. SLS adopt a critical position in regard to legal autonomy, to legal neutrality, or to both. Therefore, it is possible, in principle, to differentiate SLS according to the critical target at which they take aim. We can then separate those contesting the autonomy of law from those contesting the political neutrality of the law. SLS can also be classiﬁed according to the point of view they adopt in relation to law. To that extent, there are, on the one hand, internal SLS that view things from inside the legal system and, on the other hand, external SLS, which view things from outside the law. Internal perspectives, usually carried out by lawyers, envisage law from within the legal discipline, whereas external perspectives, usually carried out by social scientists, consider legal norms from social sciences.27 From the combination of these two points of view (the critical target and the position with respect to the law), four types of SLS emerge. The ﬁrst two are internal to the law (one against legal autonomy and one against legal neutrality), and the latter two are external to the law (one against legal autonomy and one against legal neutrality). I consider ﬁrst the internal or legal positions and then the external critiques of law. The ﬁrst combines the internal vision with the critique of legal autonomy. We often ﬁnd this type of vision in the work of law professors and jurists who are unsatisﬁed with the doctrinal conception of law that is taught in law schools. Their objective is to show the relative dependence of the law on social reality, but without dismissing the legal system’s internal rationality (imperfect though it may be). For them, it is about adapting law to social
reality (against the idea of autonomy) to improve either its internal logic or its social efﬁcacy. In this category, we can include theories like Sociological Jurisprudence, led by Pound (1912, 1927) in the United States; the legislative sociology of Carbonnier (1978, 2001) in France; some political conceptions of law in Latin America, like Nino’s (1973, 1997) constitutional theory or Garz´on Vald´ez’s (1993) political theory of law; and more recently most of what is written in Empirical Legal Studies today in the United States.28 This type of SLS was particularly important in law schools, ﬁrst in the United States during the ﬁrst decades of the twentieth century, and second in France with the sociology of legislation ( Jean Carbonnier) during the 1970s. Because the ultimate goal of these authors is to improve the law and the legal system, the critical potential of their theories is thus very often limited. The second position results from the combination of the internal point of view and the critique of legal neutrality. Legal norms are perceived here as instruments designed and used for political domination. The goal of authors who adopt this perspective is to deconstruct legal rationality and show the gaps and inconsistencies of the law to prove that law is and functions like a political instrument intended to dominate subaltern classes and minorities. Critical legal theories, such as 26American legal antiformalism is not necessarily a progressive form of thought. Movements such as law and economics and law and society may present themselves as heirs of legal realism, even if they espouse different political visions. Additionally, the fact that American legal thought draws from the interstices between the market, power, and the law has problematic implications, not just in relation to the domestication of critical perspectives but also in relation to the commodiﬁcation of law schools, which results in a loss of professors’ autonomy vis-`a-vis existing political and economic powers. One might even suggest that the American antiformalist criticism, which emphasizes the need to deﬁne the connections between law and society, was favorable to the legal ﬁeld and conservative views. See Dezalay et al. 1989, Garth & Sterling 1998, Tamanaha 2012, Tomlins 2000. 27Hart (1961, p. 89) developed this distinction in his famous book, The Concept of Law; see also Ost & van de Kerchove 1991. 28For a general overview of this movement, see Suchman & Mertz 2010; see also Chambliss 2008, Leiter 2003, Nourse & Shaffer 2009, Shaffer 2008. www.annualreviews.org • Sociopolitical Legal Studies 33 critical legal studies,29 critical race theory,30 and legal feminism31 in the United States, provide the best examples of this perspective. This perspective has dominated in law schools the United States since the early 1970s. Let Us Now Turn to the External Visions The third position results from the connection between the external point of view and the critique of the autonomy of law. The external perspective can originate in sociology, anthropology, political science, or another social discipline. The SLS located in this position attempt to demonstrate that law has no autonomy from social reality, that is to say, legal truth is not provided by the legal system itself. Their critique relies on the idea of mutual dependency between law and society, without being interested in the political character of law and its practice. This point of view has a long academic tradition, especially in sociology, which goes back to the writings of Montesquieu, Gurvitch (1935, 1942), Petrazycki (1955), Alberdi (1981), and Ehrlich (1922, 1936), among others, and closer to us, to authors such as Deﬂem (2010) and, sometimes, Cotterrell (1983, 2004, 2012) and anthropologists in legal consciousness studies (Ewick & Silbey 1998, Merry 1988, Silbey 2005). The alternative law movement in Brazil is close to this model: Its authors— de Arruda (1993), Rodrigues (1993), and Wolkmer (2012)—adopt a social or sociological point of view when they critique the traditional legal operators (e.g., judges, legislators), nevertheless emphasizing the importance that a more open and social legal rationality can have. This perspective has prospered in social science departments in France and the United States over the last decades. Finally, the fourth position results from the combination of an external view of law and a critique of its political neutrality. From this position, law is seen as domination, and its rationality and technique can emerge only from outside the legal
system. The authors from this group are frequently the most radical: The fact that they do not recognize or are not interested in the internal rationality of law drives them to adopt an attitude of radical disqualiﬁcation of the legal system. This is the case of the French critics in the critique du droit32 movement and of some Latin American authors inﬂuenced by Marxist thought on law (Correas 1993, De la Torre 2006, Rojas & Moncayo 1978, Wolkmer 1995). This type succeeded in law schools in France and Latin America, especially during the 1970s and 1980s. Table 1 presents the typology established here, along with examples of some authors from each group. The differences between these ideal types have important implications for the social and political scope of SLS. Indeed, as a general rule, internal critiques are more moderate than external visions, for the simple reason that recognizing the internal rationality of law involves, in principle, a certain acceptance of the legal system. External visions, however, tend to neglect not only legal rationality but also any possibility of redemption for existing law. This is particularly obvious for 29For a general explanation, see Kelman 1987, Unger 2015. For a selection of studies, see Hutchinson 1989. For a bibliographic guide, see Bauman 1996, Brown & Halley 2002, Campos et al. 1996, Gordon 1984, Hutchinson 1989, Kelman 1987, Tomlins 2012, Trubek 1984, Ward (1998), White (1986). See also the classic compilation of Boyle (1985, p. 706). For a critique of critiques, see Waldron 1998. 30For an introduction to these studies, see Crenshaw 2002, Crenshaw et al. 1995; Delgado 1987; Delgado & Stefancic 2013; Haney L´opez 1994. There are also critical perspectives on race in law and society; see, for example, Curry 2012, Moran 2010, Obasogie 2010. 31See Butler 1992; MacKinnon 1982, 1989; West 1988, 1997; for a closer assessment, see Kessler 2011. 32See Miaille 1976, 1985; Jeammaud 1987. For a general view, see Dupr´e de Boulois & Kaluszynski 2011, Garc´ıa-Villegas & Saff´on 2011. 34 Garc´ıa-Villegas Table 1 Position Against legal autonomy (embeddedness) Against legal neutrality (domination) Internal (law) a. Legal improvement b. Legal deconstruction External (social sciences) c. Sociological explanation of law d. Political admonition of law the critical authors of the 1970s in France (Miaille 1976), as well as for some Latin American critics of the 1980s (Novoa Monreal 1980, Wolkmer & Correas 2013). Furthermore, SLS opposed to legal autonomy are usually less radical than those opposed to legal neutrality. The former points out how the law is socially dependent, but admits that this can be addressed through institutional engineering and sociolegal reforms. By contrast, SLS that conceive of law as a mechanism of domination tend to see no outcome other than a radical social change or revolution. Overall, the evolution of the SLS in the United States has favored the b and c positions in Table 1, i.e., a moderate position against neutrality (legal deconstruction) and a radical position against autonomy (sociological explanation of law). In France, by contrast, these same studies have privileged positions a and d, i.e., ranging between the most moderate position against autonomy (legal improvement) and the most radical position against neutrality (political admonition of law). In Latin America, meanwhile, at least over the last decades, external positions like c and d have predominated. Finally, and even more importantly, it is necessary to highlight that SLS against legal autonomy and against legal neutrality are not mutually exclusive. In fact, almost all the radical versions against neutrality are also strongly opposed to autonomy. This is why, although the typology is useful for explaining the historical diversity of SLS, it does not sufﬁciently take into account all the possible movements that have existed. This is the case of Max Weber’s or Pierre Bourdieu’s sociology of law, because although they adopt an external point of view, they also recognize the internal point of view (Bourdieu 1986, Weber 1922). Moreover, the legal theory of Ost & van de Kerchove (1987) in Belgium, which adopts an internal and critical legal
point of view, does not ignore the external point of view. Furthermore, for at least the past two decades, the majority of SLS, even those developed in France and Latin America, draw upon a constructionist social theory, which leads them to oppose both legal autonomy and legal neutrality without reducing legal phenomena to the social or the political (McCann 1992, 1994; Scheingold 1974). This constructionist approach is more sensitive to the complexity of legal phenomena and to the reﬁnements of oppression; it is often defended by the authors of the law and society movement and has established itself in France and Latin America (Commaille 2015, Garc´ıa-Villegas 2015, Rodr´ıguez-Garavito 2014). THE FUTURE OF SOCIOPOLITICAL LEGAL STUDIES AND SOME CONCLUSIONS What will be the future of SLS? The answer to this question is undoubtedly difﬁcult, given not only the great dispersion of these studies but also the uncertainties of law in the present world. Nevertheless, it seems to me that all depend on the capacity of SLS to adapt to at least two conditions of the current situation: ﬁrst, the increasing ﬂexibility of disciplinary divisions, and second, the softening of the national dimension of law. www.annualreviews.org • Sociopolitical Legal Studies 35 Transdisciplinarity SLS should echo the lack of differentiation of the social sciences and the need for social imagination in the contemporary world (Wright Mills 1959). Disciplinary divisions have frequently become straitjackets that prevent us from understanding problems and social realities that are more and more complex, multidimensional, and interconnected (Abbott 1995, 2001). In fact, most intellectual traditions do not correspond to objective borders in social reality. All social understanding is porous and interconnected with other social knowledge and disciplines. Encasing them in borders, or cataloguing them, is problematic (Hunt & Colander 2013). Disciplines reveal as much as they conceal, as de Sousa Santos (1995) says, or, in Abbott’s (2001, p. 18) terms, disciplines correct each other’s mistakes. The case for methodological ﬂexibility is particularly strong now given the complexity of problems that SLS deals with in today’s world, in which the state has lost its monopoly on legal creation and legal interpretation. In these circumstances the legal phenomenon is often a diffuse and complex feature that cannot be grasped from one discipline alone. Indeed, monodisciplinary analyses of contemporary sociolegal problems tend to be, most of the time, incomplete or even misleading.33 As Cotterrell (2004, p. 15) states, “social theory can no longer be considered the preserve of any particular academic discipline. It has to be deﬁned in terms of its objectives rather than particular traditions that have shaped it.” I would add that the recognition of the sociopolitical dimension of law involves a delicate interdisciplinary balance, a balance that does not fall into either two of these extremes: one converting social sciences into legal servants, without any possibility for them to question legal rationality, and the other dissolving the speciﬁcity of law in the contents of sociology, political science, or any other social science, i.e., overriding any degree of autonomy to the legal system. Let me now address some practical implications of this disciplinary point. Today new groups and movements of SLS are created with extraordinary ease, particularly in the United States. Such an explosion of groups goes against the call for disciplinary ﬂexibility. This was particularly true in the 1990s, with the formation of a series of critical movements (e.g., legal feminism, critical race theory, Lat Crit, and postmodernism) and the rise of new tendencies within law and society (e.g., empirical legal studies, new legal realism, and legal consciousness studies). Such a proliferation has been facilitated by the proximity that law (and law schools) has to society in the United States. Law is close to social reality, which is strongly determined by the market and economic dynamics. In this sense, American lawyers are perceived as social engineers whose role is to ﬁnd solutions to the problems that emerge in society. Because of that, the legal ﬁeld imitates the logic of the market: Law professors are supposed to produce intellectual goods (e.g., conferences, journals, colloquia, and commentaries) that must be sold in the academic market. In this sense, the fragmentation of SLS also succumbs to the necessity of making these academic products more visible and more attractive in a competitive market. Another consequence of this fragmentation is the lack of communication between the new groups that are created. It is true that specialization may serve to increase the rigor of the analysis of social reality. But because the sociopolitical reality of law is only one, excessive specialization and the lack of communication between specializations imped
es an adequate explanation of the legal phenomenon. For an outside observer, it is always surprising that there is not more academic exchange between, for example, critical legal studies and law and society, or between law and 33Isra¨el (2008, p. 381) is close to the interdisciplinary vision when she proposes a “methodological indifferentiation” for the sociology of law. See also Arnaud (2013a,b), Levine (1990), and the Belgian debate on the relationship between law and context (Univ. Saint-Louis 2013). 36 Garc´ıa-Villegas economics and law and society. Not only are the groups too focused on themselves to communicate with other new groups and too eager and too invested in their positions and scholarly productions, but, even worse, they neglect to communicate even with the theoretical core of general disciplines like political science or sociology. For instance, there is, in general terms, a lack of academic exchange between the literature on social movements belonging to political science and the law and society literature on the political use of laws by these movements (for a notable exception, see McCann 2004). Moreover, there are cleavages between theory and practice and between theoretical analysis and empirical analysis, as is the case between the sociology of law and critical legal studies. These cleavages prevent scholars from having a precise comprehension of legal phenomena. The lack of communication among groups has obstructed the construction of a progressive understanding of the law. Although a long tradition of the progressive use of law has developed over the past few decades (particularly during the civil rights movement and beyond), this tradition has been undermined by the lack of an encompassing critical legal theory. Although it is true that SLS constitutes a very dynamic ﬁeld of political practice and scholarship, its critical and transformative impact has been, especially over the last two decades, rather weak. It is true that it is difﬁcult to sustain a progressive and critical project in a period of economic and political recession and uncertainty.34 But there are also epistemological reasons for this lack of impact, at least regarding law and society. Even though the cultural turn in SLS has contributed to understanding the social reality of law, it has obscured the big picture and structural and class dimensions of the legal phenomena. It is impossible to see this large picture from the daily lives and legal consciousness of social actors.35 This culturalist, often anthropological and postmodern vision of the law has produced an excessive reaction against the study of public policy and, in general, against the study of state institutions. Challenges in a Globalized World The weakening of the nation-state, with all its implications (e.g., the decline of sovereignty, the democratic deﬁcit, the loss of universal values, the rise of illegal powers, the deﬁcit of regulation, legal pluralism) is a challenge for those who think about law and work with it. SLS are still too local and too dependent on conceptual categories belonging to the nationstate (e.g., sovereignty, codiﬁcation, both legal territoriality and legal spatiality, popular will, international law). It is true that globalization has become a relevant subject today (Sarat & Ewick 2015). But the way it is treated is very local, very restricted to the global expressions of the national. It is also very conservative, because it does not question the whole world system, in which unity is the nation-state. SLS are not taking current globalization and cosmopolitanization seriously (Darian-Smith 2013). Despite the fact that the world is more and more interconnected, SLS continue to think in terms of national jurisdictions. We need to be aware of the fact that most of the big problems we face today, such as climate change, economic deregulation, illegal drug trafﬁcking, migration, war, nuclear risks, the judgment of crimes against humanity, and the weakening of the nation-state, are, for the most part, problems of regulation, i.e., sociopolitical legal problems that have no solutions in today’s legal frameworks. 34As Arnold (1971) suggests, in periods of expansion, citizens are open to new ideas and ready to rise to new challenges. In periods of stagnation, however, citizens turn to the past for sources of stability and communal values. 35For some exceptions, see Barclay et al. 2011, Handler 1992, McCann 1994, Silbey 2005. www.annualreviews.org • Sociopolitical Legal Studies 37 To understand the interconnection between law, society, and power in today’s world, we need to enlarge our idea of time and space. A more global approach is essential to imagine and implement the legal strategies that can face the contemporary challenges, risks, and demands of the current world. Our world is legally divided into nation-states and politically legitimized by the general will of national peoples. But these are formal and discursive patterns. In reality, we live in
an interdependent world, dominated mostly by powerful national interests of a few nations, whose domination is both hidden and strengthened behind the fetishism of legal forms and political discourses. If the nation-state has always enacted limits to the effectiveness of rights and to the protection of human dignity, these limits are fortiﬁed in our globalized world: Rights depend today upon passports, as they depended upon race or social class two centuries ago. The chasm between legal forms and sociopolitical realities has increased during this time of globalization. This is why the myth of law, which is the myth of national laws, was never so ﬁctional and so mythical as it is today. The political burden of these myths and forms (their symbolic violence) prevents us from understanding the current relationship between law, societies, and politics in the global arena, and therefore precludes us from facing global problems in democratic, humanitarian, and cosmopolitan ways. We live in a world that believes it can solve its problems through technological innovations, markets, and repression. Science, business, and war seem to be the only keys to deﬁning the future of humanity. Law, global democracy, and international institutions have a marginal and diminishing role in deﬁning and solving these problems, when everything indicates that they should play a leading role in such issues. For these reasons, we need to reconsider SLS in a world that is losing the regulatory power of states, a world that is witness not only to new and more subtle forms of domination that go beyond geographical and political borders, but also to new forms of social and political struggles that go beyond the framework of national borders. What are the implications of these changes in terms of rights and democracy? This is a crucial question for the future of SLS. 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 article gathers the main ideas of a recent book published in France by the author, under the title of Les politiques du droit: Analyze compar´ee d′´etudes sociopolitiques du droit (2015). LITERATURE CITED Abbott A. 1995. Things of boundaries. Soc. Res. 62(4):857–82 Abbott A. 2001. Chaos of Disciplines. Chicago: Univ. Chicago Press Ackerman B, Rosenkrantz C. 1991. Tres conceptos de la democracia constitucional. In Fundamentos y alcances del control judicial de constitucionalidad, ed. BA Ackerman, pp. 15–31. Madrid: Cent. Estud. Const. Alberdi JB. 1981. Bases y puntos de partida para la organizaci´on pol´ıtica de la Rep´ublica Argentina. Buenos Aires: Plus Ultra Aristotle. 1974. La politique. Paris: Ladrange Arnaud A-J. 1998. Le droit trahi par la sociologie. Paris: LGDJ Arnaud A-J. 2013a. Du dia-logein au transgredir: en guise d’ouverture. See Chassagnard-Pinet et al. 2013, pp. 39–53 38 Garc´ıa-Villegas Arnaud A-J. 2013b. The transplanetary journey of a legal sociologist. In Law and Intersystemic Communication, ed. A Febbrajo, G Harste, pp. 17–30. New York: Routledge Arnold M. 1971. The function of criticism at the present time. In Critical Theory Since Plato, ed. H Adams, pp. 592–603. New York: Harcourt, Brace, Jovanovich Assier-Andrieu L. 1996. Le droit dans les soci´et´es humaines. Paris: Nathan Banakar R, Travers M. 2002. Law and sociology. In An Introduction to Law and Social Theory, ed. R Banakar, M Travers, pp. 345–52. Oxford: Hart Bancaud A, Dezalay Y. 1984. La sociologie juridique comme enjeu social et professionel. Rev. Interdiscip. Etudes Jurid. 12:1–19 Barclay S, Jones L, Marshall A-M. 2011. Two spinning wheels: studying law and social movements. In Social Movements/Legal Possibilities, ed. A Sarat, pp. 1–16. Stud. Law Polit. Soc. 54. Bingley, UK: Emerald Baudot P-Y, Revillard A, eds. 2014. L’Etat des droits: La pratique des droits dans l’action publique. Paris: Press Sci. Po Bauman RW. 199
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fragile states—perhaps more acutely than in stable environments—is shaped by a cluster of personal and professional factors, including the clarity of the research question under investigation; the author’s approach, interests, identities, disciplinary audiences, afﬁliations, and ability to access relevant people and materials; and the social, political, economic, and historical context shaping the author’s background and study. This article does not set out to conduct a full review of the diverse practices and methods that scholars use to study law and courts. Instead, it brings disparate authors into a broader conversation about how sociolegal research material is gathered, particularly in conﬂict-affected and authoritarian states, and the ways scholars discuss (and do not discuss) their ﬁeld research methods (see sidebar, A “Field” Study: Researching This Article). Ultimately, the article invites authors to share research processes and ﬁeldwork methods more openly, where safe for researchers and research subjects. After deﬁning important terms, this article outlines the historical trends in law and society that have shaped the emergence of this ﬁeld, moving from theoretically oriented US-based work to questions that have necessitated research in spaces where violence or authoritarianism rule. 86 Massoud Methods Empirical methods refer to research activities that involve collecting actual information beyond the ideas of other scholars (see, e.g., Kritzer 2010). Empirical work is a “social practice” of asking speciﬁc questions about the social world (Halliday & Schmidt 2009, p. 4). For some scholars, empirical methods refer to “any attempt to collect and analyze a set of data... in which the author is... interested” (Korobkin 2002, p. 1035, as cited in Diamond & Mueller 2010, p. 582; see also Galligan 2010). Those data may be qualitative (roughly, words and experiences), quantitative (roughly, numbers), or both (see Spamann 2015; see also Epstein & Martin 2010). In law and social science, empirical work is often contrasted with doctrinal work, or the examination of a particular court case, a set of cases, or trends in legal doctrine (Bradney 2010). Baldwin & Davis (2005, pp. 880–81) deﬁne empirical research in law as the interdisciplinary “study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law.” The empirical aspect of ﬁeldwork on law does not end when one begins to write; rather, the analysis of data occurs “at multiple levels,” both methodically and iteratively (Kapiszewski et al. 2015, p. 26). Field Research Law and social science scholars have varying conceptions of what constitutes ﬁeld research (also called ﬁeldwork or site-intensive research). For the purposes of this article, ﬁeldwork is an empirical research method involving the site-intensive pursuit of “data, information, or insights” www.annualreviews.org • Fieldwork on Law in Fragile States 87 Table 1 Four relevant concepts in law and social science literature Concept Deﬁnition Empirical methods Research activities that involve collecting and analyzing observable data from the social worlda Field research An empirical research method that involves the site-intensive pursuit of “data, information, or insights” (also called ﬁeldwork or site-intensive research)b Conﬂict zone A place where there is a high degree of state control of and restrictions on associational activities alongside violence that the state is unable or unwilling to resolve (also called conﬂict setting)c Authoritarian state A place “where leaders are intolerant of people or groups perceived as threatening to the regime’s monopoly over the institutions of the state” (sometimes called authoritarian regime)d aEpstein & King 2002, Korobkin 2002. bKapiszewski et al. 2015, p. 1; Read 2010. cSee, e.g., Sriram et al. 2009. dWedeen 1999, p. 26. (Kapiszewski et al. 2015, p. 1; see also Read 2010). Field research is particularly useful for gathering subtle, sensitive, or hidden information in fragile states (Read 2010). Personal interactions may take place in a collective way of life beyond one’s national or cultural boundaries (Shafﬁr & Stebbins 1991, Wood 2006). Field research is also a “relational practice” that begins with a research question and lasts through, and beyond, a project’s ﬁnal publication (Greenhouse 2006, p. 187). Ambiguity, difﬁculty, uncertainty, and doubt are often features (Halliday & Schmidt 2009, p. 6). Interactive forms of ﬁeld
research—ethnography; participant observation; and interviews, focus groups, and oral histories—may help to reveal the more complicated and “subtle dynamics” of people’s behaviors (Borneman & Hammoudi 2009). Less interactive forms of ﬁeldwork include nonparticipant observation and the collection of documents and descriptive statistics. Scholars disagree over whether accessing archival and other recorded materials alone counts as ﬁeldwork; such reading, however, may be conducted alongside personal interactions, particularly in projects with comparative or historical cases (see, e.g., Amar 2013, Leonardi 2013, Massoud 2013). Considering the role of ﬁeld research on law in authoritarian states, Moustafa (2014, p. 293) argues that “comparative studies... sensitive to case-speciﬁc context have yielded some of the most compelling research ﬁndings to date.” Conﬂict Zone and Authoritarian State A conﬂict zone is a place where there is a high degree of state control of and restrictions on associational activities alongside violence that the state is unable or unwilling to resolve (Sriram et al. 2009). An authoritarian state is a place “where leaders are intolerant of people or groups perceived as threatening to the regime’s monopoly over the institutions of the state” (Wedeen 1999, p. 26, as cited in Stern 2013, p. 1). This article uses “fragile state” to refer broadly to a conﬂict zone, an authoritarian state, or both. The boundaries between a conﬂict zone and authoritarian state are blurred. It is likewise unclear where violence ends and peace begins, where an authoritarian state ends and a nonauthoritarian state begins, and how to distinguish among various types of conﬂict zones and authoritarian states (see, e.g., Galtung 1990, Nixon 2011). Relatedly, although a state of armed conﬂict is different from a state ruled by drug lords, to an imprisoned lawyer unable to ﬁnd legal support, a displaced woman ﬂeeing violence, or a homeless man searching for food to eat, these distinctions 88 Massoud may seem less meaningful (Wood 2006; see also Taussig 2006). In the United States, streetlevel ﬁeldwork may take place under dangerous conditions at the “organizational front lines” where police behavior shapes citizens’ legal consciousness (Portillo & Rudes 2014, p. 325; see also Goffman 2014, Handler 1970, Young 2014). Indeed, entrenched forms of socioeconomic inequality, state-sanctioned segregation, or militaristic forms of law enforcement may seem more conceivable in authoritarian states than in democracies, just as some areas of war-torn Congo or Somalia may feel, to some researchers in some moments, more peaceful than inner-city Chicago or suburban St. Louis (see, e.g., Lokaneeta 2014 on police interrogation techniques in India and the United States and Brinks 2008 on judicial responses to police violence in Latin American democracies). This boundary blurring between conﬂict and nonconﬂict settings and authoritarian and nonauthoritarian rule suggests an interconnection between the challenges of ﬁeld research on law in the global West and the challenges of research beyond that region. FORMATION OF THE FIELD The study of law and courts in conﬂict zones and authoritarian states lies at the intersection of three areas of scholarship: 1. Concerns in social science about analyzing conﬂict, civil war, and authoritarian rule. 2. Debates in law and society over the politics of law and courts and the social roles of legal institutions and personnel. 3. Explanations of methods. These three issue areas come from a variety of social science and humanities disciplines, including law, anthropology, economics, history, politics, and sociology, and from increasingly comparative and international studies of law. The combined long-term trends in these areas, described in this section, shape contemporary scholarship on law and courts in fragile states (Figure 1). Analyzing Conﬂict, Civil War, and Authoritarian Rule North American and European literature on authoritarianism and political violence emerged largely during the Cold War as the United States and Soviet Union sought to dominate the Interpreting the politics of law, courts, and lawyers Explaining methodological rationales and interventions Analyzing conflict, civil war, and authoritarian rule Figure 1 Origins of research on law and courts in fragile states. www.annualreviews.org • Fieldwork on Law in Fragile States 89 world order. Adopting a variety of methods to interpret these political realities, social scientists in North America and Western Europe sought to explain violence, authoritarian resilience, nuclear warfare and disarmament, and domestic and international warfare (see, e.g., Galtung 1969, 1990; Huntington & Moore 1970
; Kilson 1963; Moore 1966). These world-order concerns have shifted since the 1990s, particularly by shining a brighter spotlight onto hybrid regimes, civil war, and ethnic conﬂict (Levitsky & Way 2010, Young 2006). Collectively, these works use qualitative, quantitative, and mixed-method analyses to assess the quality of democracy and constitutionalism in the world and the causes and consequences of violent authority—for states, institutions, and citizens. Interpreting the Politics of Law, Courts, and Lawyers A second literature that informs the study of law and courts in conﬂict zones and authoritarian states is law and society. Although it is often centered in and on the United States, the ﬁeld of law and society has been looking increasingly beyond US borders. In the mid-twentieth century, early leaders of the law and society movement debated the extent to which their new ﬁeld ought to focus on jurisprudential or policy-relevant issues (see, e.g., Selznick 1959; cited in Abel 2010, p. 2). The ensuing generation of sociolegal scholarship did both, discussing a range of questions around crimes, punishments, and prisons; the power of rights discourse; and how litigation and legal actors, including judges, lawyers, organizations, and administrative bureaucracies, change society. These questions were asked largely by scholars based in the United States who were also thinking primarily about the United States (for a review, see Seron et al. 2013). A new generation of research, responding in part to the rise of authoritarian legality, is looking to diverse regime types for more global theoretical and policy impacts (for a review, see Moustafa 2014; later works include Cheesman 2015; Erie 2015, 2016; Massoud 2015; Rowen 2016). Some of this new research on the politics of law and courts has emerged out of questions in American legal philosophy on human rights and the rule of law, and the politics of their promotion in the global South (Fuller 1969; see also Goodale & Merry 2007; Grenfell 2013; Kleinfeld 2012; Krygier 2008; Massoud 2011, 2016a; Mutua 2008; Rajagopal 2003). Although ongoing, this body of work has expressed discomfort with international legal development programs aimed at fragile states—not dissimilar to critical scholarship a generation earlier on the crisis of “law and development” studies (see, e.g., Trubek & Galanter 1974). Explaining Methodological Rationales and Interventions Social science disciplines have long discussed and debated methods, including the kinds of research questions that lead to empirical or interpretive analysis (see, e.g., Clifford 1983, Kapiszewski et al. 2015, Wedeen 1999, Yanow & Schwartz-Shea 2013). Among these debates are questions, particularly in anthropology, around the politics of ethnographic representation (Borneman & Hammoudi 2009, Clifford & Marcus 1986, Zenker & Kumoll 2010) (see sidebar, Politics of Field Research). Other debates, primarily in political science, concern multimethod research and the extent to which a case study’s ﬁndings hold predictive or generalizable value (Brady & Collier 2010, King et al. 1994). A related debate in political science concerns qualitative data access and research transparency (DA-RT). The American Political Science Association in 2012 changed its ethics guide to encourage qualitative researchers for the ﬁrst time to “provide access to [their] data... or explain why they cannot do so” (Golder & Golder 2016, p. 5; see also Ellett 2016). DA-RT supporters urge ﬁeld researchers to create web-based repositories of raw data, including redacted interview transcripts 90 Massoud POLITICS OF FIELD RESEARCH Scholars have long sought to deﬁne ﬁeld research and to understand whether and how it produces knowledge. Ethnographer John Van Maanen reﬂects on this struggle: It is becoming increasingly obvious that ﬁeldwork practices are biographically and contextually varied—stunningly so. Studies differ in terms of working style, place, pace, time, and evidentiary approaches.... Fieldwork is a technique of gathering research material by subjecting the self—body, belief, personality, emotions, cognitions—to a set of contingencies that play on others such that over time... one can more or less see, hear, feel, and come to understand the kinds of responses others display (and withhold) in particular social situations (Van Maanen 2011, p. 151). Others are less revering of the challenges of ﬁeldwork. Critical
of whether and how ﬁeldwork experiences are transformed into authoritative written accounts, intellectual historian James Clifford asks, “How, precisely, is a garrulous, overdetermined, cross-cultural encounter, shot through with power relations and personal cross purposes circumscribed as an adequate version of a... discrete ‘other world,’ composed by an individual author” (see Clifford 1983, p. 120; also cited in Van Maanen 2011, p. 1)? To Shafﬁr & Stebbins (1991, p. 1), ﬁeldwork is, simply, “one of the more disagreeable activities that humanity has fashioned for itself ” (cited in Kapiszewski et al. 2015, p. 1). and ﬁeld notes, in part to allow other researchers to verify the validity and reliability of qualitative data and analyses (Lupia & Elman 2014). Others argue that, although transparency is a worthy goal, the DA-RT template may be inappropriate for many researchers, including those gathering hidden or sensitive information through interviews with ofﬁcials, activists, and dissidents. That is, release of even redacted notes or transcripts may jeopardize safety, make interviewees reluctant to speak with researchers, and hamper human subjects approvals, particularly in the context of informal institutions and fragile states (see, e.g., Blatmann 2015, Isaac 2015). Sociolegal scholars are also venturing far and wide to pursue their research questions, but surprisingly little of this work discusses methods. The conceptualization of empirical research— particularly qualitative ﬁeldwork in fragile states—remains ongoing. A few works give practical advice to law and social science scholars conducting interdisciplinary, theory-generating, or comparative studies (see, e.g., Bartels & Bonneau 2015, Ellett & Massoud 2016, Halliday & Schmidt 2009, Kawar & Massoud 2012, Luker 2008, Osanloo 2004). Halliday & Schmidt (2009), in particular, provide transcripts of 22 interviews with sociolegal scholars reﬂecting upon how they conducted their most well-known research. Four of these deal with ﬁeld research conducted outside the United States, though none were in authoritarian states or conﬂict zones (Halliday & Schmidt 2009). The most recent Annual Review of Law and Social Science article on ﬁeld research was a review of ﬁeldwork-based studies of law published in 2004 and 2005, in the immediate aftermath of the American “war on terror” (Greenhouse 2006). And some work now being labeled “the new legal realism” emphasizes the “empirical study of people’s lived experiences of law, politics, and power” (Massoud 2016b, p. 97; see also Klug & Merry 2016, Mertz et al. 2016, Suchman & Mertz 2010). EXAMPLES OF FIELDWORK-BASED STUDIES Having situated the study of fragile states into the broader ﬁeld of law and social science, this section now illustrates recent scholarship, some of which I have turned to for my own inspiration, constellating this ﬁeld. Three methods stand out in the work on law and courts in conﬂict zones www.annualreviews.org • Fieldwork on Law in Fragile States 91 and authoritarian states: interviews, ethnography, and archival work (see, e.g., Webley 2010). These are not the only methods that scholars use to study fragile states, which also include survey instruments (Shaver & Zhou 2016) and experiments (Green & Thorley 2014). Although this section treats interviews, ethnography, and archives in isolation to highlight what they each offer, scholars often turn to a combination of methods to tackle a research question from multiple vantage points, or triangulation (Nielsen 2010). Interviews Much of the recent ﬁeldwork on law in conﬂict zones and authoritarian states is based on in-person interviews with government ofﬁcials, judges, lawyers, activists, and others. Interviews may occur one-on-one or in focus groups. Interview-based research may reveal who legal subjects are and what spaces they occupy, how the concepts they use travel, and how meanings and boundaries are created or reinscribed. Four areas of recent research highlight the achievements and challenges of interview methods. Litigating environmental disputes in China. In her work about how ordinary Chinese citizens seek legal relief from environmental pollution, Stern (2010, 2011, 2013) ﬁnds that everyday justice matters in authoritarian states, for government ofﬁcials, lawyers, and international nongovernmental organizations (NGOs). Stern gives a detailed account of how citizens parse mixed signals and ambivalent information from state bureaucrats. Stern’s (2013) book draws on
multiple sources to tell the complex story of legal arrangements in China, including the author’s dozens of interviews with lawyers, judges, and ofﬁcials; her close readings of relevant court decisions and media reports; and her own personal observations and involvement. Conducting interviews in China was not easy, Stern writes, in part because of the difﬁculty of ﬁnding environmental lawyers. She began her research with persistence, by “cold-calling” lawyers and law ﬁrms appearing in media reports; “luck and connections” help, too (Stern 2013, p. 11). Building gay rights in Singapore. Interview-based research also reveals how social movement activists organize, particularly in situations in which they cannot easily call upon courts or the force of the law. Drawing in part on more than 100 interviews conducted in Singapore, Chua (2014a,b; 2012) explains how gay rights activists engage in a delicate multistep “dance” between respecting the state’s interests in social stability and calling attention to activists’ desire for social acceptance (Chua 2012, p. 722). Chua beneﬁtted from familiarity with Singapore’s culture and languages (including Singlish, a mixture of English and local Chinese dialects). Although a graduate student in the United States during some of her ﬁeldwork, she had lived for years in Singapore and neighboring Malaysia, a nation with strong cultural ties (p. 724). Chua also triangulated her interview ﬁndings with content analysis of legislation, parliamentary records, public events, and private social gatherings. Similar to Stern’s work on China, obtaining access to interviews within a repressive political climate was not easy; Chua reached out to informants privately via social media and email. Understanding the political and economic roles of legal professionals. Interviews with lawyers, judges, and other legal actors across regime types, including in fragile states, have created a body of transnational scholarship on the legal profession. Elite interviews with judges or senior ofﬁcials, though sometimes challenging to obtain and conduct, expose institutional dynamics and political implications that government archives and court records in closed regimes cannot reveal (Ellett 2011, 2016). Some interview-based studies conclude that the professional bar is an unsung hero in the struggle for political liberalism in despotic states (for a review, see Karpik & Halliday 92 Massoud 2011). Other research provides contrary evidence, namely that lawyers may use their professional training to achieve personal, material, and political gain (see, e.g., Abel & Lewis 1996; Dezalay & Garth 1996, 2002, 2010). Other work showcases the circumstances under which lawyers do both, by moving into and out of struggles for justice or constitutionalism depending on when opportunities arise for achieving national or personal political goals (Massoud 2012). This work is based largely on interviews with senior ofﬁcials, judges, and law ﬁrm partners. Here, conﬁdentiality concerns rise quickly to the surface, particularly in settings with small legal professions and in interviews that uncover sensitive private details related to political events or cases. Explaining the evolving relationship between domestic and international law. Elite interviews in fragile states may also reveal connections between domestic and international law (see, e.g., Massoud 2014, Merry 2006). In her book on International Criminal Court interventions in Uganda and Sudan, Nouwen (2013) ﬁnds a circulation of contradictory meanings of the legal principle of complementarity (that international criminal institutions may intervene only when a state fails to prosecute international crimes domestically). Drawing in part on her experience as a diplomat in Sudan for the Dutch government, she begins her book acknowledging her position and the struggles of ﬁeldwork, reﬂexivity, and self-exposure: The painful reality is... I was “yet another student earning a PhD on others’ backs,” searching for information—some Sudanese and Ugandan interviewees’ last possession—against a backdrop of the rapacity of colonialism, of national elites, and of armed groups. This inequality cannot be remedied by the gratuitous observation that I “care.” (Nouwen 2013, pp. 3–4) Ethnography Bridging theory and data, ethnography is the close observation of human behavior in a particular political, social, economic, and legal landscape, which the researcher later interprets through his or her writing (Stephens 2009; on “deterritorialized ethnography,” see Merry 2006, pp. 28– 35). Ethnographies provide “portraits of diversity in an increasingly homogenous world” (Van Maanen 2011, pp. xvii–xviii). Three areas of ethnographic work on law in fragile states stand out: ethnographies of human rights discourse, ethnographies of work and labor, and comparative ethnography. Ethnographies
of human rights discourse. Through close observation of legal aid clinics in Malawi, Englund (2004, 2006) exposes the challenges of human rights discourse in contexts overcome by inequality and poverty. Poor people learn to feel state-enforced inequality through the medium of lawyers and international aid groups that reinforce that inequality. In conﬂict-affected states, the discourse of rights segregates legal elites who are able to marshal that discourse from the marginalized masses educated in rights-awareness workshops (Massoud 2011). Using ethnographic data gathered in encampments for persons displaced by civil war in Sudan, Massoud (2016b) also reveals how Islamic law and human rights law play out as competing discourses of salvation for Sudan’s poorest populations. Ethnographies of work, labor, and rights. Ethnography may capture how labor shapes legal consciousness in fragile states. Countering research suggesting that marginalized persons are unlikely to name their injuries, blame them on others, and mount legal claims (Felstiner et al. 1980), Boittin’s (2013, p. 247) ethnographic methods reveal that sex workers in China “are extremely aware of the injustice of the abuse they experience, and are quick to identify the perpetrators www.annualreviews.org • Fieldwork on Law in Fragile States 93 as responsible.... They have even occasionally engaged in collective action protests.” In South Sudan, war survivors working with international aid groups learn about the force of the law, not merely from their human rights work, but also from their routine ofﬁce work, including by signing employment codes of conduct, adhering to ﬁnancial reporting mechanisms, and creating project codes and spreadsheets (Massoud 2015). Comparative ethnography. Ethnography may be comparative across time periods or geographic spaces.Studiesofcustomarylaw,forinstance,maynecessarilycrossnationalboundariesandepochs (Isser 2011). Amar’s “political ethnography” of Cairo, Egypt, and Rio de Janiero, Brazil, draws on his experiences as a journalist and with the United Nations to show how the global rights discourse promotes gendered, heteronormative, and racialized formations of security in the global South (Amar 2013). Ethnographic research in HIV clinics in Uganda, South Africa, Thailand, and the United States reveals how transnational norms around the legalization of medicine diffuse into and out of the global South (Heimer & Morse 2016). Archival Research Research questions do not always begin with the arrival of a ﬁeld researcher. History—of people, the events they shape and that shape them, and the politics surrounding their interactions with one another—is central to people’s encounters with and stories of law (see, e.g., Mawani 2012). Linking the ethnographic present with the historical past paints a more vivid, grounded, and contextualized picture of law’s claims to authority, particularly in places with turbulent colonial and postcolonial histories (see, e.g., Nordstrom 2002, p. 4; Sachs 2013; Solomon 2015). Archival research may involve collecting texts or compiling descriptive statistics using ofﬁcial data (see, e.g., Massoud 2013, pp. 231–35). Materials in conﬂict-affected and authoritarian states, though, may be destroyed, hidden, or taken by ofﬁcials or even researchers who fail to leave copies (Weiss 2010, pp. ix–x; see also Ledeneva 2013, pp. 17–18). Documenting the history of a legal profession. Archival research reveals changes in the political functions of the legal community. During my ﬁeldwork in Sudan, I spent time in Khartoum, the capital city, hand-counting with a government ofﬁcial the number and date of all those who entered the Sudanese bar since Sudan’s 1956 independence from colonial rule, along with accessing the number of courts and court cases in the country, by year. What I found was a surprising story about how the number of lawyers, courts, court cases, and law schools increased dramatically under the rule of President Omar Hassan al-Bashir, who took power by military force in 1989 (Massoud 2013). Uncovering the history and meanings of legal concepts. Historical records may also expose how people, including elites with resources and skills, give meaning to legal concepts and how those meanings are contested (Massoud 2016a). Rajah (2011, 2012), for example, uses the case of Singapore to show how a politically repressive state, across postcolonial time periods, suppresses legal rights and restricts associational activities using discourses of legality and order, paradoxically building up the authoritarian state’s legitimacy. She uses a combination of written materials, including judicial opinions, legislation, and the words of state ofﬁcials. Similarly,
Cheesman’s (2015, p. 11) research uses court records and case material from Myanmar to ﬁnd that the meaning of the rule of law— a “global idiom”—depends on the local context and actor who uses that idiom, although it is often pitted against the related concept of law and order. Why seek out written records during ﬁeldwork? Cheesman (2015, p. 14) writes, “Juridical practices bind their subjects, and one another, through written record keeping. Each moment in a juridical or administrative 94 Massoud process brings forward a document or form for someone to complete and place on ﬁle. These forms... are... expressions of power.” Accounting for gender, family, and property law. Written records have also inﬂuenced studies of the legal treatment of gender, family, and property, particularly in conﬂict-affected and authoritarian states. Lake and colleagues (2014, 2016) explain why courts have remained functional in the eastern Democratic Republic of Congo, an archetypical “collapsed state” where she has conducted archival and interview-based ﬁeldwork. Judicial attention to mass rapes and other forms of sexualand gender-based violence has increased in the region because of state fragility and the inﬂuence of international aid groups arriving with targeted human rights programs (Lake 2014, p. 516). Hanson (2016) also uses court records and newspaper reports (along with interviews) to explain how judges facilitated Kazakhstan’s real estate boom, despite widespread regime expropriation (for the related case of property rights in Russia, see Gans-Morse 2012). Similarly, court records in Egypt, Israel, and India reveal that “fundamental rights and liberties” for women and ethnic minorities erode when the state interprets religious family laws (Sezgin 2013, p. 10). As with interview-based and ethnographic methods, there are limits to what archival research in fragile states may reveal. In his book on “warlord politics” in Africa, Reno (1998, p. ix) explains that government data may be incomplete or may fail to include covert or shadow transactions. Similarly, the reliability of local newspapers and media reports must be balanced against the likelihood of editorial bias (Reno 1998, p. x; see also Nordstrom & Robben 1996). LONG-TERM CHALLENGES Scholars have offered considerable advice to those embarking upon ﬁeldwork (for a few examples, see Kapiszewski et al. 2015, Luker 2008, Mazurana et al. 2013, Sriram et al. 2009, Stephens 2009). This section offers a preliminary list of speciﬁc issues to consider before, during, and after ﬁeldwork on law in fragile states. Before Fieldwork A researcher has a variety of tasks to consider before ﬁeldwork, including deﬁning the terms of the scholarly debate, understanding local context, and anticipating ethical and disciplinary challenges that may emerge. Deﬁning the terms of the debate. Before conducting ﬁeldwork, a researcher may wish to deﬁne relevant terminology, including the boundaries of the inquiry and what aspects of law or courts are of interest. Table 2 lays out a few preliminary deﬁnitions that may help some researchers get started. Others may wish to use ﬁeldwork to question how these and related terms function or are interpreted by legal actors in fragile states (see, e.g., Cheesman 2015). Is the primary concern, for instance, legal institutions, legal personnel, legal order, legal politics, rule of law, or some combination? The researcher might also ask what layers of law—for example, subnational law, national law, international law, customary law, or religious law—exist in the research site, and what kind of research may be most suitable to the question under investigation. Additionally, consider what topics, debates, or regions may be too dangerous to investigate. Depending on resources, time, security, and access, a preliminary visit may generate new questions and concepts to study. Understanding the research questions, goals, and methods. The period before ﬁeldwork ought to help to clarify a project’s research question and the most appropriate research design and case selection for that question (see, e.g., Ho & Rubin 2011, Kritzer 1996). Particularly true www.annualreviews.org • Fieldwork on Law in Fragile States 95 Table 2 Six legal concepts and the multiple features of law (Massoud 2013, p. 21) Concept Deﬁnition Law A set of norms, rationales, values, and techniques encouraged or imposed to manufacture social, economic, or political stability; ensure predictability and accountability in governance; and/or promote social change for the beneﬁt of the oppressed (e
.g., norms prescribing rules of property transfer, contract, crime) Legal system A set of procedural and substantive rules for constructing and interpreting law (e.g., common law, civil law, canon law, and Islamic or Judaic law) Rule of law A structure of governance rooted in the normative belief that law exists to conﬁgure and constrain social, economic, and political relations and to resolve disputes peacefully, often (but not always) coexisting with contemporary values of human rights and democracy Rule by law A structure of governance in which law exists at the service of government ofﬁcials, rather than as a force that constrains state behavior Legal order An interconnected web of formal and informal laws, legal systems (common law, religious law, customary law), personnel (judges, politicians, lawyers, civil society activists), institutions (courts, prisons, NGOs), and technologies that establish and maintain the state Legal politics The use and promotion of legal tools, practices, arrangements, and resources to achieve political, social, or economic objectives (e.g., constructing courts, teaching the poor about law, or altering a legal system or legal order) for those researchers with high-demand legal and methodological training, consider the ethical issues that may emerge, including conﬂicts of interest and how these may impact a researcher’s goals, objectivity, and ability to gather information. That is, partnering with or consulting for an organization may reveal new sources of information (see, e.g., Branch 2011). But being funded by them may create bias or a perception of it. Consider these statements made privately to me by an academic who writes reports for aid groups in conﬂict zones: “These are policy documents and not academic articles. I wasn’t my own boss... so the outcome—as probably always is [in] consultancies—is... a compromise between being critical and being practical, and working within the parameters of ” the funding organization. The period before ﬁeldwork is a time to be aware of and, if possible, minimize these and other potential conﬂicts of interest that may emerge in the ﬁeld. Situating the project in the context of history, space, and disciplinary boundaries. The period before ﬁeldwork may also be a helpful time for understanding the history of a place, to enable a locally embedded approach. That history may reveal that so-called fragile states are not always fragile and not always states. Understanding the past may mean learning to communicate in local dialects or deciding to work through interpreters (Geraghty 1970, Wax 1980). It may be helpful to contact scholars who live in or have conducted ﬁeldwork in that place, to sort out visa requirements,placestostay,andlocalafﬁliations.Relatedly,considerthelimitsofone’sdisciplinary or interdisciplinary training or biases (Harrington & Merry 2010). Does the research, for instance, treat law as a repressive, autonomous, or responsive force, some combination, or neither (Nonet & Selznick 2001)? The period before ﬁeldwork is also a time to obtain institutional review board (i.e., human subjects) approval and to develop a communication plan and an emergency contact list with colleagues, advisors, and family members (Heimer & Petty 2010, Osanloo 2004, Wax 1980). During Fieldwork Conducting ﬁeld research on law in fragile states provides the opportunity to gather data, question assumptions, build expertise in a language or legal system, and understand human behavior in light 96 Massoud of the challenges and constraints that people face (Fluehr-Lobban 1987, pp. xii–xvi). Here, consider whether and how to build trust, maintain transparency, and be mindful of identity. Building trust. Building trust in a researcher and an inquiry is important for those studying sensitive topics like legal development or change in fragile states. Some scholars have suggested that partnering with local researchers, snowball sampling (Cohen & Arieli 2011), participating in group activities, and even taking advantage of family connections and networks may build trust, though each may also raise new risks (Chakravarty 2012). Others consider empathy and communicating risks to one’s human “subjects”—a potentially alienating term describing those who provide information to ﬁeld researchers (Cassell 1978, Clark 2012). Political, social, or legal instability and repression, along with the presence of international NGOs or multinational corporations, may make some research areas or subjects inaccessible, or may expose researchers to harm (see sidebar, Dangers of Field Research). Repression may also aggravate power differentials between researchers and vulnerable or marginalized populations (see, e.g., Cramer et al. 2016, Ford et al. 2009, Gentile 2013, Ho & Chua 2016, Pils 2015). Remaining transparent. In her work on judicial politics
in Africa, Ellett (2016) reveals that she “struggle[s] to be transparent” about her research with judges in postcolonial states. She reminds scholars to appreciate sampling bias, to understand that foreigners may be “treated more favorably than local researchers,” and to be mindful about the position of an interviewee: “Are we interviewing a young female judge in a volatile authoritarian setting, or a more senior male judge in a more competitive hybrid regime” (Ellett 2016, p. 30)? Drawing from ﬁeldwork in conﬂict zones across the Middle East, Romano (2006) also discusses the difﬁculty of transparency and the importance of making the research subject’s safety a priority and of asking questions rather than voicing opinions. Being mindful of identity. Harassment or discrimination, based on gender, gender identity, sexual orientation, disability, ethnicity, skin color, or some other characteristic, may occur during ﬁeldwork. Being attentive to how one is viewed by others, to one’s own vulnerabilities, and to the vulnerabilities of marginalized populations is especially important in authoritarian or DANGERS OF FIELD RESEARCH While studying transitional justice, memory, and the Sierra Leone Truth and Reconciliation Commission, Yale University doctoral student Artemis Christodulou suffered severe brain damage following a car accident in 2004; she has since been conﬁned to a wheelchair in her family home in Massachusetts, often communicating using physical gestures (Christodulou Family 2016). Additional urgent risks include harassment, detention, or disappearance (Scholars at Risk Network 2016). Some scholars have lost family members to political violence (Hirsch 2006). In 2016, the tortured and mutilated body of Giulio Regeni, a Cambridge University doctoral student conducting ﬁeld research in Egypt, was found in a roadside ditch near Cairo. News reports suggested Regeni’s dissertation on trade unions may have made him a target of regime supporters (Scammell & Michaelson 2016, Vogt 2016). In the context of a globalization of law and social science research alongside continued threats to academic freedom, university administrators and government leaders may have more prominent roles—balancing scholars’ needs to gather data with legal concerns about risk management—to raise awareness of, sanction, and ultimately prevent the most horriﬁc consequences of research (Pyper 2016). www.annualreviews.org • Fieldwork on Law in Fragile States 97 conﬂict-affected settings (see, e.g., Sriram et al. 2009; see also Esbrook 2015, Furman & Lake 2015). Here, and throughout the ﬁeldwork process, special issues may emerge during interviews or courtroom observations, when studying religious law, and while working with displaced persons in squatter settlements or with other marginalized populations (Abusharaf 2009, Blanck 1987, Cassell 1978, Clark 2012, Cohen & Arieli 2011, Cramer et al. 2016, de Sousa Santos 1981, Ellett 2016, Lyon 2014, Sriram et al. 2009). After Fieldwork The period after ﬁeldwork, particularly in fragile states, is an opportunity to problematize the research experience and one’s training, through a methodical analysis of data and a structured writing process. This work may involve intense reﬂection on ﬁeldwork, ethics, and identity. Reﬂecting on the ﬁeld research experience. Returning from a period of ﬁeldwork provides an opportunity to reﬂect upon one’s experiences and the challenges that arose in light of existing literature (Greenhouse 2006). In addition to what ﬁeldwork reveals, consider what it has not revealed, what has been said and not said, what has been resisted, and what was unexpected (Brisbin 2010). Consider how and where research results will be disseminated and the constraints related to reporting methodology in articles, books, and public presentations. Also contemplate whether the project will be written in a realist, confessional, impressionistic, or some other tone (Kritzer 2009, p. 284). Will it strive for descriptive completeness, general theoretical interpretation, or some combination (Kiser & Hechter 1991)? Reconsidering ethical obligations. Ethics is as crucial in the analysis and write-up of a project on law in fragile states as it is before and during ﬁeldwork (Greitens 2015). There are, of course, risks in publication, including violations of conﬁdentiality (Cassell 1978; see also Ford et al. 2009, Yashar 2015). Consider how data will be securely stored and managed, including sensitive material, and who will have access to it. Will interviews be transcribed in the original language or English?
If data are coded, consider a variety of qualitative data analysis software programs. (ATLAS.ti, a Microsoft Windows–based application, and NVivo, for Windows and Mac operating systems, are robust and high-cost software packages. TAMS Analyzer, developed by Matthew Weinstein of the University of Washington, is a free software program for Macs.) Recalling one’s position and audiences. Scholars of ﬁeld research have discussed the importance of reﬂecting upon one’s position before, during, and especially after ﬁeldwork (Baldwin & Davis 2005). One’s personal identity characteristics, disciplinary backgrounds, passions, hopes, political inclinations, and ideologies may have created or constrained access and intent while in the ﬁeld. Even a particularly difﬁcult interview or seemingly unimportant set of data may provide, on another look, a story that forms the basis of an article or book. Ultimately, as said to me by a Somali lawyer struggling for justice under adverse conditions, ﬁeldwork reveals that “knowledge has no identity. It is important to learn from everyone.” LOOKING AHEAD Fieldwork has been indispensable for research on law and courts in conﬂict zones and authoritarian states. Mindful that much sociolegal work in this area is still to come, this article concludes with three broad suggestions. 98 Massoud First, as Law and Society Scholarship Globalizes, Consider Targeted Training on Fieldwork in Fragile States Scholars continue to call for more attentive study of and training on ﬁeld research related to law and courts in conﬂict zones and authoritarian states (Blanck 1987, Koch 2013). But empirical legal studies, particularly qualitative methods, occupies a small space in law schools and graduate programs (Bradney 2010, pp. 1028–29; see also Baldwin & Davis 2005, pp. 881–82). Especially important, including for professors who advise doctoral students, is to promote a question-driven adoption of qualitative methods, rather than a dependence upon qualitative methods due to, for instance, a lack of skill or training in quantitative methods. General training in research design includes how to identify research questions and scholarly interventions and how to translate research questions into interview questions suitable to the inquiry. Hands-on training on ﬁeldwork in fragile states—using, for instance, news reports, travel advisories, preliminary meetings, initial site visits, and questionnaire pretests—would help researchers determine which cases, sites, research subjects, and interview questions may be off limits. Methodological study may also amplify the intersectionality of race, gender, religion, and law alongside the “dynamic, multidimensional, and uneven nature of rights” (Kawar & Massoud 2012, p. 34; see also Carbado & Roithmayr 2014, Osanloo 2004). The syllabus repository at the US-based Law and Society Association is helping to promote focused methodological training in this ﬁeld. Second, Hold Conferences and Events in the Global South and Earmark Additional Funding for Scholars from Fragile States The US-based Law and Society Association is cosponsoring a conference in Africa, and Harvard Law School’s Institute for Global Law and Policy has held its ﬁrst-ever regional meetings in Latin America (in 2015) and in Africa (in 2016), allowing scholars from these regions to interact with, learn from, and teach scholars from North America and Europe. As research and communication across national boundaries continue to globalize, these events, along with collaborative research networks and related conference panels, are likely to increase in number, content, and scope. Travel grants and awards may continue to facilitate interaction and participation, including by bringing together a diversity of scholars from fragile states. Third, Write Widely about Research Processes and Methods, Not Only in Methods-Oriented Work A surprising number of pieces I reviewed for this article had little or no discussion of methods, leaving open to the reader to interpret how the author spent his or her time in the ﬁeld, and how productive it actually was. But the norms surrounding qualitative methods, including how, where, and why to report research processes, such as interviews, are changing (see, e.g., Bleich & Pekkanan 2013). Fieldwork, and writing about it, can be among a scholar’s most demanding and rewarding experiences. In law and social science, explaining methodological choices enables practitioners and consumers of ﬁeldwork-based scholarship to appreciate the impact of these choices on substantive ﬁndings, as well as the beneﬁts and challenges of data collection and human interpretation. Debates over methods may also help to historicize sociolegal ﬁeldwork and the ways it potentially reﬂects policy goals and power interests. Prominent discussions of methods will ultimately allow ﬁeldwork-based studies of law in fragile states to have greater impact on the global diversity and outlook of sociolegal studies, and the kinds of research questions that can be
asked and answered by scholars interested in centering or decentering law’s power. www.annualreviews.org • Fieldwork on Law in Fragile States 99 SUMMARY POINTS 1. The ﬁeld of law and courts in conﬂict zones and authoritarian states lies at the intersection of three areas of scholarship: a. Concerns in social science about analyzing conﬂict, civil war, and authoritarian rule. b. Debates in law and society over the politics of law and courts and the social roles of legal institutions and legal personnel. c. Explanations of methods. 2. Field research on law and courts in conﬂict zones and authoritarian states—as in more stable environments—is shaped by a constellation of factors: a. The clarity and focus of the research question under investigation. b. The author’s approach, interests, identities, disciplinary audiences, afﬁliations, and ability to access people and materials. c. The social, political, economic, and historical context of the author’s background and study. 3. Prior to embarking upon a ﬁeldwork-based study of law in fragile states, consider the long-term challenges that may emerge before, during, and after ﬁeldwork. 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 Zaid Al-Ali, Naazneen Barma, Elsa Devienne, Rachel Ellett, Dan Ernst, Paul Frymer, Leslie Gerwin, Tim Lovelace, Sherally Munshi, Genevieve Painter, Benjamin L. Read, Perry Sherouse, and Rachel Stern for feedback. Sarah Sakha provided research assistance. Earlier versions of this article were presented in 2016 at Princeton University’s Program in Law and Public Affairs and in 2015 at the American Political Science Association’s Designing and Conducting Field Research Workshop. This article would not be possible without the kindness of respondents where the author has conducted ﬁeld research, including in Sudan, South Sudan, and Somalia/Somaliland. LITERATURE CITED Abel RL. 2010. Law and society: project and practice. Annu. Rev. Law Soc. Sci. 6:1–23 Abel RL, Lewis PSC, eds. 1996. Lawyers in Society: An Overview. Oakland: Univ. Calif. Press Abusharaf RM. 2009. Transforming Displaced Women in Sudan: Politics and the Body in a Squatter Settlement. Chicago: Univ. Chicago Press Amar P. 2013. The Security Archipelago: Human-Security States, Sexuality Politics, and the End of Neoliberalism. Durham, NC: Duke Univ. Press Baldwin J, Davis G. 2005. Empirical research in law. In The Oxford Handbook of Legal Studies, ed. M Tushnet, P Cane, pp. 880–900. Oxford: Oxford Univ. Press Bartels BL, Bonneau CW, eds. 2015. Making Law and Courts Research Relevant: The Normative Implications of Empirical Research. New York: Routledge Blanck PD. 1987. The “process” of ﬁeld research in the courtroom: a descriptive analysis. Law Hum. Behav. 11(4):337–58 100 Massoud Blatmann C. 2015. Political scientists are debating a new initiative to make research more trustworthy. Here’s why I’m skeptical. Washington Post Monkey Cage Blog, Nov. 9. https://www.washingtonpost.com/ news/monkey-cage/wp/2015/11/09/political-scientists-are-debating-a-new-initiative-to-makeresearch-more-trustworthy-heres-why-im-skeptical/ Bleich E, Pekkanan R. 2013. How to report interview data. In Interview Research in Political Science, ed. L Mosley, pp. 84–108. Ithaca, NY: Cornell Univ. Press Boittin ML. 2013. New perspectives from the oldest profession: abuse and the legal consciousness of sex workers in China. Law Soc. Rev. 47(2):245–78 Borneman J, Hammoudi A, eds. 2009. Being There: The Fieldwork Encounter and the Making of Truth. Oakland: Univ. Calif. Press Bradney A. 2010. The place of empirical legal research in the law school curriculum. See Cane & Kritzer 2010, pp. 1025–43 Brady HE, Collier D, eds. 2010. Rethinking Social Inquiry: Diverse Tools, Shared Standards. Lanham, MD: Rowman & Littleﬁeld. 2nd ed. Branch A. 2011. Displacing Human Rights: War and Intervention
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INTRODUCTION What is legal socialization? At the most basic level, it is the process whereby people develop their relationship with the law (Tyler & Trinkner 2016). At its core, legal socialization assumes the law is an essential institution within the fabric of the social environment, one that is just as important in terms of ordering society, guiding human behavior, and facilitating interpersonal interactions as the home, the school, and other social institutions (Tapp & Levine 1974). And, as with social institutions more generally, learning about the law and how to relate to it is an important part of growing up in any society. The study of legal socialization is concerned with understanding how this process occurs and how variations in socialization lead to variations in adult orientations toward the law. How individuals are socialized determines how they interface with the legal system. Depending on their experiences, individuals will consent to or reject legal authorities and institutions (Piquero et al. 2005), affecting their engagement in law-related behavior (Fagan & Tyler 2005). Invariably the law is better able to fulﬁll its purpose of maintaining social order when people accept its authority and follow it. Thus, a key question in legal scholarship is how to get people to obey the law. Research ﬁndings increasingly show the importance of supportive legal values and attitudes in promoting legal compliance and cooperation (Cohn et al. 2010, Jackson et al. 2012, Murphy et al. 2009, Papachristos et al. 2012, Sunshine & Tyler 2003, Trinkner & Cohn 2014). This suggests the possibility of a legal system that uses an approach grounded upon people’s internal dispositions as a basis for securing their acceptance of the law. This approach emphasizes consent, where citizens obey the law not because of force and coercion, but rather because they feel it is their duty and obligation to do so (Tyler 2009). The legal system can facilitate a consent-based orientation by engaging with citizens in ways that embody societal notions about justice and fair play (Tyler 2006a). However, to be effective, a consent-based approach requires a population that has acquired appropriate societal norms about the law and legal authority (Tyler 2006b). This important development begins during childhood and adolescence as children begin to form their conceptions of authority. As a consequence, the viability of consensual approaches to maintaining social order via the legal system depends upon the orientations that children and adolescents develop toward the law. Value and attitude acquisition occurs during the legal socialization process as young people develop their understanding and beliefs about laws/rules, the institutions and procedures that create laws/rules, and the agents within those institutions responsible for implementing rules and maintaining social order (Trinkner & Cohn 2014). This early understanding is the blueprint for individuals’ ideas about how they should interface with the legal system, including both the role of the law (e.g., its purpose and function) and their role as citizens (e.g., their responsibilities and expectations as members of society; Tapp & Levine 1974). This dynamic forms the basis for how people deﬁne the legitimate exercise of legal authority and how legal authorities can secure consent from those they govern. The viability of consensual approaches to maintaining social order through the legal system depends upon the orientations that children and adolescents develop toward the law during legal socialization. WHY FOCUS ON LEGAL SOCIALIZATION? Societal trust in social institutions, including the law, has been declining for decades. However, criminal justice policies over that time span have relied on strategies that minimally impact citizens’ trust in legal authorities. The ﬁeld of legal socialization can provide insight on both of these issues given its emphasis on understanding how values and attitudes about the law and legal system are initially acquired (Tapp 1991) and how legal institutions can leverage that understanding to promote self-regulation among citizens (Tyler 2009). 418 Trinkner· Tyler Declining Trust in the Social Environment Classical social theorists have all emphasized that society beneﬁts when there is a greater degree of mutual cooperation among citizens and legal, political, economic, and social institutions (Durkheim 1973, Easton 1965, Freud 1930, Weber 1968). This is especially true in the case of maintaining social order via the criminal legal system. Law is particularly important in modern societies in which most of the interactions occur among strangers who lack the types of long-term personal relationships with other people that characterize traditional societies (Tapp & Levine 1974). Because the law represents formalized codes of conduct, it serves to guide behavior and facilitate interactions among people who are not necessarily joined together through shared customs and local informal norms. The task of maintaining social order through law is made considerably easier when citizens trust the law and legal authorities (Tyler 2006a). Trust reﬂects citizens’ conﬁdence in the intentions of the legal system, its authority, and its competence
in maintaining control and resolving conﬂicts among members of society (Hardin 2006). When individuals trust the law, they accept it as a source of formal social control and defer to its rules and authority (Tyler & Huo 2002). The issue of trust is especially pertinent to the legal system today because there is a great deal of evidence that trust in societal institutions, including the law and government more generally, is declining and has been for decades (Gallup 2015, Pharr et al. 2000, Smith & Son 2013). In the case of the federal government, the presidency and Congress have slowly lost public conﬁdence over the last 40 years (NORC 2015). Indeed, a recent poll found that Americans had more favorable attitudes toward cockroaches and trafﬁc jams than Congress (Public Policy Poll. 2013). Even the Supreme Court, which has typically fared well in the court of public opinion, has recently become less trustworthy in the eyes of citizens ( Jones 2015a). Similarly, national-level social institutions as varied as religious institutions, the press, and ﬁnancial institutions have all seen declining trust within the public (Smith & Son 2013). Typically local institutions have remained more trusted than national ones (Pew Res. Cent. 2013, 2014). The law has beneﬁtted from this because legal institutions in the United States, particularly law enforcement, have traditionally been local in nature (e.g., Reaves 2011). For example, the level of public trust in the police has remained more or less steady for the last 20 years (Gallup 2015). However, although unchanging, the level of support has remained at 50– 60% conﬁdence, suggesting that there is considerable mistrust. This is particularly striking given that crime has decreased dramatically during the same time period (Zimring 2007), indicating that trust in law enforcement is not solely determined by the ability of legal authorities to stop crime. Additionally, there continue to be striking discrepancies (often 25–30%) in police trust between whites and nonwhites (Pew Res. Cent. 2014). Recent highly visible discord around police shootings of minorities illustrates both the existence of substantial mistrust in the police, particularly among minorities, and the social costs of that mistrust (Trinkner & Goff 2016). Overall, Americans live in an era of increasing mistrust, and the issue of understanding how trust can be fostered and maintained is at a premium. As trust becomes more central in efforts to understand how our legal institutions can be more effective (see Ramsey & Robinson 2015), questions about the acquisition and leveraging of legal values will inevitably become more salient. In many respects, trust in the law is a function of one’s values concerning the purpose or role of law within society and the application of power as a means of social control (Tyler & Trinkner 2016). People trust the legal system when they believe it embodies these values ( Jackson et al. 2012, 2013; Tyler 2006a; Tyler & Huo 2002). Such values are imparted early in the legal socialization process and then maintained or undermined by continued experiences during adolescence and adulthood. www.annualreviews.org • Legal Socialization 419 Neglect in Legal Scholarship Despite the centrality of attitudes and values in fostering trust, consent, and obedience among the population, modern legal scholarship has mostly ignored the role of legal socialization in facilitating cooperative behavior between citizens and the law. In large part, this neglect is due to the dominance of deterrence-based approaches within the criminal legal system. The effectiveness of these approaches relies on surveillance and the threat of sanctions (Tyler et al. 2015). Rather than fostering voluntary consent from citizens, deterrence is aimed at securing compliance from the population through the application of punishment and force (i.e., coercion). The focus in legal scholarship on deterrence is misplaced for several reasons. First, because deterrence relies on the threat of sanctions to induce compliance, it is expensive. A criminal justice system based on deterrence will need (a) an extensive network of surveillance to monitor the population for any potential wrongdoing, (b) a massive deployment of law enforcement among the public to ensure a credible threat of punishment, and (c) an enormous system of incarceration to make sure those threats are followed with action (Garland 2001, Tyler 2009, Tyler et al. 2015). Second, the effectiveness of deterrence in reducing crime is limited. On one hand, research has shown that deterrence can be effective in shaping law-related behavior (Chalﬁn & McCrary 2014, Nagin 1998). However, on the other hand, those effects tend to be weak and are outweighed by the inﬂuence of other nonlegal factors (MacCoun 1993
, Paternoster 2006). Thus, deterrence can work, but only when society has the resources to create and maintain effective systems for surveillance, apprehension, and punishment of wrongdoers and is willing to deploy them (Meares 2000). More importantly, a reliance on deterrence undermines people’s proclivity to self-regulate their behavior (Tyler 2009). By focusing on the instrumental rewards and punishments of behavior, it encourages people to behave in ways that maximize their self-interest. Over time, this focus functionally diminishes the importance of internalized norms about social order and personal obligations in producing compliance and cooperation with the law (Tyler 2004). As a consequence, continued reliance on deterrence will necessarily require an ongoing and ever-expanding system of surveillance and enforcement as people learn to respond to the external consequences of their behavior instead of being guided by their internalized values and attitudes. This issue is particularly problematic because the law necessarily depends on the self-regulation of most citizens to maintain social order given the fact that it cannot be everywhere at all times (Easton 1975, Parsons 1967). Alternatively, a greater focus on the values and attitudes that bond the population to the legal system stands to be more effective and less costly than focusing on deterrence. People are more likely to follow the law and consent to legal authority because of their internalized standards and views of the legal system, rather than their fear of punishment (Meares et al. 2004; Sampson & Bartusch 1998; Tapp 1991; Tyler 2004, 2009). Similarly, when they believe the law and its agents represent societal values of justice and fair play, they view the system as a legitimate, necessary, and even desirable form of social control ( Jackson et al. 2012, 2013). Their beliefs about what is appropriate behavior—on the part of themselves and the law—foster feelings of responsibility and obligation to uphold the law. As a result, they voluntarily comply with the legal system and consent to the power of its authority without the need for coercion or threat of sanctions (Tyler 2006a). Indeed, research has consistently shown that individuals’ values and legal attitudes are better predictors of legal behavior compared with sanction-related judgments (Cohn & White 1990, Fagan & Tyler 2005, Huq et al. 2011, Sunshine & Tyler 2003, Tyler & Fagan 2008, Tyler & Jackson 2014). Perhaps more importantly, they uphold the law even when legal authorities are not present (Sunshine & Tyler 2003). In short, they encourage people to self-regulate, reducing the need for constant surveillance and deployment of law enforcement, and ultimately leading to reduced costs for society (Tyler 2009). 420 Trinkner· Tyler WHAT IS LEGAL SOCIALIZATION? Focusing on legal socialization draws attention to the period of childhood and adolescence when individuals are developing their initial orientation toward the idea of law and legal authority. Through the interplay of natural maturation and a broad array of situational experiences, youth acquire law-related values, attitudes, and reasoning capacities that give meaning to their sociolegal environment. Building a Relationship with the Law As a ﬁeld, legal socialization is founded on the idea that the law, given its function in ordering society and enabling social interaction, is an essential piece of the social environment (Tapp 1976, Tapp & Levine 1974). Thus, the legal system—a tangible representation of the law in the form of individuals and institutions—is viewed as an important social institution in its own right, on par with any of the other institutions that make up society (e.g., family, school, or religion). As is the case with these other institutions, people gain information about their position and role within society from the legal system when they grow up, and this then forms the basis of their relationship with the law ( Justice & Meares 2014, Tyler & Trinkner 2016). Individuals’ orientations toward the law and legal authority are a function of how they deﬁne this relationship. Fundamentally, the relationship between the people in society and the legal system is reciprocal in nature in that it encompasses both the institutional rights and roles of the law, but also those of the individual (Tapp 1976). A person’s relationship with the law involves not only their understanding of the duties and purposes of the law as a means of formal social control but also their responsibilities and obligations as members of society. These messages are transmitted through the process of legal socialization (Tyler & Trinkner 2016). How individuals learn to deﬁne their relationship with the law has two important ramiﬁcations. First, legal socialization affects legal and law-related behavior. As we discuss later, when people develop a healthy relationship with the law that is stable and based on mutual respect and shared values, they are more likely to support the legal system,
comply with laws, and cooperate with legal authority (Fagan & Tyler 2005, Jackson et al. 2013, Piquero et al. 2014, Trinkner & Cohn 2014, Tyler & Fagan 2008). In these cases, people are motivated by the values that are transmitted during the legal socialization process, i.e., by leading to feelings of obligation and consent to legal regulation. However, when the relationship that people have with legal authority is characterized by dominance and force, it is more situationally variable and instrumentally focused; i.e., people are more likely to reject the premise of legal authority and obey the law only when they have a tangible sense that they are likely to be caught and punished for breaking it. Individuals with this orientation toward the law engage in higher levels of criminal and deviant behavior (Carr et al. 2007, Gau & Brunson 2010, Kirk et al. 2012). People with a coercive orientation are motivated by their assessment of the risks and beneﬁts of obeying the law, regulating their behavior and cooperating with legal authorities when it beneﬁts their self-interest (Tyler 2004). Second, legal socialization develops conceptions of the purpose and function of the law within society (Tapp 1991). In doing so, it inevitably instills expectations about how the legal system and its agents are supposed to behave to fulﬁll that role. These expectations are reﬂected in societal norms concerning the appropriate use of power ( Jackson et al. 2012) and are the basis for conceptions of justice and fair play (Tyler 2009). To the extent that people believe these expectations are met and the law engages with the public in a fair manner, they are willing to support it and uphold their responsibilities as citizens ( Jackson et al. 2013, Tyler 2006a). However, when the law is seen as unfair and oppressive, people will have little motivation to cooperate with its authorities or www.annualreviews.org • Legal Socialization 421 follow its dictates (Rattner et al. 2003). Thus, legal socialization is not about fostering blind obedience within the population, but rather about stimulating a critical compliance whereby people are motivated to voluntarily follow the law to the extent that it embodies the norms upon which it is based. The key point is that there are two interrelated elements supporting a consensual relationship with the law. The ﬁrst is the development of a value-based framework within individuals that supports cooperation with law and legal authority. This involves an understanding of why law is important and feelings of obligation toward existing law and authorities. The second is a legal institution that fulﬁlls the role of law in society and exercises its power in just and fair ways. Consent emerges from the interplay of this dynamic. People do not learn unthinking compliance, but rather willingly defer to authorities they believe are entitled to exercise authority and are exercising it in an appropriate manner. Elements of Legal Socialization There are three primary elements of the legal socialization process: the internalization of lawrelated values (Fagan & Tyler 2005), the formation of legal attitudes (Cohn & White 1990), and the development of legal reasoning capacities (Tapp & Levine 1974). Although conceptually distinct, these three elements are dynamically related and mutually reinforcing. The acquisition of values is a central component of the legal socialization process (Cohn & White 1990, Fagan & Tyler 2005, Hogan & Mills 1976, Tapp & Levine 1974, Tyler & Trinkner 2016). Society has normative standards about the legal system and its function as a source of formal social control. These standards are a reﬂection of how legal authorities are supposed to act toward citizens and vice versa. This includes not only the moral and social underpinnings of actual laws but also ideas about the ideal nature of legal authority and its use of power to restrict the public’s behavior, as well as citizens’ roles in responding to that authority. Value-based standards are transmitted through the acquisition of legal values early in life and act as guiding principles of justice, liberty, and control as individuals mature into adulthood and come into contact with the legal system (Tyler & Trinkner 2016). Ultimately, they form the basis upon which people decide if the legal system is a legitimate institution entitled to obedience and deference ( Jackson et al. 2012, 2013; Tyler 2006a,b). These values establish a two-way relationship through which people learn that they should respect the law and defer to legal authority when that authority is being exercised in a way that is appropriate. Conversely, legal authority itself has a deﬁned scope and rationale, and its institutions and authorities are constrained in terms of when and how they are entitled to impinge on people’s lives (Meares et al. 2016). Legal socialization also includes the formation
of legal attitudes. People’s legal attitudes encompass their perceptions of both the tangible manifestations of legal authority (e.g., police ofﬁcers) and abstract legal ideals (e.g., the rule of law), aspects of the law that they encounter in their everyday lives (Cohn & White 1990, Tyler & Trinkner 2016). Unlike values, which reﬂect notions about how people and legal institutions should behave, attitudes reﬂect individuals’ positive and negative evaluations of the system and its authorities. They serve as judgments about how institutions and authorities actually behave. People’s legal attitudes are an expression of their support of legal rules and the policies in place to enforce them (Cohn & White 1990); their trust and conﬁdence in police ofﬁcers, judges, and other authority ﬁgures (Sunshine & Tyler 2003); and, more fundamentally, their support for or cynicism about legal institutions and the idea of law itself (Piquero et al. 2005, 2014). Whereas values are largely internalized early in the life course and mostly solidiﬁed by early adulthood (Piquero et al. 2005), attitudes are comparatively more malleable. People continue to 422 Trinkner· Tyler have direct or vicarious contact with the legal system throughout their lives, presenting them with more opportunities to have legal socialization experiences and from them gain additional information with which to modify their evaluation of the system and its agents (Meares 2009; Tapp 1987, 1991; Tyler et al. 2014). At the same time, the legal system itself is not a static entity. On the contrary, its composition and policies continually evolve as society changes (Sklansky 2005, 2006). For example, practices that were viewed favorably at one point in time may not be supported later on (e.g., Saad 2014), or attitudes may change in response to the implementation of new practices (e.g., Gao 2015). The ﬁnal element of the legal socialization process is the development of legal reasoning capacities (Cohn & White 1990, Finkenauer 1995, Tapp & Kohlberg 1971, Tyler & Trinkner 2016). Fundamental to this development are the formation and expansion of cognitive schema containing individuals’ conceptions and understanding of laws, rights, and legal responsibilities. This framework encompasses not only one’s idealized conception of the principles of the rule of law but also a practical and grounded understanding of the everyday realities of law enforcement in response to direct and indirect experience. In essence, people’s legal reasoning capacity functions as a personal jurisprudence, providing a lens through which they can deﬁne, interpret, and make decisions about their relationship with the law and legal authority (Tapp 1991). Importantly, legal reasoning provides meaning to one’s sociolegal environment (Cohn & White 1992, White 2001). Individuals are not simply empty vessels waiting to be ﬁlled up with values and attitudes, but rather are actively engaged with the legal world in an effort to construct a model of order and social processes that aligns with their lived experiences. It is people’s legal reasoning capacities that allow them to use the values they have acquired and the attitudes they have formed to make sense of their legal environment. In doing so, these abilities are a crucial component of how people understand the appropriate role for the law as a social institution in society (Cohn et al. 2012). Moreover, the capacity to reason allows for the critical evaluation and the continuous assessment of the purpose and function of law and justice (Tapp 1987, 1991). It is an understanding of the purpose and function of law that motivates adults to sacriﬁce in support of the law (e.g., follow laws to ﬁght in wars, pay taxes, and not rob banks), while at the same time being unwilling to support legal authorities when they exercise their authority in illegitimate ways. Authorities as Lynchpins Given that legal socialization is rooted in basic developmental processes, it is naturally driven by biology and maturation (Hogan & Mills 1976, Tapp 1991). For example, during adolescence and early adulthood individuals go through tremendous neurological growth that inﬂuences the way they make legal judgments and self-regulatory decisions (Scott & Steinberg 2010), directly inﬂuencing their ability to participate within a sociolegal world that requires reasoning about appropriate conduct, controlling of emotional states, and evaluating abstract and complex procedures (Grisso et al. 2003). Of course the situations people are in and the environments they experience are just as (if not more) important to legal development as the natural process of maturation (Trinkner & Cohn 2014). Situational inﬂuences also follow a general developmental arc
in which individuals start in a relatively informal rule environment (i.e., the family), but encounter more formal contexts and authorities (e.g., the school, the legal system) as they grow older (Tyler & Trinkner 2016). The tenor or quality of interactions with these authorities will fundamentally shape the course of legal socialization (Levine & Tapp 1977). Earlier experiences create an initial framework for understanding and relating to rules and authority systems, something that becomes more formal with age. The key point is that individuals do not learn about the law just by maturing, but also by www.annualreviews.org • Legal Socialization 423 interacting with institutions and authorities, both legal (Fagan & Piquero 2007, Fagan & Tyler 2005) and nonlegal (Trinkner & Cohn 2014). Legal authorities (e.g., police ofﬁcers) are particularly important to the legal socialization process because they are usually tasked with enforcing rules. Because of this role, they spend much of their time in direct contact with citizens and represent the face of the law in everyday life more than any other aspect of the legal system (Skogan & Frydl 2004). People experience teachable moments during which legal authorities communicate messages about the roles of citizens and the legal system within society ( Justice & Meares 2014, Tyler et al. 2014). In doing so, they serve to clarify each individual’s relationship with the legal system. At the same time, they also facilitate the formation of values and attitudes and stimulate the growth of legal capacities by providing a venue to acquire, apply, challenge, and reﬁne their understanding of the meanings of justice, rights, and the rule of law (Fagan & Tyler 2005, Tapp & Levine 1974, Trinkner & Cohn 2014). Scope of Legal Socialization Legal socialization is a ubiquitous process that is not constrained to interactions solely within the legal realm, despite its name (Trinkner & Cohn 2014). It is part of a larger, more general set of socialization processes through which people experience various forms of relationships with authority and rule-based social institutions (Tapp 1991). As noted earlier, the legal system is one fundamental part of a broader social environment that is made up of many different institutions. These institutions are intricately related in that they create a “network of rule systems that are in practice ‘legal’ in nature” (Tapp & Levine 1974, p. 35). Functionally speaking, this means that people are constantly exposed to rule creation and enforcement throughout their daily lives, all of which provides them with information about their relationship with authority and rules as general social concepts. More speciﬁcally, it suggests that the way individuals understand and deﬁne their relationship with the law is dependent to an extent on their prior experiences outside the formal legal world. In other words, the internalization of law-related values, formation of legal attitudes, and development of reasoning capacities are facilitated by experiences in nonlegal contexts as well as legal contexts (Trinkner & Cohn 2014). Two key nonlegal contexts are the home and school. Socialization about rules and authorities can happen informally—e.g., when parents discipline their child for violating a rule—or formally—e.g., learning about the purposes and function of the law in a civics class (Tapp & Levine 1977). Such nonlegal experiences provide important information about how individuals are expected to interface with authority ﬁgures and help develop expectations about how the law and legal system should use power and authority to enact social control within society (Rios 2011, Tapp 1987). As a result, a complete understanding of the legal socialization process requires an examination of these sources of rule-based experience outside the scope of formal law and their impact on the relationship between individuals and the law. In addition to its ubiquity, legal socialization is also a continuous process in that it occurs across the entire life span—in childhood, adolescence, and adulthood (Fine & Cauffman 2015, Hogan & Mills 1976, Tapp 1991). People are sensitive to law-related concepts even at very early ages. For example, infants have been shown to be aware of norms of fairness (Bloom 2013). Similarly, young children understand that laws can (and sometimes should) be violated in certain instances (Kohlberg 1963). This education continues as children transition into adolescence, a period characterized by the increased questioning of authority (Darling et al. 2008) and greater deﬁance of rules as teenagers begin to exert their autonomy (Mofﬁtt 1993). These forms of limit testing are common among adolescents and represent the normal growth of how individuals learn 424 Trinkner· Tyler to live in a world of formal and informal rules (Casey 2015). The good and bad decisions made during this time
shape the way people understand the boundaries of their autonomy and the need for self-regulation. It is for this reason that the overwhelming number of adolescents who commit minor crimes as they develop their understanding of limits and self-control eventually mature out and become normal law-abiding adults (Mofﬁtt 2007). However, because teens and young adults have a greater propensity to push boundaries and violate rules, they are also more likely to come into contact with various elements of the criminal justice system. Indeed, adolescents and young adults are most likely to engage in criminal activity and be arrested for such behavior (Steffensmeier & Ulmer 2002). This propensity, coupled with the psychological changes occurring during this period, make adolescence a critical period in legal development (Cohn & White 1990, Tyler & Trinkner 2016). Contact at this time can dramatically affect people’s understanding of the legitimacy of legal authority (Fagan & Tyler 2005) and cynicism toward the law (Carr et al. 2007). At the same time, it can also draw adolescents deeper into the justice system, which itself is associated with a greater likelihood of future criminal conduct (Petrosino et al. 2010). Although many studies suggest that childhood and adolescence are developmental periods associated with great change in attitudes and values (e.g., Krosnick & Alwin 1989), legal socialization continues to transpire even during adulthood. Societal norms, as well as formal laws, about appropriate behavior on the part of the legal system and citizens change. For example, Americans’ views about marijuana consumption have reversed over the last decade (Saad 2014). Even when norms or laws do not necessarily change, attitudes can still shift in response to current issues and controversies. For example, the last few years have seen public trust in government (Gao 2015) and the police ( Jones 2015b) wane in response to perceived abuses of power (e.g., mass surveillance and police violence). Moreover, during adulthood people shift from being subjects to agents of legal socialization (Tapp 1976). This role shift can potentially change the way people view laws, the application of power, and authority relationships (Tapp 1991). TWO APPROACHES TO LEGAL SOCIALIZATION Recent analyses of legal socialization make a core distinction between two orientations toward legal authority: coercive and consensual (Tyler & Trinkner 2016). These orientations develop in response to different approaches used by the law to exert social control. Each approach represents a distinct model of the psychology underlying the relationship between people and the legal system. Coercive Orientation The coercive orientation is driven by an approach that is rooted in a rational choice understanding of human behavior (Becker 1976, Gibbs 1968, Nagin 1998). This approach assumes that people are instrumentally motivated to behave in ways that promote their self-interest. That is, people engage in behavior to the degree that it maximizes reward and minimizes punishment. The focus here is on the consequences of people’s behavior choices under varying situational contingencies, with people shaping their behavior toward the law in terms of their estimates about the personal gain and loss associated with different actions. This includes breaking the law if the promised rewards override any potential risk of punishment, for example, if they believe they are unlikely to be caught and punished. From this perspective, the ultimate function of the law and legal authority is to motivate people to be law-abiding citizens by ensuring that the rewards of illegal behavior never outweigh the costs. www.annualreviews.org • Legal Socialization 425 A relationship built on dominance. This approach promotes a relationship with legal authority in which power is concentrated in state actors and institutions (Tyler 2009). Here, power is used to alter the contingencies of people’s risk calculations to get them to obey laws and cooperate with legal actors. Although this could be done by reducing the potential rewards or increasing the potential costs of illegal behavior (Brezina 2002), the coercive approach typically uses the latter, relying on the threat and fear of punishment to communicate the risk of breaking the law (Collins 2007, Pratt et al. 2006). This focus on magnifying the costs of illegality is on display in deterrence-based strategies to reduce crime, featuring things like increased police presence (e.g., hot spots policing; Braga 2005), increased likelihood of incarceration (e.g., mandatory minimums; Schulhofer 1993), and increased harshness of penalties (e.g., “three strikes” laws; Tyler & Boeckmann 1997). Through their experiences with a coercive approach, people come to deﬁne their relationship with the law in terms of consequences, risks, and the exercise of power and control (Tyler & Trinkner 2016). A coercive relationship with the law is predicated on the display of dominance where those in power expect obedience above all else and punish swiftly and accordingly
if they do not receive it, regardless of situation or context. When people understand their relationship with the law only in rational terms, they are encouraged to behave in ways that are linked to their personal gains and losses rather than uphold social and personal norms of appropriate behavior (Tyler 2009). Thus, people become motivated to follow the law only to the extent that they believe they will be caught and punished, requiring a more pervasive system of surveillance to maintain that threat (Tyler 2004). Effects of coercive authority. As people come to associate the legal system with harsh punishment and the threat of force, their relationship with the law becomes more antagonistic and unstable. Faith in the role of the legal system as a means of protecting the public and resolving conﬂict breaks down (Collins 2007). Rather than fully accepting the rule of law, people question its position in society as a source of social control and its authority to dictate appropriate behavior (Anderson 1999, Fagan & Tyler 2005). Under these conditions, alienation and resentment are bred between the public and law enforcement (Delgado 2008). Although individuals may condemn illegal behavior on a personal level, they become increasingly cynical about the ability of the legal system to offer any security or justice (Sampson & Bartusch 1998). What effect does a coercive approach to legal socialization have on law-related behavior? As we noted previously, the instrumental focus at the heart of this model can be effective when sufﬁciently large resources are devoted to surveillance and sanctioning; however, it is resource intensive and limited by the ability of society to create and sustain credible systems of authority and punishment. More problematically, research with youth and adults in both legal and nonlegal contexts has shown that a reliance on sanctions and force can actually encourage criminal and other rule-violating behavior (Hoeve et al. 2009, Huizinga et al. 2004, Petrosino et al. 2010, Piquero & Pogarsky 2002, Trinkner et al. 2012). This effect is ampliﬁed when those punishments are delivered in a harsh, disrespectful, or otherwise unfair way (Sherman 1993). An extensive body of literature has shown that the cynical attitudes and perceptions of illegitimacy that arise from a tumultuous relationship between individuals and the law that characterizes coercive authority are associated with increased illegal behavior (Fagan & Tyler 2005, Jackson et al. 2013, Kirk & Papachristos 2011, Kirk et al. 2012, Tyler 2006a, Tyler & Jackson 2013, Tyler et al. 2014). Consensual Orientation A second orientation is consensual in nature and rooted in the acquisition of supportive legal values (Tyler & Trinkner 2016). This model is based on an approach that assumes behavior is 426 Trinkner· Tyler best motivated by individuals’ internalized beliefs about what is right and appropriate authority rather than their instrumental concerns and self-interest (French & Raven 1959, Jackson et al. 2013, Tyler 2006a). Here, people understand the importance of the law in ordering society and recognize its authority to make rules and control behavior. When people hold this orientation they are less concerned about the risks or rewards associated with their conduct and instead focus on their felt responsibilities to accept the law and defer to the decisions of legal actors (Easton 1965, Kroneberg et al. 2010, Weber 1968). A consensual orientation encourages the acceptance of the law as a moral force and the belief that society works best when it has a fair criminal justice system and a population that follows the rule of law. From this perspective, the law is best served when it facilitates the adoption of supportive legal values. A relationship built on values. In a consensual orientation, the relationship between individuals and the law is based not on risks, dominance, and force but rather on internalized legal values that reﬂect the kind of relationship with authorities that people want and expect to have (Tyler & Trinkner 2016). These expectations give shape to the parameters of that relationship and provide a conception of what appropriate authority and the exercise of acceptable authority look like. To the extent that the legal system meets these expectations, people voluntarily recognize its authority and consent to its power (Beetham 1991, Huq et al. 2016, Tyler & Jackson 2014). Fundamentally, a consensual approach to legal socialization recognizes the importance of not only instilling values that foster a conception of appropriate and legitimate authority but also ensuring that the law and its authorities exemplify those values when engaging the public. People have to be motivated to defer to legitimate authority; they need to have a framework through which they can decide whether a particular authority is legitimate, and using that framework they need to evaluate existing authorities and judge them to be legitimate and entitled to be obey
ed. Although research on legal values is vast and diffuse, recent scholarship has highlighted three dimensions of values that are essential in shaping one’s relationship with the law (Tyler & Trinkner 2016). The ﬁrst dimension of legal values taps into how people expect legal authorities to make decisions. As a source of formal social control, the law has a tremendous amount of power over the lives of individuals. It can temporarily suspend people’s rights via arrest and/or incarceration, extract property by leveling ﬁnes and seizing assets, and legally use (deadly) force to resolve conﬂict. Given the potential impact of using this power and that the use of it is in large part at the discretion of the legal system, people care about how legal authorities make decisions (Tyler 2006a). In a consensual orientation, people are more likely to accept the rules and directives of the law when authorities administer them neutrally, consistently, and in ways that are transparent and understandable to those involved (Tyler 2000). This includes paying attention to rule following/breaking, reacting to it in ways that are similar over time and people, and being willing to explain how rules are enforced in particular instances. Additionally, people want to be given the opportunity to participate when rules are made and applied (Anderson & Otto 2003, Cohn et al. 2000, Thibaut & Walker 1975). They want a chance to express their concerns and to be given the opportunity to provide explanations for their viewpoint and grievances. These decisionmaking features communicate a relationship founded on securing acceptance instead of forcing compliance. The second dimension of legal values taps into people’s concerns about how legal authorities should treat them. Membership in a community carries with it entitlement about the quality of treatment by public ﬁgures. Authorities play an important role in validating the self-image and self-worth of the people over whom they exercise authority by providing information about their status, standing, and inclusion in relevant social collectives (Tyler & Lind 1992). Beyond the simple application of rules, the actions of legal authorities communicate broader socially relevant www.annualreviews.org • Legal Socialization 427 information to subordinates ( Justice & Meares 2014). In all these contexts, subordinates react to inferences about the character and motivation of the authority, trying to discern if that person is sincere, caring, and worthy of their trust and deference (Tyler & Huo 2002). A key message of a consensual approach is one of reassurance, which is communicated to the public via the interpersonal treatment of legal actors (Tyler & Trinkner 2016). This includes treating people with respect and dignity, being open and honest, and showing care and concern for people and their speciﬁc situations (Tyler 1997). Behaving in this way demonstrates that authorities are acting in the interest of the public. Fair treatment is a reﬂection of one’s social standing, so its presence or absence during interactions with the law provides a message about one’s standing in the community, including inclusion in the rights framework of citizens and having positive status within the group ( Justice & Meares 2014). It communicates benevolent intentions and the motivation to develop a relationship based on mutual understanding and cooperation rather than dominance and control. The third dimension of legal values encompasses people’s beliefs about the boundaries of legal authority. People do not cede complete control to authorities—legal or otherwise—across all situations and behaviors (Smetana 2002, Tyler & Trinkner 2016). Instead they demarcate their lives into different domains and put limits on the degree to which authority ﬁgures will be allowed to regulate their behavior. Although these domains can and do overlap with formal laws establishing the legal standards of authorities to intervene in individual’s lives, they are conceptually distinct. For example, just because a law may grant a legal right for police ofﬁcers to engage in a behavior, people will reject their power to do so if they feel it oversteps the appropriate role of the law. Recent public clashes in the United States over the use of technology for mass surveillance highlight this distinction. For a consensual agreement of cooperation to arise from the public, the law must recognize individual autonomy and privacy (Tyler & Trinkner 2016). People expect the law to respect the boundaries of its authority. When they feel it has encroached on domains that are off limits, they reject its authority and position in society as a source of social order (Huq et al. 2016). With its normative authority rejected, the law will likely have to resort to force to secure compliance (Kroneberg et al. 2010), exacerbating the problem further. At the same time, people have to agree to sublimate their autonomy and relinquish control to the law in certain instances so that it can maintain social order (Tyler & Trinkner 2016). This is done not only for the health and safety of the individual but also for
the well-being of the community as a whole. A consensual approach promotes mutual understanding on the part of both parties about the range of situations and behaviors over which the law can exert its authority. Consensual authority and legitimacy. A consensual model of legal authority relies on the acceptance of the need to have and defer to external authority. However, people that are consensually oriented do not mindlessly accept the law’s claims to power and the right to regulate their behavior (Tapp & Levine 1970). Instead, people engage in a process of evaluation through which they interrogate legal authority in regard to those values outlined above (Beetham 1991, Tyler & Trinkner 2016). This involves consideration of the degree to which laws and legal authorities make fair decisions, treat people with dignity, and exercise their power in appropriate arenas and behaviors. When individuals believe the behavior of the legal system aligns with their normative values about appropriate behavior, they view the law as a legitimate social institution entitled to make rules and exercise power in terms of regulating people’s behavior ( Jackson et al. 2013). As a result, people feel obligated to defer to those rules when determining how to act (Tyler 2006a,b). Importantly, that deference is given voluntarily and not in reaction to fear of punishment or 428 Trinkner· Tyler promise of reward (Tyler 1997). In this way, a consensual approach leads to a more cooperative, trusting, and stable relationship between the population and the law, one in which people are more willing to actively engage in tasks that build their communities economically, socially, and politically (Tyler & Jackson 2014). Even more importantly, the legitimacy that arises from a consensual approach to legal socialization promotes the self-regulation of behavior by the citizenry. Because people acknowledge the legitimacy of law, they are more willing to accept the decisions of legal authorities (Gibson & Caldeira 1995) and cooperate with them to maintain social order (Tyler & Fagan 2008), for example, by reporting crime and criminals, by being a witness or juror, or by copolicing through programs such as neighborhood watches. People are also less likely to violate the law when they believe in its legitimacy ( Jackson et al. 2013, Tyler 2006a). This is true even when legal authorities are not physically present (Sunshine & Tyler 2003), reducing the necessity of the costly surveillance that is central to coercive approaches. Indeed, an impressive array of literature from a variety of countries and institutional agencies has linked the perception of legitimacy to reduced engagement in criminal and rule-violating behavior (see Hamm et al. 2016, Tyler & Jackson 2013 for review). SPHERES OF AUTHORITY As they move through their lives, young people deal with a progressively wider array of different authorities. Initially beginning with their interactions with parental authorities in the home, they next encounter teachers and the school system and eventually move on to legal authorities in the juvenile justice system, such as police ofﬁcers and judges.1 This trajectory reﬂects an increasing remoteness and formality in authority encounters (Tyler & Trinkner 2016). Although children usually have long-term repeated contact with their parents, their experiences with legal authorities are typically one-time encounters with strangers fulﬁlling a particular role. Teachers fall somewhere in between depending on the age of the child and structure of the school. Although these authorities exist within distinct contexts, they nonetheless inﬂuence legal development because each sphere incorporates a set of (formal and/or informal) rules to control behavior and manage conﬂict (Tapp 1991, Tapp & Levine 1974). Variations in how power is wielded within and across each of these domains provide new experiences that either reinforce or contradict the internalization and development of supportive legal values and attitudes (Tyler & Trinkner 2016). These variations serve to create different reactions to attempts at control from authority ﬁgures. What is striking is that consistent themes emerge within the research on each of these authority types, despite researchers having distinct theoretical frameworks and largely ignoring the work outside their respective area (Trinkner & Cohn 2014). Regardless of the type of authority in question, a consensual approach to behavior regulation fosters legitimacy and voluntary deference, whereasacoerciveapproachleadstohigherlevelsofrejection,mistrust,andrule-violatingbehavior (Tyler & Trinkner 2016). Parental Authority Many parents raise their children through mechanisms of coercion characterized by inconsistent and nontransparent rule enforcement, the use of physical punishment to secure compliance, 1We recognize that there are other spheres of authority that likely shape legal socialization. We focus on parents, teachers, and legal actors because they have received the most attention in prior literature (e.g., Levine & Tapp 1977, Trinkner & Cohn 2014). www.annualreviews.org • Legal
Socialization 429 undigniﬁed and disrespectful treatment, and an overall uncaring demeanor (Regalado et al. 2004, Straus & Donnelly 2001). All of these practices fail to create supportive attitudes and values, leading to the rejection of authority (Trinkner & Cohn 2014, Trinkner et al. 2012) and engagement in antisocial and illegal behavior (Earls 1994, Fraser 1996, Gershoff 2002, Gershoff & Bitensky 2007, Newman et al. 2008, Patterson & Yoerger 1993) that can continue into adulthood (Straus & Donnelly 2001). However, children are especially open to socialization efforts when their parents treat them in caring and respectful ways (Darling & Steinberg 1993), create and administer rules in a neutral fashion encouraging participation (Trinkner & Cohn 2014), and recognize the limits of their ability to regulate behavior (Smetana 2002). These strategies facilitate the acquisition of values and feelings of responsibility to maintain social order by promoting the legitimacy and acceptance of authority (Darling et al. 2008, Jackson & Fondacaro 1999, Trinkner et al. 2012, Tyler & Trinkner 2016), and lead children to have favorable attitudes toward their parents as authorities. Unsurprisingly, consent-based parenting is also associated with lower delinquency (Hoeve et al. 2009) and legal cynicism (Trinkner & Cohn 2014), indicating that its beneﬁts are not limited to the home. School Authority A similar dynamic emerges in schools with respect to teacher and administrative authority. Schools have increasingly come to rely on coercion and a zero-tolerance attitude to manage their students (Arum 2003, Hirschﬁeld 2008, Mukherjee 2007, Rios 2011). Whereas controlling disruptive behavior used to be the province of school authorities, it is now likely to elicit criminal sanctions, resulting in the “school-to-prison” pipeline (Morris 2012). This approach to student control has been shown to be associated with a cold and hostile climate within schools where students feel alienated from the administration and reject the authority of their teachers (Arum 2003, Gregory & Ripski 2008, Hyman & Perone 1998, Mukherjee 2007). Ironically, these coercive tactics can actually encourage student misbehavior (Mayer & Leone 1999, Way 2011), particularly toward authority ﬁgures (Gregory & Weinstein 2008). However, when a school climate is focused on instilling supportive values and attitudes through respectful treatment, fair decision making, and recognition of limited power, students are more likely to consent to attempts to regulate their behavior (Chory-Assad & Paulsel 2004a, Tyler & Trinkner 2016). Teachers are more likely to be trusted and viewed as legitimate authority ﬁgures entitled to obedience (Arum 2003, Gregory & Ripski 2008, Trinkner & Cohn 2014), and students are less likely to be aggressive and hostile toward school authorities and other students (ChoryAssad 2002, Chory-Assad & Paulsel 2004b, Gendron et al. 2011). Fair and equitable treatment within schools has also been linked to the adoption of supportive civic values and attitudes (Resh & Sabbagh 2014a,b) and less engagement in illegal behavior ( Jenkins 1997). Legal Authority Like the adult system, the juvenile justice system has also shifted to a more coercive approach to regulation based on deterrence rather than a consensual approach based on value acquisition and maintenance (Slobogin & Fondacaro 2011). For example, bringing adolescents into greater levels of contact with the legal system (Fagan et al. 2010) and using adultlike sanctions (Fagan & Zimring 2000) and punitive youth interventions have all become more prevalent (Mackenzie et al. 2001). These strategies have been shown to have little effective impact on the volume of juvenile crime as a whole (Scott & Steinberg 2010). At the same time, contact with the formal legal system 430 Trinkner· Tyler has been associated with an increase in future delinquent and adult criminal behavior (Aizer & Doyle 2015, Huizinga et al. 2004, Petrosino et al. 2010). Further compounding the problem, many young people report that legal authorities are cold, indifferent, disrespectful, and/or hostile (Carr et al. 2007, Humes 1997). Such experiences exacerbate the perception that the legal system is fundamentally unfair (Gau & Brunson 2010, Trinkner & Goff
2016) and limit the ability of legal authorities to build trust and legitimacy within the youth community (Hinds 2007, 2009). The result is an antagonistic relationship with the law in which authorities are viewed as something to be feared and avoided (Stoudt et al. 2011–2012). This undermines the integration of youth into law-abiding communities and the adoption of the norms and values that are a central part of membership (Aizer & Doyle 2015, Anderson 1999, Fagan & Tyler 2005). However, it does not have to be like this. The law would be better served if legal authorities recognized that interactions with young people are opportunities to transmit and reinforce supportive values and foster favorable attitudes (Tyler et al. 2014). As we noted earlier, to the extent that legal authorities are cognizant of how they treat young people, how they make decisions, and in their respect for boundaries, they can facilitate the development of youth’s understanding of the legitimacy of the law and their trust in legal actors (Tyler & Trinkner 2016). Such an approach is far more likely to instill the feelings of responsibility and obligation that are needed to develop into productive members of society (Tyler 2006a, Tyler & Jackson 2014). The Romance of Instrumentalism The potential advantages of consensual models aside, there is an ongoing clash about the desirability of these two styles of legal authority. In each sphere there are strong proponents of approaches to exercising authority that are associated with coercion. Among many families, physical authority is widely used (Regalado et al. 2004) and unquestioned obedience heralded as a key value for children to learn (Starks & Robinson 2005). In schools, strict rules and harsh discipline, including suspension and expulsion, are widely advocated, and most American high schools now contain school resource ofﬁcers who either are or take on the role of police ofﬁcers (Arum 2003). Juvenile justice authorities commonly exercise authority by projecting force (Carr et al. 2007), and intervention programs that often engage in humiliating and demeaning practices (e.g., Scared Straight) are widely popular, even spawning reality television shows (Vignati 2011). The popularity of instrumental approaches continues despite evidence that they do not build legitimacy or promote rule following. Corporal punishment is associated with a higher likelihood of future criminality (Straus & Donnelly 2001); strict rules in schools increase disciplinary problems (Arum 2003); school resource ofﬁcers do not change the rate of disorder among students (Kupchik 2010); programs such as Scared Straight do not reduce future criminal behavior (Petrosino et al. 2004); and greater contact with the juvenile justice system generally leads to more delinquent behavior, not less (Petrosino et al. 2010). In all of these arenas, the desirability of engaging in the styles of child-rearing that promote value acquisition and the development of favorable attitudes toward legal authorities is widely contested, even when research suggests that instrumental approaches are ineffective and/or that in contrast supportive values and favorable attitudes do promote law-abiding behavior among adolescents and adults. This suggests that a key aspect of any efforts to understand how society can generally create supportive values needs to be addressing the romance of instrumentalism, i.e., examining the origins of the exaggerated belief in the ability of sanctions and strict, physical discipline to promote law-abiding behavior. Although this model itself is open to question on its own merits, it becomes even more important to recognize its popularity as the legal system moves www.annualreviews.org • Legal Socialization 431 toward a model more focused on securing deference by building trust and legitimacy (Ramsey & Robinson 2015), behaviors strongly shaped by values and attitudes and largely unrelated to instrumental judgments (Tyler 2009). Public beliefs, even if factually unsupported, are still an important source of support for existing practices and an impediment to change. (SOME) FUTURE DIRECTIONS There continue to be several gaps within the ﬁeld that should be addressed by future scholarship. By its very nature, legal socialization is an interdisciplinary ﬁeld that is best served by the infusion of multiple viewpoints. However, at both the theoretical and empirical levels, it has been dominated by perspectives rooted in cognitive development (Cohn & White 1990, Tapp & Levine 1974) and social psychology (Fagan & Tyler 2005, Trinkner & Cohn 2014). The integration of other disciplines would go a long way toward broadening the ﬁeld and creating a more complete picture. There are many different areas that future scholarship could draw from in this regard. For example, although emotion was a key element in early theoretical discussions (Hogan & Mills 1976), it has been almost completely ignored since then (see Cole et al. 2014 for an exception), even
though an increasing amount of legal scholarship recognizes the centrality of emotion in how people think about and respond to the law (Bandes & Blumenthal 2012). Similarly, monumental advances in the biological and neurological sciences have already had a substantial inﬂuence on legal policy and advocacy (Grisso et al. 2003, Scott & Steinberg 2010), yet these advances have not generally been brought to bear on the legal socialization process. Perhaps most ironically, legal socialization has received scant attention from the disciplines of law and criminal justice (see Buss 2011, Justice & Meares 2014 for exceptions), areas that are well-positioned to address the practical reality of the everyday relationship people have with the legal system. Broadening the scope of legal socialization scholarship is not only related to the inclusion of more disciplines and perspectives; several areas within the ﬁeld deserve more attention as well. For example, legal socialization has long been theorized to be a lifelong process (Tapp & Levine 1974), yet with few exceptions (Tapp 1987) little research exists on the process in terms of adults. Although the focus on children and adolescents is warranted given that legal values, attitudes, and reasoning are largely adopted and developed during this time, people’s relationship with the law continues as they settle into adulthood and take on roles of authority, effectively becoming the socializers rather than the socialized (Tapp 1991). The current state of knowledge sheds little light on whether and to what degree this shift impacts people’s views of the law and the exercise of authority. A greater understanding of how legal values and attitudes are formed during childhood can aid examinations of the delivery of legal services during adulthood. Another area deserving attention concerns the outcomes of interest within legal socialization research. Although the ﬁeld has traditionally focused on the development of law-related cognitions, values, and relationships (Tapp & Levine 1977), more recent work has placed greater emphasis on tying this development to behavior (Fagan & Tyler 2005, Trinkner & Cohn 2014). However, even this work has been hampered by a narrow focus on compliance behavior. Although getting people to follow the law is an effective component of any legal system, it is not the only important outcome. Indeed, the law has difﬁculty functioning if people are not willing to cooperate and work with legal authorities to address neighborhood problems (Tyler & Fagan 2008). Moreover, recent years have seen an increasing number of people—especially young people—engaging in activism and becoming involved in reform movements. Although it seems likely that the motivation spurring this has its roots in legal socialization processes, these links have been neither identiﬁed nor explored. Finally, a key question for further study is how children deal with the conﬂicting approaches and messages about authority as they develop. As we have noted here and elsewhere (Trinkner & 432 Trinkner· Tyler Cohn 2014), legal socialization is dependent on experiences within multiple domains. This can present problems when the messages they receive are in conﬂict. For example, many Americans learn an idealized form of law that emphasizes its benevolence and fairness (e.g., “innocent until proven guilty”). At the same time, the daily experiences of many youths, particularly poor and minority children, directly contradict these messages ( Justice & Meares 2014). Children need to learn to balance the abstract and idealized visions of the rule of law against their everyday experiences with it on the street. How this balancing act plays out with regard to the legal socialization process is an open question. Conﬂicting messages can also occur across domains as well. Studies suggest that styles of authority can carry forward, for example, from family to school (Fondacaro et al. 1998) or from school to the law (Arum 2003, Rios 2011). However, little is known about the extent to which children experience conﬂicting messages about the exercise of authority across these domains (e.g., moving from a consensual school environment to a coercive legal interaction) and what impact, if any, such conﬂict has on how they think about and understand the purpose of the law and their relationship with the system. FINAL THOUGHTS Learning about the law is a central part of growing up in any modern society. This places a premium on understanding the legal socialization process and how people develop their relationship with the law, a central institution within the social fabric of society. Despite this importance, the ﬁeld of legal socialization has been largely ignored. This is unfortunate as the values, attitudes, and reasoning that people develop during this process form the basis of their orientation toward the law as adults (Tyler & Trinkner 2016). Throughout this review we have argued that legal relationships are best when they are built on messages of fairness and mutual respect. Such
relationships foster consent within the population, where people are not afraid of the law but rather trust in it and recognize its authority to regulate their behavior (Tyler 2006a, 2009). Ultimately, consent toward legal authority produces a social order in which most people usually follow the law because they want to, not because they feel they have to. However, the current legal system is largely built on a rational choice perspective that focuses on the consequences (e.g., costs and beneﬁts) of behavior rather than on the preferences (e.g., values and attitudes) that give rise to behavior in the ﬁrst place. Although this perspective was sufﬁcient when most people also had supportive values and attitudes in place to guide their actions and the reservoir of trust in the law and government was stable, that reservoir has been gradually depleted over time (Gallup 2015, NORC 2015, Smith & Son 2013). As a result, scholars, policy makers, and the public have increasingly focused on how to restore trust in the law and to rethink the primacy of a largely punitive deterrence model that promotes an instrumental relationship with the legal system (e.g., Ramsey & Robinson 2015). As this movement continues, legal socialization should be given more attention to better understand how the internalization and formation of supportive values and positive attitudes can be leveraged by the legal system and its authorities to better serve the needs of individuals and society as a whole. 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. www.annualreviews.org • Legal Socialization 433 LITERATURE CITED Aizer A, Doyle JJ Jr. 2015. Juvenile incarceration, human capital, and future crime: evidence from randomly assigned judges. Q. J. Econ. 130(2):759–803 Anderson E. 1999. Code of the Street: Decency, Violence, and the Moral Life of the Inner City. New York: Newton Anderson RA, Otto AL. 2003. Perceptions of fairness in the justice system: a cross-cultural comparison. Soc. Behav. Personal. 31:557–64 Arum R. 2003. Judging School Discipline. Cambridge, MA: Harvard Univ. Press Bandes SA, Blumenthal JA. 2012. Emotion and the law. Annu. Rev. Law Soc. Sci. 8:161–81 Becker G. 1976. The Economic Approach to Human Behavior. Chicago: Univ. Chicago Press Beetham D. 1991. The Legitimation of Power. London: Macmillan Bloom P. 2013. Just Babies: The Origins of Good and Evil. New York: Crown Braga AA. 2005. Hot spots policing and crime prevention: a systematic review of randomized controlled trials. J. Exp. Criminol. 1:317–42 Brezina T. 2002. Assessing the rationality of criminal and delinquent behavior: a focus on actual utility. In Rational Choice and Criminal Behavior: Recent Research and Future Challenges, ed. AR Piquero, SG Tibbetts, pp. 241–64. New York: Routledge Buss E. 2011. Failing juvenile courts, and what lawyers and judges can do about it. Northwest. J. Law Soc. Policy 6:318–33 Carr PJ, Napolitano L, Keating J. 2007. We never call the cops and here is why: a qualitative examination of legal cynicism in three Philadelphia neighborhoods. Criminology 45:445–80 Casey BJ. 2015. Beyond simple models of self-control to circuit-based accounts of adolescent behavior. Annu. Rev. Psychol. 66:295–319 Chalﬁn A, McCrary J. 2014. Criminal deterrence: a review of the literature. J. Econ. Lit. In press Chory-Assad RM. 2002. Classroom justice: perceptions of fairness as a predictor of student motivation, learning, and aggression. Commun. Q. 50:58–77 Chory-Assad RM, Paulsel ML. 2004a. Classroom justice: student aggression and resistance as reactions to perceived unfairness. Commun. Educ. 53(3):253–73 Chory-Assad RM, Paulsel ML. 2004b. Antisocial classroom communication. Commun. Q. 52:98–114 Cohn ES, Bucolo DO, Rebellon CJ, Van Gundy K. 2010. An integrated model of legal and moral reasoning and rule-violating behavior: the role of legal attitudes. Law Hum. Behav. 34(4):295–309 Cohn ES, Trinkner RJ, Rebellon CJ, Van Gundy KT,
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legal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination. 395 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION Scholars have called for a greater integration of empirical sociolegal scholarship on discrimination and critical race theory (CRT) (Carbado & Gulati 2003; Carbado & Roithmayr 2014; G´omez 2004, 2012; Kang 2005; Obasogie 2006). In this article, we show how these two literatures, especially when considered together, point to a mismatch between what is known about discrimination and the assumptions underlying equal employment opportunity (EEO) law. The result of this mismatch is that the most common forms of discrimination today are outside the reach of law. Because EEO law fails to regulate so many forms of discrimination, it in effect condones race- and gender-based inequalities in the workplace. Bringing the CRT and empirical sociolegal literatures together is especially important in the context of workplace discrimination. Both literatures examine the intersection of law and race, and many of the insights of CRT are also applicable to the intersection of law and gender. However, the two literatures have not always been in agreement. The empirical sociolegal literature has helped to uncover the ways in which discrimination and inequality operate in both the workplace and law (e.g., Best et al. 2011; Edelman 1990, 1992; Edelman et al. 2011; Hirsh 2009; Kalev et al. 2006; Kmec & Skaggs 2009; Quintanilla 2011; Stainback & Tomaskovic-Devey 2012). Yet CRT has often been skeptical of scientiﬁc claims to objectivity and neutrality (Carbado & Roithmayr 2014) and has been critical of efforts to measure race or discrimination empirically, criticizing in particular the use of race as an independent variable and the tendency to measure race as a binary phenotype (G´omez 2004, 2007; Haney-L´opez 1996; Obasogie 2006; Omi & Winant 1994). CRT scholars argue that because race is socially, politically, and legally constructed and because racial meanings are constantly in ﬂux (G´omez 2007, Haney-L´opez 1994), race is difﬁcult to measure, especially quantitatively. Instead of examining the impact of race on other social phenomena, CRT scholars argue that race and law are mutually constitutive and it is only through a sustained engagement with race that we can make sense of law (G´omez 2007). But, as we show in this essay, the two forms of scholarship also have much in common. Both literatures contend that although the status of people of color and white women has improved relative to the 1960s, substantial race- and sex-based inequalities persist, especially for groups who suffer intersectional disadvantages, or disadvantages based upon multiple characteristics. For example, black women suffer from multiple identity-based disadvantages that are different than those experienced by black men or white women. Considering them together is especially important in the context of civil rights in the workplace, where CRT scholarship offers important insights into the nature of racial discrimination (Carbado 2009; Carbado & Gulati 2000, 2013; G´omez 2010; Haney-L´opez 1994, 1996, 2007; Moran & Carbado 2008; Villazor 2008). We also contend that the empirical sociolegal and CRT literatures together point to a mismatch between the assumptions embedded in EEO jurisprudence and the reality of workplace discrimination and inequality in the twenty-ﬁrst century. First, whereas EEO jurisprudence assumes that most employment discrimination is based on the overt acts of a biased employer or supervisor, both the empirical sociolegal and CRT literatures point to widespread racism and sexism hidden within subtle yet pernicious modes of second-generation workplace discrimination, or those forms of discrimination linked to cognitive bias, patterns of interaction, and decision-making structures (Sturm 2001). Second, whereas EEO jurisprudence assumes that aggrieved employees can effectively remedy rights violations through the legal system, the empirical sociolegal and CRT literatures point out that very few employees who perceive that their rights have been violated seek redress through the legal system, and increasingly, those who do so fail to achieve it. Third, whereas EEO jurisprudence
is premised on the notion that the threat of liability will 396 Edelman· Smyth· Rahim motivate organizations to avoid discrimination, the empirical sociolegal literature suggests that organizational response to law is characterized by symbolic compliance together with practices that often perpetuate discrimination and inequality. CRT has not yet focused on organizational response to law, but this is an area that is ripe for a CRT contribution. Based upon our review of the empirical sociolegal and CRT literatures, we conclude that because of this mismatch between the assumptions underlying EEO jurisprudence and the reality of workplace discrimination, law in effect condones discrimination against women and men of color and white women, as well as other disadvantaged groups and employees who suffer multiple intersectional disadvantages (Crenshaw 1989). Thus, in contrast to several recent books that suggest that great progress has been made on civil rights in employment (Dobbin 2009; Epp 2009; Farhang 2010; Skrentny 2002, 2014), we add our voice to works that are more skeptical (Chen 2009, Edelman 2016, Stainback & Tomaskovic-Devey 2012). Although our article addresses work on civil rights in employment generally, much of the extant work focuses on Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e, et seq. (as amended)], which prohibits discrimination on the basis of race, color, sex, national origin, and religion. Other civil rights laws of the modern era include the Equal Pay Act of 1963 [29 U.S.C. § 206(d), et seq. (as amended)], which requires that women receive equal pay for work equal to that performed by male employees; the Age Discrimination in Employment Act of 1967 [29 U.S.C. § 621, et seq. (as amended)], which prohibits employment discrimination based on age (over 40); the Equal Employment Opportunity Act of 1972 [Pub. L. No. 92–261 (amends sections of 42 U.S.C.)], which expanded the power of the Equal Employment Opportunity Commission (EEOC); the Americans with Disabilities Act of 1990 (ADA) [42 U.S.C. § 12101, et seq. (as amended)]; the Civil Rights Act of 1991 [Pub. L. No. 102–166 (amends sections of 42 U.S.C. and 29 U.S.C.)]; and the Family and Medical Leave Act of 1993 (FMLA) [29 U.S.C. § 2601, et seq.]. In the next section, we outline the three major assumptions that undergird contemporary civil rights jurisprudence. In the following sections, we show how empirical sociolegal scholarship, CRT, and related literatures challenge these three assumptions. Finally, we conclude that the impact of the mismatch between the assumptions of civil rights doctrine and the reality of employment is that antidiscrimination law in effect condones many forms of discrimination by placing them outside of the law’s reach. THREE ASSUMPTIONS UNDERLYING EQUAL EMPLOYMENT OPPORTUNITY LAW Because much empirical sociolegal and CRT scholarship at least implicitly challenges the assumptions underlying EEO law, in this section we articulate three assumptions that have received the most attention in those literatures. These assumptions are that (a) most employment discrimination is based on the overt acts of a biased employer or supervisor, (b) aggrieved employees can effectively remedy rights violations through the legal system, and (c) the threat of legal sanctions will motivate organizations to avoid discrimination. The ﬁrst assumption underlying civil rights law is that most discrimination involves employers’ conscious intent to discriminate, an assumption that Freeman (1989) labels the perpetrator perspective. In part due to years of political controversy over the language, mechanisms of enforcement, and scope of the 1964 Civil Rights Act (Burstein 1985, Farhang 2010, Skrentny 1996), EEO laws are broad and ambiguous (Edelman 1992). Notably, EEO laws prohibit discrimination without deﬁning the term (Edelman 2016). Beginning in the early 1970s, courts developed several www.annualreviews.org • Legal Discrimination 397 legal theories for discrimination liability,1 but the two most common for cases alleging violations of Title VII are disparate treatment and disparate impact. In 1971, in Griggs v. Duke Power, the Supreme Court articulated disparate impact theory, which held that discrimination included practices that are facially neutral but have an adverse impact on a protected group. Although disparate impact theory created the possibility that civil rights jurisprudence would recognize structural forms of discrimination that did not involve overt intent, subsequent court decisions quickly began narrowing the applicability of that doctrine so that, today, only a small fraction of cases are brought under that theory. The most common theory of liability, introduced in 1973 in McDon
nell Douglas v. Green, is disparate treatment doctrine, which holds that discrimination is limited to those situations in which an individual perpetrator intends to discriminate. Because courts have systematically narrowed the circumstances under which employees may invoke disparate impact theory and have made it far more difﬁcult to prove disparate impact, the vast majority of EEO cases are brought under disparate treatment theory (Edelman 2016, Edelman et al. 2011, Krieger 1995).2 As we discuss in more detail below, the assumption that discrimination involves intent, or even an identiﬁable perpetrator and action, has encountered substantial criticism in both the empirical sociolegal and CRT literatures. The second assumption underlying civil rights law that has encountered criticism is rooted in the model of legal protection (Bumiller 1987), or the idea that aggrieved victims of civil rights violations will enforce civil rights legislation by ﬁrst perceiving their harms and then challenging their employers through administrative or litigation processes. Title VII of the 1964 Act created the EEOC to enforce civil rights legislation, but made the EEOC a weak administrative agency with meager resources and authority, heavily reliant on a private right of action in which individual citizens initiate lawsuits (Chen 2009, Farhang 2010). Whereas some see the creation of private rights of action as allowing greater ﬂexibility and creativity than a bureaucratic solution (Farhang 2010), other scholars point to the weaknesses of laws that rely on private litigation (Chen 2009, Edelman 2016). As we discuss below, there are numerous obstacles to mobilization, and the vast majority of employees who suffer employment discrimination do not pursue legal redress. Further, recent legal developments have made it even more difﬁcult for employees to exercise their legal rights. The third assumption is that the threat of lawsuits will motivate employers to take afﬁrmative steps to eliminate discrimination. Civil rights law generally assumes that organizations will act rationally to avoid both the cost of and the negative publicity associated with litigation (Becker 1971, Posner 1975). This assumption has been challenged by the sociolegal literature on law and organizations. As we discuss below, employers respond to law by implementing a set of “symbolic structures” (Edelman 1992), that is, organizational policies or ofﬁces that symbolize attention to law but that often serve to perpetuate discriminatory practices. THE NATURE OF DISCRIMINATION AND THE ASSUMPTION OF INTENT Whereas civil rights jurisprudence in most cases requires victims of discrimination to prove that their employers intended to discriminate, a growing body of empirical sociolegal and CRT 1These theories include individual and systemic disparate treatment theory; disparate impact theory; quid pro quo and hostile work environment harassment theory; and, for cases involving discrimination on the basis of religion or disability, reasonable accommodation theory. 2Without detailing the steps involved, it is important to note that the employee has the burden of proof throughout the litigation process (St. Mary’s Honor Center v. Hicks). 398 Edelman· Smyth· Rahim literature challenges the idea that discrimination is characterized primarily by overt intentional acts by identiﬁable perpetrators. Scholars illuminate forms of discrimination and race- and sex-based inequalities that arise from the structure of organizations and the labor market, from the social construction of race and gender, from implicit biases, and from institutionalized social patterns. Many of these forms of discrimination fall outside the bounds of EEO law. Structural Discrimination in the Workplace Much race and sex inequality is endemic to organizational structure. Empirical sociolegal research shows that race and sex segregation in the workplace and labor market, deﬁned as the percent of males and females (for sex segregation) or whites and nonwhites (for race segregation) who would need to change occupational categories to produce equal distributions of gender or race by occupation, limit the opportunities of women and minorities for promotions and higher-paying jobs (Baron & Bielby 1980, 1984; Bielby & Baron 1986; Stainback & Tomaskovic-Devey 2012; Treiman & Hartmann 1981). The 1964 Civil Rights Act led to signiﬁcant desegregation, but the effects have not been continuous. The greatest progress in job desegregation was made prior to 1980 for black men and black women and prior to 2000 for white women, with progress stalling after those dates (Stainback & Tomaskovic-Devey 2012). Workplace segregation is maintained through a variety of processes. Discrimination based on race and gender stereotypes tends to bar entry into certain job categories for either women or minorities (Baron & Bielby 1984, Gorman 2005, Reskin & Ross 1992). Indeed, until the passage of the 1964 Civil Rights Act, it was legal for employers to advertise for employees of a particular race or sex and to hire
on that basis. After the Civil Rights Act, discrimination continued to play a role in how ﬁrms assigned workers to jobs, perpetuating segregation (Reskin & Hartmann 1986). Reliance on informal networks and word-of-mouth hiring also tends to produce segregated workforces because social networks tend to be segregated (Braddock & McPartland 1987). Once employees are hired, moreover, a variety of personnel practices tend to perpetuate the impact of initial segregation. Internal labor markets or promotion systems within organizations that typically include job ladders, seniority rules, transfer policies, and job-posting practices tend to preserve the segregation that occurs at the entry level (Baron & Bielby 1985, Hartmann 1987). Subjective evaluations for hiring and performance perpetuate racism and sexism in the workplace, exacerbating the disadvantages of minorities and women (Bielby 2000, Gorman 2005, Nieva & Gutek 1980). Employers’ reliance on social networks to ﬁnd employees also perpetuates the impact of institutional racism and sexism (Reskin & McBrier 2000), and especially disadvantages racial minorities (Petersen et al. 2000). Experimental audit studies3 ﬁnd strong evidence of racial discrimination (Bertrand & Mullainathan 2004, Pager 2003, Pager & Quillian 2005), as do simulated hiring experiments (Dovidio & Gaertner 2000) and case studies of ﬁrms (Castilla 2008). Tokenism, or the inclusion of small numbers of women or minorities in a workplace, hinders success by making it harder for these employees to succeed. Tokenism has been shown to increase harassment, cause stress, create performance pressure, and bar men and women of color and white women from networks that provide critical communication and networking (Carbado & Gulati 2013, Gustafson 2008, Kanter 1977, Yoder 1991). Yoder (1991) suggests that tokenism alone is not the problem for women; rather, women are subjected to isolation and harassment because they are 3Audit studies are used to simulate market transactions under controlled conditions. Typically, two individuals (the auditors) are paired and sent to purchase a car, rent an apartment, or apply for a job. These individuals are trained to create identical personas that differ only in one observable way (e.g., race or gender) to determine the impact of that quality on the transaction. www.annualreviews.org • Legal Discrimination 399 perceived as threats to the current power structure by their white, male colleagues. Yet research also shows that male tokens in predominantly female occupations actually beneﬁt from being a numerical minority, because they may develop closer ties to their (typically male) supervisors or face pressure to move toward management themselves rather than stay in a role that is considered beneath them (Gustafson 2008, Williams 1992, Yoder & Sinnett 1985). Williams (1992) called this the glass escalator effect, in contrast to the glass ceiling faced by women in predominantly male occupations. Navigating Racial and Gender Identity in a Discriminatory Job Market CRT has identiﬁed a subtle form of discrimination that tends to penalize minorities who fail to “perform whiteness” by behaving, dressing, and associating with others in ways that are consistent with white norms. Employers tend to favor those minorities who downplay their outsider status by avoiding behaviors, dress, or patterns of association that are inconsistent with these norms (Carbado & Gulati 2000, 2013; Luo 2009; Yoshino 2002, 2006). A black woman may cover her identity, for example, by straightening her hair, an Asian by assuming a more Americansounding name, or a Latino by altering his speaking patterns to sound more like his white peers. Discrimination is based not strictly on phenotype but also on performance and perception, which can disadvantage minorities who are unwilling or unable to alter their language, dress, hairstyle, social networks, and afﬁliations to appear more culturally similar to whites. In a somewhat similar vein, empirical accounts of women in a predominantly male organization point to the complexities of negotiating gender expectations (Kanter 1977). Research suggests that women are penalized both for ﬁtting and for failing to ﬁt gender stereotypes (Eagly 2007, Eagly & Carli 2007), and the barriers to success are especially high for women of color (Sanchez-Hucles & Davis 2010). Professional women who behave assertively, for example, are often viewed as grating or overly ambitious, whereas the same trait in men tends to be viewed positively. However, women who behave in more traditionally feminine ways, exhibiting warmth or difﬁdence, tend to be seen as unimpressive (Eagly & Carli 2007). Similarly, women
who do not have children may be perceived as cold and uncaring, but women who opt to care for their children are perceived as putting their personal life ahead of their work (Albiston 2010). Sociologists of work and labor empirically support the idea that employers favor those employees who are culturally similar to themselves, showing that cultural similarities facilitate trust and comfort, generate feelings of excitement, help individuals to bond (Collins 1989, DiMaggio 1997, Erickson 1996), and affect how we evaluate merit (DiMaggio 1997, Lamont & Moln´ar 2002). Experimental methods show that sex and race inﬂuence evaluations of merit (Castilla & Benard 2010). Shared culture between employers and applicants affects employers’ decisions in urban employment settings (Neckerman & Kirschenman 1991). Hiring decisions in elite professional settings do not rest solely upon an evaluation of skills but also involve cultural matching (Rivera 2012). Cultural homophily leads employers to see applicants as a better ﬁt for the job, which generates more incentive for them to hire candidates with similar interests and backgrounds. Indeed, the very notion of “merit” is fraught with race, gender, and class biases, and “objective” measures of merit, like job placement tests, privilege those with preexisting cultural capital (Sturm & Guinier 1996). Implicit Bias Implicit biases are based upon unconscious stereotypes or associations. Social psychological research on implicit biases suggests that people tend to unconsciously associate minorities with 400 Edelman· Smyth· Rahim negative characteristics (Bodenhausen & Wyer 1985, Duncan 1976) in ways that are likely to encourage differential treatment in the workplace (Bertrand & Mullainathan 2004, Krieger 1995). Even without intent to discriminate, whites tend to understand other whites as being more qualiﬁed and responsible, and as having greater leadership capacities. Similarly, social psychologists point to the existence of implicit cognitive biases that result in unconscious or unintentional discriminatory behaviors (Fiske 2002, Fiske & Borgida 2008, Krieger 1995). The Implicit Association Test (IAT), ﬁrst reported by Greenwald et al. (1998), is the most well-known way of measuring implicit bias. The Race IAT shows that people who report that they have no bias against African Americans tend to associate European Americans with positive words or pictures and African Americans with negative words or experiences (Greenwald & Krieger 2006). Empirical studies, moreover, suggest that IAT measures are correlated with behaviors (Greenwald et al. 2009). Implicit bias affects memories, perceptions, attitudes, and stereotypes, without intent or conscious bias (Banaji & Greenwald 1995, Greenwald & Krieger 2006, Hamilton & Trolier 1986). Institutional Racism Biases also manifest at a societal level, where CRT scholars point to institutional racism, or widespread understandings and stereotypes that put racial minorities at a disadvantage (HaneyL´opez 2000). In this model, institutional racism occurs when social actors follow institutionalized, or generally accepted as normal, scripts and paths based on widespread understandings of appropriate behavior (Haney-L´opez 2000). Institutional racism is able to sustain itself in large part through a widespread, and often unconscious, investment in white supremacist ideology. Here white supremacy is not meant to describe a conscious belief system held by hate groups. Instead, it is “a political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and nonwhite subordination are daily reenacted across a broad array of institutions and social settings” (Ansley 1989, p. 1024). White supremacy works to normalize white dominance and minority exclusion within both organizations and the larger society. In turn, workforces that are racially homogeneous, or racially stratiﬁed, are not understood to be the product of discrimination. Instead, they become regarded as simply the norm. Roithmayr (2014) argues that racial inequality today is built on early anticompetitive practices that excluded minorities from key ﬁnancial, educational, and political opportunities. Those discriminatory practices, in turn, created feedback loops so that today the everyday decisions of whites, regardless of intent, provide them continued advantages. Invoking the tenets of antitrust law, she argues that antidiscrimination law should break up white monopolies. Intersectional Discrimination One of the most important contributions of the CRT literature is the idea of intersectionality (Browne & Misra 2003; Collins 1999, 2015; Crenshaw 1989). In her seminal work on intersectionality, Crenshaw (1989) pointed out that antidiscrimination law tends to conceptualize discrimination as unidimensional and therefore misses the
unique types of discrimination faced by black women. The key insight of intersectionality theory is that discrimination and disadvantage are not just additive. Rather, identity categories may intersect to produce uniquely harmful outcomes for those who belong to two or more disfavored groups. Empirical sociolegal research supports the insights of intersectionality theory. Research on hiring and discrimination provides evidence that employers hold discrete stereotypes for various intersectional categories. For example, employers may stereotype inner-city blacks (but not www.annualreviews.org • Legal Discrimination 401 necessarily other blacks or white inner-city residents) as lazy and dangerous (Kirschenman & Neckerman 1991, Moss & Tilly 2001). Experimental work in social psychology has further developed the notion of intersectionality by showing that people merge information from multiple categories to create new stereotypes that inﬂuence social perception and judgment (Bodenhausen 2010, Hutter & Crisp 2005, Kunda & Thagard 1996, Ridgeway 1997, Stangor et al. 1992). Using census data, Kaufman (2002) found that employers tend to have preconceived notions about how employees of particular race and gender combinations may be best for particular jobs. Interviewbased research and audit studies conﬁrm that employers prefer to hire white men, as opposed to white women or people of color with equivalent qualiﬁcations, for low-skilled jobs (Moss & Tilly 2001, Turner et al. 1991). Summary In short, the empirical sociolegal and CRT literatures on the nature of discrimination call attention to many forms of discrimination, some conscious and some unconscious, some unique to the workplace and some more systemic, some located in individual biases and others built into the structure of work organizations, some involving appearance but others based on identity and performance. Further, racism and sexism in the workplace are interlinked with a broader system of discrimination that implicates other social institutions, such as education, healthcare, housing, credit, and the criminal justice system (Reskin 2012). Discrimination involves not only outward appearance but also identity and performance. And importantly, discrimination is context speciﬁc and may differ even among members of the same racial or gender group. Thus, the law’s assumption that discrimination is limited to the overt and intentional acts of a biased employer or manager misses many of the types of discrimination uncovered by CRT and empirical sociolegal scholarship. THE PRIVATE RIGHT OF ACTION AND THE ASSUMPTION OF THE LEGAL PROTECTION MODEL The sociolegal literature offers strong challenges to the assumption that victims of employment discrimination will enforce their legal rights through administrative or legal channels (Bumiller 1988). In fact, there are numerous obstacles to rights mobilization, especially in the context of employment discrimination. Further, for the small fraction of potential litigants who do initiate legal action, recent legal developments make it far easier for employers to prevail through motions to dismiss or summary judgments, denying litigants their day in court. Social, Individual, and Institutional Barriers to Rights Mobilization Classic sociolegal studies of civil litigation proffer the dispute pyramid model of disputing, which calls attention to the systematic attrition of potential litigants who seek legal redress such that only approximately 5% of perceived injurious experiences actually reach trial (Miller & Sarat 1980). This pattern is even more pronounced in discrimination cases, where fewer than 30% of potentially aggrieved parties complain and fewer than 1% reach trial (Miller & Sarat 1980). Recent scholars instead offer the imagery of a dispute tree, with branches representing all of the myriad legal and nonlegal, public and private, competing and complementary ways in which a dispute progresses (Albiston et al. 2014). Although some paths are more likely to bear fruit than others, the dizzying tangle of branches can itself dissuade potential litigants from moving forward with viable claims. 402 Edelman· Smyth· Rahim This dispute transformation process—whereby an injurious experience is perceived as such by the aggrieved party, the perceived experience is blamed on another party, and the injured party claims redress—is shaped as much by structural constraints as by individual characteristics (Felstiner et al. 1980). Basic structural variables that discourage mobilization include the time it takes to seek redress, the cost of lawyers and litigation, the complexity of the litigation process, information and power asymmetries, fear of retaliation, and norms against complaining or litigating (Engel 1984; Bumiller 1987, 1988). Further, some aggrieved employees avoid litigating owing to an ethic of survival, or the choice to exercise one’s autonomy in the wake of a rights violation by refusing to be called a victim (Bumiller 1988). Others are hesitant to complain for fear of being labeled as troublemakers (Kaiser & Miller 2003). Barriers to mobilization may be institutional as well as structural
and psychological. Deeply institutionalized norms regarding gender roles and the proper worker erode the transformative power of new legal rights by discouraging mobilization by those actors most affected by the denial of the rights (Albiston 2010). In addition, organizations’ internal grievance procedures tend to discourage employers and employees alike from focusing on violations of law and from ﬁling formal legal claims (Edelman & Cahill 1998; Edelman et al. 1993, 2001; Marshall 2005a,b). Plaintiffs’ lawyers may also act as barriers to mobilization when they discourage potential plaintiffs from ﬁling lawsuits in situations where institutionalized practices make their cases appear weaker. For example, plaintiffs’ employment lawyers discourage plaintiffs from ﬁling lawsuits when they failed to take advantage of employers’ internal grievance procedures—even when those plaintiffs feared retaliation—because courts tend to infer nondiscrimination from the mere presence of these procedures and view employees who do not use those procedures as irrational (Edelman 2016). Further, CRT scholarship suggests that plaintiffs’ employment lawyers may worry that a minority employee who has assimilated to white norms to be successful on the job is problematic as a client. Her employer can more easily claim that she gave no indication that she was uncomfortable in the working environment. In fact, the employer might convincingly demonstrate that she blended seamlessly into the company culture. Yet an employee who does not assimilate to white norms also presents a problem to plaintiffs’ lawyers because an employer may point to the employee’s nonconformity as evidence of unprofessional behavior and argue that professional norms have little to do with race (Carbado & Gulati 2013). Public and Private Administrative Barriers to Rights Mobilization Federal law requires that aggrieved employees attempt administrative resolution prior to initiating litigation. Yet recent work shows how administrative agencies discourage rights mobilization (Nielsen & Nelson 2005, Nielsen et al. 2008). Between 1992 and 2002, the EEOC dismissed 57% of complaints as having no reasonable cause and closed another 21% administratively, forcing grievants to attempt a private lawsuit or give up (Nielsen & Nelson 2005). Other work points to employers’ growing use of mandatory arbitration as a barrier to rights mobilization (Colvin 2008, 2011; Roma 2004; Stone 1995). Despite a longstanding skepticism of mandatory arbitration clauses, in 1991 the Supreme Court held in Gilmer v. Interstate/Johnson Lane Corporation that certain statutory claims could be subject to compulsory arbitration if stipulated in an employment contract. Following Gilmer, the use of mandatory arbitration clauses in employment contracts that require employees to waive their legal rights grew dramatically throughout the 1990s and the early 2000s (Colvin 2008). Employees, lacking bargaining clout or the expertise to negotiate, have little choice in the matter (Stone 1995). Arbitrators, meanwhile, often have limited knowledge of the relevant statutory protections, which they are not required to apply (Roma 2004). The rise in mandatory arbitration, then, means that savvy employers can www.annualreviews.org • Legal Discrimination 403 often escape liability for civil rights violations, and fewer employees have the option of ﬁling a lawsuit to protect their legal rights. Jurisprudential Barriers to Rights Mobilization Empirical sociolegal scholars have found that two recent developments in civil procedure make it relatively easier for employers to dispose of cases at the pretrial stage (Moore 2010, Quintanilla 2011). The ﬁrst development is that heightened pleading standards have made it more difﬁcult for plaintiffs to reach the trial stage and thus to have the opportunity to gather evidence and properly present their cases. For more than 50 years, the Supreme Court had interpreted Rule 8(a)(2) of the Federal Rules of Civil Procedure to mean that a federal complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”4 However, in 2007 the Supreme Court radically changed the pleading standards, holding in Bell Atlantic Corporation v. Twombly that a valid claim must be “plausible on its face” and placing the burden on plaintiffs to establish the plausibility of their claims to survive a motion to dismiss. Two years later, in Ashcroft v. Iqbal, the Court offered only vague instructions for determining plausibility: Reviewing courts were to simply use their “judicial experience and common sense” (at 1950). In effect, the change in pleading standards requires plaintiffs to establish the plausibility of their claims without the opportunity to gather evidence in discovery or to present that evidence in trial, thus transforming a statement that was once seen as a formality into a signiﬁcant barrier to litigation. A growing body of sociolegal literature shows that the new plausibility pleading standard
has disproportionately hurt employment discrimination plaintiffs. Moore (2010) shows that dismissal rates for Title VII claims rose from 42% pre-Twombly to 53% post-Iqbal. Quintanilla (2011) found that in race discrimination and racial harassment cases involving ambiguity, dismissals increased from 20% before Twombly to 55% post-Iqbal, and denials of motions to dismiss dropped from 76% to 38%. Quintanilla also found that, post-Iqbal, white judges dismissed 58% of black plaintiffs’ claims, whereas black judges dismissed only 33% of black plaintiffs’ claims. Quintanilla concludes that when judges draw inferences at the pleading stage, without the beneﬁt of discovery, their judgments are more likely to be inﬂuenced by implicit racial biases. Further, as plaintiffs’ lawyers take the effects of the plausibility into account, they have become less likely to bring EEO cases post-Iqbal (Boyd et al. 2013). The second development that bars many EEO plaintiffs from reaching trial is the ease with which employers are able to dispose of cases through summary judgments. The federal rule permitting summary judgment was adopted in 1938, and for many years courts were cautious about granting summary judgments, generally resolving any ambiguity in favor of the nonmoving party (almost always the employee). However, in a trio of cases decided in 1986, known as the Celotex trilogy (Celotex Corp. v. Catrett; Anderson v. Liberty Lobby, Inc.; and Matsushita Elec. Indus. Co. v. Zenith Radio Corp.), the Supreme Court dramatically reshaped the use of summary judgment by stating that the moving party (almost always the employer) can prevail just by pointing to the absence of evidence offered by the plaintiff (almost always the employee) (see Celotex, pp. 323–25). Edelman (2016) examines summary judgment awards in a representative sample of federal EEO cases decided between 1965 and 1999. She reports that prior to Celotex, employers won on average 59% of summary judgment motions in the district courts and 58% in the circuit courts. After Celotex, employers won on average 62% of motions in the district courts and 81% in the circuit 4See Conley v. Gibson, pp. 45–46. 404 Edelman· Smyth· Rahim courts.5 Weinberg & Nielsen (2011) found, moreover, that both the race of the judge (usually white) and the nature of the case affect the likelihood that the judge will grant summary judgment. White judges were signiﬁcantly more likely to grant employers summary judgment than were minority judges; white judges granted summary judgment more often when the plaintiff was a member of a minority group (the reverse was also true, but most judges are white); and summary judgment was more likely to be granted in sex discrimination cases relative to other types of cases. Moreover, as Albiston (1999) shows, judges tend to write opinions when granting summary judgment more than when denying summary judgment, thus helping to shape precedent in a manner that has long-term beneﬁts for employers. Sociolegal scholarship suggests that judges employ several heuristics that make them more likely to grant summary judgment to employers. First, judges view sexist or racist remarks by employers as stray remarks rather than as indicative of discriminatory motivations (Krieger 1995). Second, judges tend to view employers’ accounts of events as representing their honest beliefs even if they are clearly incorrect (Krieger & Fiske 2006). Third, judges assume that when an employer acts in a way that beneﬁts an employee (for example, by hiring or promoting that employee) and later takes an adverse action against the employee, the motivation for the latter action cannot be discriminatory (Krieger 2004). Finally, Edelman (2016) argues that judges view employers’ “symbolic structures,” such as diversity or EEO policies, as evidence of fair and nondiscriminatory treatment of employees. All of these heuristics make it more likely that judges will grant summary judgment even where the plaintiff presents evidence of discrimination. Taking the insights of sociolegal and CRT scholarship together, moreover, it is likely that these heuristics are especially harmful in cases involving black females or others with intersecting disadvantages. Jurisprudential barriers to rights mobilization cause many cases to fall out of the legal system without a full trial on the merits. Despite the media’s sensationalist reporting of high-proﬁle cases and large settlements in employment discrimination cases (Nielsen & Beim 2004), almost 20% of cases ﬁled in federal court are dismissed outright; another 18% fail on summary judgment; an additional 50% settle before ever reaching a courtroom; 8% settle after surviving summary judgment; and of the remaining
6% of cases that actually reach a trial, only 2% of plaintiffs achieve victory (Nielsen et al. 2010). The Repeat Player Advantage Galanter (1974) famously wrote that litigants who repeatedly engage in multiple legal transactions of a similar type over time, such as landlords or corporations, have numerous advantages over litigants who only sporadically interact with the legal system (such as tenants or individual debtors). These advantages include access to advance information, legal specialists, and informal relationships with institutional actors, as well as the ability to maximize the odds over a series of cases. Perhaps most importantly, repeat players can focus their resources on cases that may inﬂuence both regulatory and procedural rules in ways that provide signiﬁcant advantages in future cases. Empirical sociolegal analyses show that these advantages manifest in state supreme courts (Stanton et al. 1987) as well as in federal circuit courts (Songer et al. 1999). Conversely, individual civil rights litigants lose systemically even when they win a substantial settlement because settlements do not affect future judicial decisions (Albiston 1999). For example, an early settlement involving monetary compensation may at ﬁrst appear to be a positive outcome, but it potentially limits the 5These data were collected by Lauren B. Edelman and Linda Hamilton Krieger as part of a collaborative project. www.annualreviews.org • Legal Discrimination 405 ability of future plaintiffs to attain favorable outcomes, as the rule-making capability of the courts is avoided when defendants settle cases they cannot win. The repeat player advantage extends to the arbitration arena as well, where employees tend to fare poorly. A study of arbitration cases settled between 2003 and 2007 shows that, relative to employees who litigate, employees who arbitrate win less often and obtain smaller rewards when they do win (Bingham 1997, Colvin 2011). These differences are perhaps unsurprising given that arbitrators are generally paid by employers and are repeat clients. The Intersectionality Disadvantage The CRT notion of intersectionality (Crenshaw 1989), in which women of color and others who are members of multiple disadvantaged groups not only suffer intersecting axes of discrimination again comes into play in the litigation setting. The CRT literature has demonstrated that courts tend to use a single-axis framework that disregards the identity and experience of black women and makes it difﬁcult to prove discrimination unique to them (Austin 1989; Caldwell 1991; Carbado 2013; Crenshaw 1989, 1991; Harris 1990; McCall 2005). For example, evidence that black men have not been discriminated against is often taken to prove that an employer has not discriminated against black employees generally, just as the experiences of white women could be taken to determine the (non)existence of gender discrimination. Sociolegal scholarship that builds on CRT provides empirical support for these arguments. A recent quantitative analysis of a representative sample of federal civil rights opinions demonstrates that plaintiffs who made intersectional claims were only half as likely to win their cases as were those who alleged a single basis of discrimination, even controlling for the sex, race, and intersectional status of the plaintiff (Best et al. 2011). Performativity and Rights Mobilization We noted previously that a subtle but pernicious form of discrimination occurs against minorities who fail to perform whiteness. CRT explains how courts are not equipped to recognize these forms of bias (Carbado & Gulati 2000, 2013). Courts may recognize discrimination where most qualiﬁed Latino associates were denied partnership whereas the majority of white associates were promoted, but they would be unlikely to recognize discrimination if an employer promoted several Latino associates who performed whiteness or covered their Latino identity while denying promotions to others who were seen as too Latino. Further, a minority employee’s choice to cover (for example, by associating with white employees rather than other minorities) might be seen by a court as evidence that she did not suffer discrimination. Summary Although the enforcement of EEO law requires victims of discrimination to mobilize their legal rights, the empirical sociolegal scholarship on rights mobilization and CRT scholarship on judicial handling of intersectional cases point out myriad obstacles to rights mobilization. Victims of discrimination frequently choose not to mobilize their rights at all or to use informal means of rights mobilization. For the relatively small percentage of employees who do seek legal redress for perceived rights violations, there are a growing number of legal obstacles, including administrative and jurisprudential obstacles, repeat player advantages, and disadvantages related to intersectionality and performativity. 406 Edelman· Smyth· Rahim THE WORKPLACE, CIVIL RIGHTS LAW, AND THE ASSUMPTION OF ORGANIZATIONAL RATIONALITY EEO law implicitly presumes that the threat of lawsuits will motivate employers to take actions to eliminate, or at least to reduce discrimination. Yet a growing body of literature on law and organizations
suggests that the path through which organizations respond to law is indirect and fraught with opportunities for symbolic compliance. Because it has focused largely on broad institutional and structural barriers to entry for minorities, the CRT literature has not yet focused on organizational behavior itself as a site of study (Carbado & Gulati 2003). Yet, as we point out in this section, some general insights of CRT are relevant to the literature on law and the workplace. The Legalization of the Workplace and Diffusion of Symbolic Compliance Structures Sociolegal scholarship on law and organizations establishes that organizations respond to their legal environments by adopting a set of symbolic structures designed to increase organizational legitimacy by demonstrating attention to broad legal principles (Edelman 1990, 1992; Edelman & Suchman 1997). For example, in the wake of ambiguous civil rights laws, organizations adopted antidiscrimination policies and grievance procedures—despite no legal mandate to do so—because these procedures resemble the statutes and courts of the public legal order and thus evoke compliance and legitimacy. Over time, these symbolic structures diffused across organizational populations and came to be viewed as successful means of complying with civil rights law (Dobbin 2009; Dobbin et al. 1993; Edelman 1990, 1992; Edelman & Petterson 1999; Edelman et al. 1999, 2011; Sutton et al. 1994). Importantly, the symbolic value of these structures does not depend on their effectiveness in protecting employees’ civil rights (Edelman & Petterson 1999; Edelman et al. 1993, 2001). Compliance Professionals in Organizations Compliance professionals, such as personnel or human resource ofﬁcers, play an important mediating role in the organizational adoption and diffusion of symbolic compliance structures, gaining power and prestige by claiming expertise in the translation of ambiguous laws into policy practices (Edelman et al. 1991). Several studies have elaborated the role of such professionals in deﬁning the nature and form of organizational compliance with civil rights law. The human resource profession has been pivotal in the institutionalization of equal opportunity practices in the contemporary American workplace (Dobbin 2009, Edelman & Petterson 1999, Edelman et al. 1999). Human resource professionals exaggerated the threat of legal liability as a means of encouraging employers to take proactive risk-reducing action (Edelman 2016, Edelman et al. 1992) and encouraged the adoption of formal hiring and promotion practices (Dobbin 2009, Dobbin et al. 1993, Edelman 1992). Indeed, the human resource profession made strong claims that these structures would insulate organizations from liability long before the courts began to view these structures as evidence of nondiscrimination (Edelman 2016). These studies challenge the predominant understanding of law as a top-down coercive force and demonstrate that mere passage of a policy does not immediately and simply change organizational behavior. Instead, organizations adapt to new legal norms through a complicated interactive process that takes into account factors such as professionalization and ﬁeld-level normative pressures. www.annualreviews.org • Legal Discrimination 407 The Managerialization of Law Once organizations’ compliance structures are in place, the professionals who oversee or work in those ofﬁces tend to “managerialize” the law—that is, to infuse the meaning of law and compliance with managerial prerogatives and values (Edelman 2016). Managerialization occurs in several ways. First, compliance professionals may decouple, or separate, formal organizational policies from organizational behaviors, creating antidiscrimination policies that coexist with discrimination, as well as antiharassment policies that fail to mitigate harassment (Bisom-Rapp 1999; Edelman 1992, 2016; Kalev et al. 2006). Second, by internalizing dispute resolution, compliance professionals often handle disputes in ways that elevate business logic over legal logic. For example, discrimination complaints are recast as interpersonal difﬁculties or instances of poor management and then resolved not with reference to legal rights but rather through managerial solutions, such as moving the employee to a different unit; offering therapy; or imposing mild punitive actions, such as a required apology (Edelman et al. 1993). Third, civil rights are rhetorically transformed in ways that deemphasize law. For example, managerial rhetoric reframes afﬁrmative action and antidiscrimination policies as diversity management, which weakens the original policy aims of Title VII by broadening the categories along which diversity is sought (e.g., diversity of dress style as well as racial diversity) even as it helps to institutionalize some forms of legalization (Berrey 2015, Edelman et al. 2001). Fourth, compliance professionals use contractual terms or managerial practices to navigate around legal risk. Mandatory arbitration and at-will employment clauses allow employers to escape liability for civil rights violations, while employment practices liability insurance
allows employers to insure against such liability (Edelman 2016, Talesh 2015). Legal Endogeneity and Judicial Deference Legal endogeneity is the idea that the meanings of law and compliance are deﬁned by the social ﬁelds (and the actors) that law seeks to regulate (Edelman 2016, Edelman et al. 1999). In the civil rights context, this means that civil rights laws are undermined as organizations’ symbolic legal structures come to be accepted by courts as constituting compliance with civil rights law. For example, internal corporate grievance procedures have been considered adequate to shield corporations from liability by judges in EEO cases (Edelman et al. 1999). This trend has escalated over time, with judges increasingly deferring to institutionalized organizational structures, inferring nondiscrimination from the mere presence of those structures without evaluating their efﬁcacy (Edelman 2016, Edelman et al. 2011, Krieger et al. 2015). Judicial deference is especially likely in cases involving less powerful plaintiffs and in disparate treatment cases, in which the court infers a lack of intent to discriminate from the presence of organizational structures. Given the importance of the judiciary in setting the normative legal environment organizations respond to, judicial deference to institutionalized organizational structures helps to explain the persistence of discrimination and inequality in the workplace. Summary The sociolegal literature on law and organizations suggests that the assumption that the private right of action will motivate organizations to comply with EEO law is overly simplistic. Organizations do adopt a variety of compliance structures in response to EEO law, but these structures are often more symbolic than substantive. They tend to coexist with discriminatory practices and to result in a managerialization of law that undermines the ideals of antidiscrimination law. Judges, moreover, tend to defer to managerialized conceptions of law by inferring nondiscrimination from 408 Edelman· Smyth· Rahim the mere presence of organizational structures, without adequate scrutiny of discriminatory practices within organizations. As we noted earlier, CRT does not explicitly address the intersection of law and organizational behavior. Importantly, however, judicial deference occurs more frequently in cases involving intersectional disadvantages (Best et al. 2011), which suggests that the subtle forms of discrimination that CRT identiﬁes are at play in the evolution of legal endogeneity. CONCLUSION: LEGAL MISMATCHES, LEGAL DISCRIMINATION Taken together, the empirical sociolegal and CRT literatures make clear that subtle but pernicious forms of discrimination leave workplaces highly stratiﬁed by race and gender in ways that are neither recognized nor adequately addressed by antidiscrimination law. Social interactions, dayto-day decision making, application and selection procedures, and notions of success have evolved in ways that favor not just whites and males but those minorities and women who can best conform to white, male expectations and behavior patterns. Women and men of color as well as white women must navigate an oft-times invisible obstacle course of bias and exclusion and yet are paid less than white males for similar work. We have argued that the failures of antidiscrimination law stem largely from a mismatch between the assumptions of civil rights law and the reality of race and gender dynamics in the workplace. Civil rights jurisprudence generally assumes that discrimination is the result of overt intentional acts by identiﬁable actors, that individuals who suffer rights violations will mobilize their legal rights, and that regulated organizations will take measures to reduce discrimination to minimize their risk of liability. The empirical sociolegal and CRT literatures, however, show that these assumptions are inaccurate. Instead, discrimination and inequality are built into the structure of organizations and are inherent in society generally, few victims of employment discrimination mobilize their legal rights, and organizations respond to law more in symbol than in substance. Compliance with civil rights law, in short, becomes a set of managerial rules and procedures that do little to combat long-ingrained patterns of race and gender segregation that perpetuate the privileges of whites and males, subjective decision making that envisions only white males as leaders, informal cultures that promote the harassment of men and women of color and white women, and subtle expectations that require employees of color to cover their identities to succeed. By placing so many forms of discrimination outside of the reach of law, antidiscrimination law in effect condones much of the discrimination that characterizes employment today. Our review of these literatures also shows how integrating the insights of CRT and empirical sociolegal scholarship allows for a more nuanced understanding of how discrimination continues to organize contemporary workplaces. CRT points to processes and barriers that empirical sociolegal scholars have largely overlooked, such as the additional burdens that are placed on minority employees to navigate their multiplex racial and gender identities to succeed and the particular burdens of those with intersectional disadvantages. CRT further emphasizes the importance of analyzing discrimination through an intersectional lens. In this regard, even broad analytic categories like “women and minorities” can divert attention from the unique experiences of women of color and can conceal signiﬁcant interracial differences among various
minority groups that are often lumped together as though they have a monolithic minority experience. It is common especially in the empirical sociolegal literature to discuss “women and minorities” as a group or to include variables for gender and race, and perhaps an interaction of gender and race. Still, empirical sociolegal scholarship provides clear evidence that racism and sexism still structure society and has begun to document empirically the forms of discrimination and inequality that are theorized in the CRT literature (Best et al. 2011, Carbado & Roithmayr 2014, Obasogie 2013, Quintanilla 2011). www.annualreviews.org • Legal Discrimination 409 There are still points of contention between empirical and CRT scholars, for example, with respect to the relative value of storytelling and the possibilities for an objective social science (Carbado & Roithmayr 2014). But the divisions between empirical sociolegal and CRT scholarship have begun to dissipate, yielding more powerful evidence of the mismatch between the assumptions of antidiscrimination law and the reality of employment discrimination. The question now is how the evolving dialogue between these two bodies of scholarship can affect the broader policy conversation about law and organizations and, even more importantly, begin to affect policy. Our hope is that the combined insights of empirical sociolegal and critical race scholarship can serve as an impetus to courts to interpret antidiscrimination law in a way that will redress what is still, unfortunately, legal discrimination. 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. LITERATURE CITED Albiston CR. 1999. The rule of law and the litigation process: the paradox of losing by winning. Law Soc. Rev. 33(4):869–910 Albiston CR. 2010. Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave. New York: Cambridge Univ. Press Albiston CR, Edelman LB, Milligan J. 2014. The dispute tree and the legal forest. Annu. Rev. Law Soc. Sci. 10:105–31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) Ansley FL. 1989. Stirring the ashes: race, class and the future of civil rights scholarship. Cornell Law Rev. 74(6):993–1077 Ashcroft v. Iqbal, 556 U.S. 662 (2009) Austin R. 1989. Sapphire bound! Wis. Law Rev. 1989:539–78 Banaji MR, Greenwald AG. 1995. Implicit gender stereotyping in judgments of fame. J. Personal. Soc. Psychol. 68(2):181–98 Baron JN, Bielby WT. 1980. Bringing the ﬁrms back in: stratiﬁcation, segmentation, and the organization of work. Am. Sociol. Rev. 45(5):737–65 Baron JN, Bielby WT. 1984. The organization of work in a segmented economy. Am. Sociol. Rev. 49(4):454–73 Baron JN, Bielby WT. 1985. Organizational barriers to gender equality: sex segregation of jobs and opportunities. In Gender and the Life Course, ed. AS Rossi, pp. 233–51. Hawthorne, NY: Aldine de Gruyter Becker GS. 1971. The Economics of Discrimination. Chicago: Univ. Chicago Press Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) Berrey E. 2015. The Enigma of Diversity: The Language of Race and the Limits of Racial Justice. Chicago: Univ. Chicago Press Bertrand M, Mullainathan S. 2004. Are Emily and Greg more employable than Lakisha and Jamal? A ﬁeld experiment on labor market discrimination. Am. Econ. Rev. 94(4):991–1013 Best RK, Edelman LB, Krieger LH, Eliason SR. 2011. Multiple disadvantages: an empirical test of intersectionality theory in EEO litigation. Law Soc. Rev. 45(4):991–1025 Bielby WT. 2000. Minimizing workplace gender and racial bias. Contemp. Sociol. 29(1):120–29 Bielby WT, Baron JN. 1986. Men and women at work: sex segregation and statistical discrimination. Am. J. Sociol. 91(4):759–99 Bingham L. 1997. Employment arbitration: the repeat player effect. Empl. Rights Employ. Policy J. 1(1):189–220 Bisom-Rapp S. 1999. Bulletpro
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unities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Clause 1) This has opened the door to a string of cases addressing whether certain redistricting, voter registration, and other electoral practices are constitutional. The landmark decision in Baker v. Carr—a case that involved vote dilution due to congressional districts not being redrawn and population growth leading to disparities as large as 3 to 1— declared that redistricting claims were justiciable. The Court went further in Wesberry v. Sanders, holding that only congressional voting districts with populations “as nearly equal as possible” were consistent with the Equal Protection Clause. The court applied a similar standard to districts for statewide legislative bodies in Reynolds v. Sims and local governments in Avery v. Midland County. Statutes have also had an important impact on elections, with the Voting Rights Act (VRA) (1965) being the quintessential example. From the perspective of elections and redistricting, there are two key sections of the VRA: sections 2 and 5. Section 2 prohibits states from using any voting practice “in a manner which results in a denial or abridgement of ” minority voting rights [42 U.S.C. §2 (1973)]. Roughly speaking, this has been interpreted over time to mean that districting plans that dilute the interests of minority voters are prohibited (see, e.g., Thornburg v. Gingles). 256 Holden What “dilute” means is a complex and contested concept, but it is fair to say that in some instances this has led to a requirement to create so-called majority-minority districts—i.e., districts in which a racial minority constitutes a majority of the voters.1 Section 5—known as the reclearance provisions—requires that certain jurisdictions submit changes to districting plans to the Department of Justice (or the D.C. Circuit) for approval. The jurisdictions to which this provision applies are deﬁned in the coverage formula of section 4(b), which was updated by Congress in 1970 and 1975. It was targeted at jurisdictions that had engaged in egregious vote-dilution practices. Section 5 was effectively invalidated in a relatively recent decision of the US Supreme Court in Shelby County v. Holder. That decision ruled the coverage formula unconstitutional for not being responsive to current political conditions. Social science–based understandings of voting and elections play an important role in many of these cases, sometimes in the background, and often in the foreground. A threshold question is whether, for example, claims that political districting plans violate the Fourteenth Amendment are justiciable. This question dates to at least Colegrove v. Green, in which Justice Frankfurter, writing for the 4–3 plurality, famously observed, “To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket” (emphasis added). In Davis v. Bandemer, the Court found that partisan gerrymandering claims were justiciable, but did not offer a clear standard for assessing such claims. The plurality (4–1–4) decision in Vieth v. Jubelirer did not overturn Bandemer, but the plurality opinion did hold that the absence of a judicially manageable standard meant that partisan gerrymandering claims were not justiciable. The closeness of this case, and the change (and future change) of the composition of the Court, however, mean that this could be an important question going forward. As I discuss in the conclusion of this article, the very notion of a judicially manageable standard for partisan gerrymander claims puts social science at the heart of legal matters, for it is social science techniques and analysis that are essential components of such a standard. Voting and elections—and particularly redistricting—are areas where the interplay between social science and the law is extremely rich and developments on both sides have been important. In recent years there have been developments both on the theoretical side and on the empirical side, from economists, political scientists, and legal scholars, that have enriched our understanding of voting and elections. The purpose of this article is to highlight some of the work that has been associated with those developments. I focus relatively heavily on issues surrounding redistricting and political geography—as this is the area where new social science techniques have had the most pronounced impact to date—but I also discuss voter turnout and how modern campaigns are conducted and brieﬂy comment on some of the issues these raise for election law, especially in the United States. Theoretical models in the social sciences are always wrong, in the sense that they are abstractions designed to highlight one or two important forces rather than to be a complete description of reality, like models in particle physics. As the great economist Joan Robinson (1962) famously said, “A model which
took account of all the variegation of reality would be of no more use than a map at the scale of one to one.” Having said that, models that are highly sensitive to assumptions that are made for convenience are undesirable because their conclusions are not robust to potentially small deviations from those ad hoc assumptions. Moreover, models that are not microfounded in the sense that they take individual voting decisions as the primitive object of the 1For an outstanding analytic treatment of majority-minority districting, see Shotts (2002). Shotts develops a model to assess the claim that majority-minority districting can lead to the somewhat perverse outcome that more conservative legislators are elected, thereby shifting policy outcomes to the right, despite the more left-leaning political preference of minority voters. www.annualreviews.org • Voting and Elections 257 model are of limited use because there is no guarantee that there is a one-to-one mapping from aggregate variables to individual voters. It is the latter that is vital for policy purposes. Thankfully, models of elections and, especially, redistricting have moved in a more robust and microfounded direction. On the empirical side, there has been a massive increase in the amount, and richness, of publicly available data. At the same time, there has been a much greater emphasis on trying to identify the true causal effect of various phenomena, rather than being satisﬁed with mere correlations. This, in many ways, parallels the identiﬁcation revolution that began in labor economics and has now spread across the social sciences.2 Combining both theory and empirics, there has been an increased use of computer science techniques in the study of elections—especially redistricting. In fact, many electoral problems are inherently combinatoric in nature. One prominent example is constructing districting plans, where enumerating the set of all districts (even subject to the constraint that districts contain equal numbers of voters) is NP-hard for even a modest-size jurisdiction. Or, to put it differently, the number of feasible congressional districts for the state of California is (much) larger than the number of atoms in the observable universe. The remainder of the article proceeds as follows. The next section deals with redistricting, including partisan gerrymandering, incumbency advantages, and political geography. The third section discusses issues around voter registration and turnout.3 The fourth draws together some of the implications of the previous sections for election law. The ﬁnal section contains some concluding remarks, but perhaps most importantly highlights ﬁve broad and important open questions in the ﬁeld that I hope will serve as partial impetus for future research. Two ﬁnal points are worth emphasizing. First, although this article, like much of the literature, is somewhat US-centric, several of the issues are germane to elections in other jurisdictions. Second, I have been deliberately selective in the papers I have cited here, and this is not meant to be an encyclopedic exercise, nor have I sought to compile an exhaustive list of references. I hope, however, that it will serve as a useful summary and entry point into the recent literature. REDISTRICTING Partisan Gerrymandering Because of uneven population growth, it is commonplace in all democracies for electoral boundaries to be redrawn from time to time. There is signiﬁcant heterogeneity in how that process is carried out, with the United States being perhaps the starkest illustration of politicians themselves being in control of the redistricting process. Allowing partisan political actors such power predictably leads to abuse of that power. The term gerrymander dates to 1812, when Governor of Massachusetts (and later Vice President of the United States) Elbridge Gerry signed a reapportionment bill that created a district in Essex County that was so oddly shaped it was said to resemble a salamander. Political cartoons of the day depicted it as such, giving rise to the portmanteau gerrymander. From a social scientist’s perspective, understanding the optimal strategy for a gerrymanderer is important for at least two reasons. First, it allows one to understand how large the advantages 2See Angrist & Pischke (2009) for an elegant account of the tools and techniques that permit causal inference even when randomized controlled trials are not possible. 3This is one section that is particularly US-centric because many of the issues covered in it do not arise in jurisdictions with compulsory voting and quasi-automatic voter registration. 258 Holden of drawing electoral boundaries are, and hence the resources that will be optimally expended in pursuit of that advantage. Second, if one hopes to regulate the practice one must consider the strategic interactions between regulator and regulated. A series of important papers consider properties of districting plans as a whole by using an analytic framework known at the seats-votes curve. The seats-votes curve is a mapping from the proportion of the vote won to the proportion of seats won and is of particular interest in two-party elections. The two key parameters are the bias (the
difference between the proportion of seats won with 50% of the votes and one-half) and the responsiveness (the slope of the curve at one-half ). For instance, Owen & Grofman (1988), Sherstyuk (1998), Gilligan & Matsusaka (1999), and Cox & Katz (2002) all consider the trade-off between biasedness and responsiveness for the gerrymanderer. These analyses, in no small part, gave rise to the now long-standing intuition for the optimal strategy for a gerrymanderer: the so-called pack-and-crack approach. Under this strategy, the gerrymanderer concentrates her opponents into several unwinnable districts (packing) and spreads the remaining opponents as well as her now relatively more numerous supporters over the remaining districts (cracking). Although elegant, a drawback of the approach that these papers take is that it is not microfounded, in the sense that it analyzes properties of state-wide districting plans, rather than analyzing the placement of individual voters (or blocks of voters) into particular districts. There is no guarantee that there exists a feasible allocation of individual voters satisfying the constraints that districts be contiguous and contain an equal number of voters possessing the aggregate properties that optimize the trade-off between biasedness and responsiveness. Gilligan & Matsusaka (1999), by contrast, do analyze a microfounded model of gerrymandering. In their model, the gerrymanderer observes the voting intention—via party afﬁliation—of each voter perfectly. That is, he knows for sure which party each voter intends to vote for. This leads him to the conclusion that the optimal gerrymandering strategy is to create as many districts with a bare majority of supporters in them as possible, because such districts are won by the gerrymanderer with certainty. The only limitation on this is the proportion of one’s supporters in the population. Indeed, with a bare majority in the population, the gerrymanderer wins all districts. Despite its intuitive appeal, Friedman & Holden (2008) showed formally that this is, in fact, not the optimal strategy in general. The intuitions for pack-and-crack come from theoretical models with special assumptions—such as there being only two types of voters—that do not generalize. Friedman & Holden showed, in a model with a continuum of voter types, that instead a strategy of matching one’s most ardent supporters with a slightly smaller number of one’s most ardent opponents and continuing this process into the center of the signal distribution is, in fact, optimal in general. The following table from their paper provides a numerical example of the superiority of this matching slices strategy to the pack-and-crack approach. Table 1 shows how to construct the optimal gerrymander for a hypothetical state with ﬁve districts and assumes (without loss of generality) that the redistricter is the right-wing (e.g., Republican in the US setting) party. Voters come in a continuum (an inﬁnite number) of types ranging from the far left to the far right, and these preferences are drawn from a normal distribution. There is an aggregate shock to voter preferences so that although the redistricter receives a signal of voter preferences, she is not certain of the eventual voting outcome (in the aggregate). Panel a shows the relative mass of the upper (i.e., from the right of the distribution) slice of the district to the lower (i.e., from the left of the distribution) slice of the district. District 1 is composed of 62% from the right tail and 38% from the left tail, and the redistricter has an 87.5% chance of winning that district. There are two other salient characteristics of the optimal matching slices strategy. The ﬁrst is that the relative size of the upper-to-lower slice gets larger as the districts become less safe. This is because signals in the far right or far left tails of the distribution are more precise www.annualreviews.org • Voting and Elections 259 Table 1 Matching slices gerrymanderinga a. Baseline example District 1 2 3 4 5 Upper slice 0.62 0.73 0.91 1 NA Lower slice 0.38 0.27 0.09 0 NA Prob. (win) 87.5% 74.8% 65.7% 41.7% 13.7% b. Signal coarseness Probability of winning district Signal variance E (districts won) 1 2 3 4 5 0.50 3.46 97.4% 86.9% 74.3% 56.6% 30.9% 2.50 2.83 87.5% 74.8% 65.7% 41.7% 13.7% 4.50
2.53 68.2% 61.9% 55.7% 41.8% 25.9% c. Spread of voter preferences Probability of winning district Preference variance E (districts won) 1 2 3 4 5 3.0 2.55 71.0% 62.3% 55.6% 41.2% 25.1% 5.0 2.83 87.5% 74.8% 65.7% 41.7% 13.7% 25.0 3.78 100.0% 971.0% 90.6% 73.9% 16.4% d. Partisan bias of the population Probability of winning district % Republican E (won) Value 1 2 3 4 5 30% 2.04 0.58 49.4% 47.0% 40.7% 27.8% 10.2% 40% 2.44 0.48 87.0% 73.0% 52.3% 25.1% 6.2% 50% 2.83 0.33 87.5% 74.8% 65.7% 41.7% 13.7% 60% 3.24 0.20 87.8% 76.1% 67.3% 58.6% 34.5% 70% 3.67 0.12 90.2% 79.6% 71.7% 65.0% 59.1% aSource of table: Friedman & Holden (2008). than those in the middle.4 In a sense, the gerrymanderer ﬁnds it optimal to cut districts less ﬁnely because she is less certain about how voters will actually end up voting. The second characteristic of the optimal gerrymander is that the probability of winning districts gets lower as voters are assigned to districts more from the middle of the distribution, rather than from the tails. This is a key point to which I return shortly. To see why pack-and-crack is dominated by matching slices, consider the cracked districts under the former strategy. Those are composed of an identical array of voters (or as nearly identical as is practicable), including those most likely to vote for the gerrymanderer. For a right-wing party those voters are used as right-of-the-median voters in multiple districts, rather than being used as the median (and hence pivotal) voters in some district. The same logic obviously applies for a left-wing party. 4This is easy to see for the normal distribution by simply calculating the likelihood ratio and observing that it goes to positive (respectively negative) inﬁnity as one goes to the far right (respectively left) tail of the distribution. This fact, however, is much more general and extends beyond the normal distribution. 260 Holden Table 1 also highlights various comparative static properties of the optimal gerrymander. Panel b shows how the optimal gerrymander changes as the signal gets more or less precise. The middle row, with a signal variance of 2.50, is identical to the baseline example in panel a. The top row, with a signal variance of 0.50, shows that the redistricter wins more districts in expectation (3.46 compared with 2.83). It is also worth noting that one can compute the best pack-and-crack strategy for exactly this example. With a signal variance of 0.5 under pack-and-crack, the redistricter wins 2.86 districts in expectation, a full 0.6 districts less than the 3.46 under matching slices. Friedman & Holden (2008) show that she also cuts districts more ﬁnely (has a small relative mass of upper-to-lower tail voters) when signals are more precise. Much has been written in the popular press and elsewhere (Issenberg 2012) about the sophistication of modern US presidential campaigns in terms of gathering and analyzing information about voters preferences—which corresponds to obtaining a more precise signal. Not only does this lead to the redistricter doing better in terms of the expected number of seats won, it causes her to change her optimal strategy. It is this latter point that is arguably of most interest: The voters who win and lose from gerrymandering are determined, at least in part, by the informational environment. This has signiﬁcant policy implications, as I discuss in my concluding remarks. The ﬁnal comparative static property of interest is how the value of gerrymandering is affected by the general left-right leaning of the population. Panel d compares the expected number of seats won with a proportional share of the population to
the expected number of seats won under the optimal gerrymander. The difference between these two numbers is the value of the gerrymander. Notice that this value is the greatest when the gerrymanderer has only 30% support in the population (the value is 0.58 expected seats), and it falls (monotonically) to 0.12 when the gerrymanderer has 70% support in the population. This fact demonstrates that being the redistricter is more valuable when one is in the minority. This has implications for competition to become the redistricter. Finally, this gerrymandering value—the difference between the expected number of districts won and the number of expected districts won under proportional representation—is a useful and easy way to calculate a measure of the potential for mischief when it comes to drawing electoral boundaries. In the examples above, it is a function of the informational environment, as it would be in practice. However, one could also easily incorporate geographical and other constraints. Indeed, the reduction in the gerrymandering value from the imposition of a constraint (such as contiguity, communities of interest, compactness, or minority representation) is a good measure of how meaningful such constraints are. And it puts a numerical value on them in natural and useful units—i.e., the expected number of districts won.5 Incumbency Advantages A striking fact about US congressional elections—although the phenomenon is far more widespread than that—is the very high reelection rates for incumbent representatives. Figure 1 (Friedman & Holden 2009) shows the time series of that reelection rate from 1898 to the early 2000s. Although there are dips in certain years, the rate is very high: In 2004, 97.9% of those who ran won (see the top line and left axis). Moreover, there was an upward trend over the century, indeed really in the post–World War II era. Many have seen this as a worrying trend, even leading The Economist (2004) to compare the current state of democracy in America to that in North Korea. There are many reasons to be 5I am grateful to George Akerlof for suggesting this interpretation to me in a seminar I gave at UC Berkeley in 2006. www.annualreviews.org • Voting and Elections 261 Incumbent reelection rate, conditional on running Unconditional reelection rate 100 95 90 85 80 75 70 1898 1902 1906 1910 1914 1918 1922 1926 1930 1934 1938 1942 1946 1950 1954 1958 1962 1966 1970 1974 1978 1982 1986 1990 1994 1998 2002 Percent Year Figure 1 US House of Representatives incumbent reelection rate (Friedman & Holden 2009). worried about elected ofﬁcials becoming too entrenched: corruption, the ability to tilt elections in their favor even if they are not the best candidate, and effectively foreclosing entry of new candidates, among other things. Of course, there is a countervailing effect that learning on the job may lead elected ofﬁcials to become more productive over time, all else equal. Whatever the balance of these competing effects, it is natural to ask why the reelection rate is so high, and what has caused the upward trend over time. The literature has offered many alternative explanations, ranging from the benign to the nefarious. Yet trying to empirically identify the causal effect of various changes to the institutional environment—money in politics, say, or the rise of modern media—is a tricky exercise. There are powerful selection effects in terms of who runs for ofﬁce. A careful empiricist attempting to tease out the causal effects of changes in the institutional environment would be rightly worried about both omitted variable bias and reverse causality in taking the most straightforward empirical approaches. It is fair to say that for a long time the literature did not fully recognize these concerns—or certainly did not embrace them. Then, after the start of the identiﬁcation revolution in labor economics, several papers looked for causal effects of the incumbency advantage.6 Ansolabehere et al. (2000) used the change in districts after census years to distinguish between the incumbency advantage for old voters who were previously in a representative’s district and recently added, or new voters. They show that two-thirds of the incumbency advantage comes from these old voters. Levitt et al. (1997) ﬁnd that pork barrel spending in a district helps incumbents, while Levitt (1994) presents persuasive evidence that, quite surprisingly, campaign spending has little impact on the outcomes of congressional races.7 6This overview of the literature is based heavily on that in Friedman & Holden (2009). 7One should be careful not
to conﬂate campaign spending and campaign contributions. Having a large war chest could deter other candidates (in terms of either entry or the quality of the candidates who do enter). 262 Holden Other papers have sought to rule out potential explanations that seem intuitively plausible. For example, Ansolabehere et al. (2006) argue persuasively that the increasing availability and inﬂuence of television over time cannot explain the rise in the incumbent reelection rate. One potential source of the incumbency advantage is redistricting. Indeed, many popular commentators and even scholars have made strong claims that this is almost certainly (and obviously) the case.8 A series of, again, fairly empirical papers, which are fairly attentive to being able to make causal inferences, cast doubt on this. For instance, Ansolabehere & Snyder (2002) show that the advantage to being an incumbent in settings where redistricting does not play a role (e.g., the US Senate and gubernatorial races) has risen at similar rates as that for the US House of Representatives. It was long ago noted that the time series of decline of marginal districts is not consistent with redistricting as a cause (see, for instance, Burnham 1970 and Gross & Garand 1984). Gross & Garand, in particular, consider data on marginals back to 1824. Gelman & King (1994) adopt a more macropolitical approach by estimating the seats-votes curve for various states. Recall that the responsiveness of the seats-votes curve is the slope of the curve at one-half. Gelman & King show that redistricting leads to an increase in responsiveness, so that the share of seats won for a given party is more sensitive to their share of their voteshare. Friedman & Holden (2009) adopt a regression discontinuity approach by observing that, with relatively few exceptions, redistricting takes place after the decennial census, so that new districts come into effect in 1962, 1972, 1982, and so on. However, the other factors that are potential explanations for the incumbency advantage (e.g., money, media, match quality) tend to evolve smoothly over time. This serves as the basis for identifying the effect of redistricting. By ﬁtting a smooth function (a cubic spline or a high-order polynomial) to the time series of incumbent reelection rates, and then a step function that is only permitted to change in redistricting years, the authors show that for redistricting to be the culprit it would have to be the case that the step function takes steps up in those redistricting years. In fact, they do not ﬁnd this effect; if anything, they ﬁnd evidence of the opposite. Figure 2 from their analysis shows the smooth and step functions. Note that the step function is basically ﬂat, except after 1962 and in 1992. Those are years when certain landmark US Supreme Court decisions occurred (1962) and when the VRA was reauthorized with tighter provisions (1982)—after the 1982 round but before the 1992 round. Friedman & Holden conjecture that these additional constraints on redistricting actually caused the incumbent reelection rate to decline, all else equal. In short, redistricting may cause the initially high level of the incumbent reelection rate, but it cannot have caused the increase since the 1950s. What exactly causes there to be a high incumbency advantage remains an open question, and it is fair to say that although new social science approaches have been relatively successful in ruling out various potential explanations, they have had very little success in pinning down what the real cause is. 8Friedman & Holden (2009) cite two instructive quotes: “Although elections may be uncompetitive for many reasons— including money in politics and the declining prestige of political service—the role of incumbent protection through the redistricting process is undeniable... Thanks to the wizardry of computer programs that draw incumbent-safe districts with ease” (Wilmot 2004). “And it is the yawning gap between the huge problems our country faces today—Social Security reform, health care, education, climate change, energy—and the tiny, fragile mandates that our democracy seems able to generate to address these problems that is really worrying. Why is this happening? Clearly, the way voting districts have been gerrymandered in America... is a big part of the problem” (Friedman 2005). www.annualreviews.org • Voting and Elections 263 120 110 100 90 80 70 60 1914 1924 1934 1944 1954 1964 1974 1984 1994 2004 Cubic spline in time Step function Predicted prob(win) Actual prob(win) Year Probability of winning Figure 2 The Friedman-Holden discontinuity approach (F
riedman & Holden 2009). Geography One issue of geography that arises speciﬁcally in the context of redistricting is how to measure what has become known as the compactness of political districting plans, that is, how oddly shaped they are. It is natural to think that political districts that have particularly odd-looking boundaries have been manipulated in the redistricting process for political advantage. A classic example is the Illinois fourth congressional district, depicted in Figure 3, and commonly referred to as the ear muff district given its odd shape. Indeed, it runs up a freeway for several miles solely for the purpose of connecting voters on the north and south sides of Chicago. Because voters on the north and south sides are known to have, on average, quite different political preferences, this is suspicious. That oddly shaped districts are suspicious is not controversial. The key question, however, is how to construct a mathematical measure that captures the idea of oddly shaped in a meaningful way and in a single number. There is a long literature on this issue, and a large number of measures have been proposed (see Fryer & Holden 2011 for a list of references too numerous to reproduce here). These measures include the area of various circumscribing ﬁgures (circles, octagons, and others), the perimeter length of a district, and the ratio of the perimeter length to the area of a circumscribing ﬁgure. Fryer & Holden (2011) point out that most of the measures that have been proposed suffer from at least one of several shortcomings. They argue that a meaningful measure of compactness must allow for comparisons of different districting plans that are not sensitive to population density, physical size, or the number of districts being drawn. They furthermore suggest that measures must apply to districting plans, not to individual districts. In response to this, Fryer & Holden (2011) propose three axioms that they claim any reasonable districting plan should satisfy:9 9In the following description, I quote directly from Fryer & Holden (2011, p. 501). 264 Holden Illinois US District 4 US Congressional districts since 2013 ILLINOIS Chicago Chicago 1.7 mi 0 Figure 3 The “ear muff ” district in Chicago, Illinois. Source: http://nationalatlas.gov, 1 Million Scale project (adapted from Wikimedia Commons; public domain). 1. Anonymity: The index does not depend on the identity of any given voter. 2. Invariance: The index does not depend on a state’s population density, physical size, or number of districts. 3. Clustering: If two states with the same number of voters, the same number of voting districts, and the same value for the minimum-partitioning problem have different total intradistrict distances, then the state with the larger value is less compact. They then demonstrate how this can be calculated (efﬁciently), then rank and map the resulting districting plans using ARC GIS software. Finally, they estimate counterfactual seats-votes curves in several states based on the maximally compact districts. Axiom 2 makes it possible to compare indices that satisfy it across states, a property that many previous measures fail to satisfy. Axiom 3 is essentially what compactness means: One should put voters who are close together in the same district and voters who are far apart in different districts. Axiom 1 ensures that all voters are equally weighted. The Fryer-Holden (hereafter FH) measure of compactness consists of two components. Component N(umerator) sums the squared distance between all pairwise combinations of voters in a district and then it sums those objects over all districts in a state. Component D(enominator) is precisely the component N calculation, but for the districting plan that produces the minimum such sum among all districting plans. The FH index (they call it the relative proximity index, or RPI) is component N divided by component D, for any districting plans in a state. Notice that it necessarily applies to districting plans, not individual districts. It is certainly not surprising that the FH index satisﬁes the three axioms they propose—the index was designed to do just that. What is perhaps more surprising is that they prove the following theorem: Any districting plan satisfying the three axioms ranks districting plans identically to the RPI. That is, given the axioms, the RPI is ordinally unique. www.annualreviews.org • Voting and Elections 265 A serious computation challenge arises, however. The component N is trivial to calculate— it could be done on an iPhone for a modest-size US state. However, calculating component D (the denominator of the index) is computationally burdensome. In fact, in the language of computer science, it is a nondeterministic polynomial-time hard (NP-hard) problem. That is, the computational complexity rises exponentially with the number of voters in a state
. This means, at a practical level, that even using census block data it is impossible to calculate the index for even a medium-size state. Fryer & Holden develop an algorithm based on so-called power diagrams (used in tropical geometry and string theory) that approximates the actual value of the denominator very accurately, but also very computationally efﬁciently. They then calculate it for the districting plans for the 106th Congress, with data from the US census. According to that exercise, the ﬁve states with the most compact districting plans according to the FH index are Idaho, Washington, Arkansas, Mississippi, and New Hampshire, whereas the ﬁve least compact states are Tennessee, Texas, New York, Massachusetts, and New Jersey. It is also interesting to note that the FH index ranks districting plans quite differently to some other popularly used measures. For instance, the rank correlations between the RPI and the dispersion and perimeter measures are −0.37 and −0.29, respectively. A ﬁnal step is that Fryer & Holden are able to estimate counterfactual seats-votes curves for the maximally compact districting plans using Gelman & King’s (1994) method. In the handful of states that they calculate, the maximally compact districting plans are all more responsive than the existing ones. It would be very desirable to understand how general this conclusion is, and what might be the reason for it. A larger issue in political geography than merely calculating what existing districting plans look like is how population shifts over time and voting behavior interact. A series of spectacular papers by Jonathan Rodden and coauthors have shed new light on a range of important issues associated with this.10 Rodden (2010) begins with the observation that in societies with a high degree of geographic mobility, voters will sort into residential areas with similar demographic proﬁles—including political preferences. When there is heterogeneity of such mobility—perhaps due to income differences—there will naturally be a rich distribution of political preferences across districts. Rodden summarizes the recent empirical literature that uses advances in the size and richness of data sets, as well as some of the modern empirical techniques (such as those discussed in the introduction to this article), and combines these data with the theoretical literature on political competition with heterogeneous plurality districts (see Rodden’s paper for the references therein). Putting these two rather distinct literatures together produces a rich set of new insights about how the geographic distribution of political preferences affects the policies (or at least platforms) that candidates and parties choose, and which candidates and parties compete in which elections. A key insight is that, because the distribution of political preferences is left-skewed, Democrats will tend to try and cover a greater range of ideological positions than Republicans. It also provides a rationale, taking preferences to be multidimensional, for why moral-values issues tend to matter more in presidential rather than congressional elections. Rodden & Chen (2013) show that a signiﬁcant amount of partisan bias in US legislative elections is caused by patterns of economic/political geography. Their basic observation is that, for reasons 10One on which we can barely touch here is the importance of local economic conditions for the reelection of incumbents. Ebeid & Rodden (2006) show that the link between voter behavior and macroeconomic aggregates is weak in states where economic conditions are largely out of the control of politicians (e.g., because they are heavily natural resource dependent), but strong in other states. This is a version of the classic signal extraction problem that takes place in principal-agent theory in economics. 266 Holden of urbanization and industrialization, Democrat-leaning voters tend to be concentrated in cities, leading to them winning less than 50% of the seats in elections where they win 50% of the votes. The authors refer to this as unintentional gerrymandering. Their contribution is extremely important in that it focuses our attention on the crucial link between economic and social patterns and electoral outcomes, and it does so in a way that highlights how institutional features of the electoral system interact with those facts. Moreover, the technical approach that they take breaks new ground in developing tools for further study of the links between economic/political geography and electoral outcomes. Rodden & Chen (2013) match precinct-level voting returns from the 2000 US presidential election with the geographic shape ﬁles produced by the US census. This allows them to match to the demographic data contained in the census at the block-group level. They then perform 25 simulations of districting plans for Florida for different possible legislature sizes (2–200). These simulations reveal a pro-Republican bias in the distribution of seats in the legislature. By their estimates, given 50% of the vote, Republicans would win between 56% and 68% of seats in the legislature purely due to geographic features. This is a material effect, even relative to what a sophisticated partisan gerrymanderer could achieve in the absence of geography (see above). In short, it is simply
not possible to ignore geography in thinking sensibly about electoral returns. Moreover, the interaction between strategy gerrymandering (again, see above) and these natural geographic gerrymanders seems like a very promising area of future research. This is an area where big data techniques and mapping technology have been very fruitfully applied. The interested reader is referred to Stanford’s Spatial Social Science Lab (https://sites.stanford.edu/sssl/) for further details. VOTER REGISTRATION AND TURNOUT In electoral systems, such as that in the United States, that require voters to be registered and also allow for voluntary voting, there are two important margins to consider. First, voters have to register, and second, they have to turn out. This leads to an obvious but tricky question: If people do not vote, is it because of barriers to registration or turnout? There are important costs and impediments to both. Registration is often plagued by lack of information, and historically in the United States by direct discrimination. Turnout is often complicated by work or childcare commitments, polling queues, or even the weather. Perhaps surprisingly, this strand of the literature recognized the importance of, and challenges with, obtaining causal inferences. Field experiments (randomized controlled trials) have often been used, allowing the genuine causal effect of a particular intervention to be obtained (see, for instance, Arceneaux & Nickerson 2009; Dale & Strauss 2009; Gerber & Green 1999, 2000; Gerber et al. 2003; Michelson 2006; Nickerson 2006; and very early work by Gosnell 1927). The focus of these papers is on how to get more registered voters to turn out—i.e., the turnout margin rather than the registration margin. On the registration margin, Nickerson (2014) randomly assigns a face-to-face registration drive across 620 streets in 6 cities. He ﬁnds a 4.4% increase in registration and that 24% of those registered as a result of the intervention turn out to vote. He also ﬁnds that the registration effect is larger on poorer streets, but the turnout effect is larger on more afﬂuent streets. Bhatt et al. (2015) use a natural experiment in Massachusetts in 2012 (based on a legal dispute concerning that state’s compliance with federal voter registration requirements) to estimate the causal effect of lowering voter registration costs on voter registration, turnout, and voting behavior in US presidential elections. They use a difference-in-differences and a triple-differences speciﬁcation and under both ﬁnd a statistically signiﬁcant effect on voter registration and turnout that www.annualreviews.org • Voting and Elections 267 is sizable in economic magnitude. Interestingly, conditional on registration, there is no material difference in turnout. There is, however, a large effect on Democratic voteshare. Because, conditional on registration, turnout is not materially different, the authors conclude that the registration margin is the key driver of overall electoral participation. Another set of papers exploits exogenous shifts in the information set of voters to understand the information-turnout margin. Stromberg (2004) ﬁnds that areas with a higher share of radio ownership (and hence subject to more election broadcasts) had higher turnout during the 1920s– 1930s. Gentzkow (2006) ﬁnds that substitution away from media outlets with higher levels of political coverage reduces turnout. There is inherent selection bias in making inferences from observational data about who registers and turns out to vote. Controlling for observable variables is of little help. This strand of the literature—as early as 1927—recognized these problems and used ﬁeld experiments to obtain causal inferences. In more recent times, techniques using natural experiments have also been fruitfully applied by political scientists and economists. ELECTION LAW IMPLICATIONS In this section I brieﬂy consider some of the implications of the previous sections for election law and discuss a handful of recent cases. It is not my purpose here to provide a detailed account of any aspect of the large and important subject of election law. The interested reader is referred to Issacharoff et al. (2012) for a deﬁnitive and classic treatment of those issues. As mentioned above, Vieth v. Jubelirer squarely raises (again) the question of whether there exist judicially manageable standards for adjudicating partisan gerrymandering claims. Social science may play an important role in providing such standards, particularly given the advent of extremely rich data at a detailed geographic level. The work of Rodden and coauthors, discussed above, seems to this author to be a signiﬁcant step in the direction of articulating such a standard. So, too, with which campaign expenditures constitute speech and which do not, social science may play an important role. At the heart of such a distinction—and the level of scrutiny the Court is likely to apply—is the question of
what constitutes content-neutral regulation. Advances in our understanding of how individuals respond to certain speech (e.g., through the use of functional magnetic resonance imaging machines), as well as the ability of computer algorithms to parse speech and text, break it into components, and classify it, all point to the intriguing prospect of a principled, social science–based approach to classifying speech and providing a taxonomy of it. With regard to redistricting, Cox & Holden (2011) take up the matching slices characterization of the optimal gerrymandering strategy and explore several of the implications of it for the VRA and the legal treatment of racial gerrymandering and race-conscious redistricting. One important question is whether requirements within the VRA have any partisan consequences. The two that Cox & Holden consider are those contained in sections 2 and 5. As mentioned in the introduction (and since their paper), the US Supreme Court effectively invalidated section 5 (the so-called “preclearance provisions”) in Shelby County v. Holder. Section 2, which prohibits states from using any voting practice “in a manner which results in a denial or abridgement of ” minority voting rights [42 U.S.C. §2 (1973)], remains constitutional. As noted above, in some instances section 2 has led to a requirement to create so-called majority-minority districts, i.e., districts in which a racial minority constitutes a majority of the voters. Cox & Holden point out that majority-minority districting requirements affect Democratic and Republican gerrymanderers differently. This is because the VRA imposes different constraints on Democratic and Republican redistricting authorities. The requirements of the VRA are consistent 268 Holden with the optimal strategy for partisan gerrymandering by Democrats, because they seek to draw districts with small majorities of African American voters. By contrast, partisan redistricting Republicans would not want to combine African American voters as a majority of any single district but would rather concentrate them into districts where conservative Republicans constitute (small) majorities. In other words, the VRA has differential partisan impact, given the optimal gerrymandering strategies of Democrats and Republicans. It is beyond the scope of this article to go much further into the issue, but one naturally wonders whether a Supreme Court that has ruled section 5 of the VRA unconstitutional might ﬁnd an implicit partisan slant (under the optimal gerrymander) in section 2 unappealing on certain constitutional grounds as well. A second question is whether, if a widely accepted and sensible measure of “oddly shaped” or “not compact enough” were adopted, it would have an important impact on districting practices. For gerrymandering, the question really hinges on patterns of residential segregation discussed above. One thing to note is that geography is more important for the matching slices strategy than pack-and-crack, because matching slices requires more nuanced district creation. Instead of just putting Democrats with Republicans, it requires putting particular Democrats with Republicans (e.g., the most ardent Democrats with slightly smaller slices of ardent Republicans in district 1 of a Democrat matching slices gerrymander). For the creation of majority-minority districts it hinges on this, too. Yet the evidence of how oddly shaped the individual districts giving effect to race-conscious redistricting are suggests that it may, in fact, constrain this enterprise more (see, for instance, the majority opinion in Shaw v. Reno). A third election law question concerns voter identiﬁcation laws. Several recent cases consider such laws in various states (for a notable example, see Frank v. Walker). In the above section on voter registration and turnout, we point to a recent paper by Bhatt et al. (2015) looking at the effect of the costs of registration on turnout and how the treatment effects of this differ by partisanship. Voter identiﬁcation laws, in economic terms, are an increase in registration costs for voters. They have to spend the time and money to obtain a valid government-issued ID. Some voters have it already, some do not. And as the aforementioned case highlights, those who do not are not a representative cross-section of the electorate. The empirical evidence offered by Bhatt et al. (2015) suggests that, aside from what other effects they may have, such laws materially reduce actual voting, and that there is a partisan skew (away from Democrats) to this reduction. CONCLUDING REMARKS Like many subﬁelds in economics and political science, in recent years the study of voting and elections has been fortunate to have much richer data available, and signiﬁcantly more computing power with which to analyze those data. I conclude by suggesting ﬁve important open questions in the ﬁeld. Is gerrymandering self-correcting (at all)? One might wonder whether gerrymandering is, at least to a degree, self-correcting in the sense that by cutting it too ﬁnely a redistric
ter risks a very bad outcome. A big statewide swing could do more damage to a party that has heavily gerrymandered the state than to one that has not. It seems unlikely that gerrymandering is completely self-correcting, because so many resources are devoted to doing it and attempting to be in the position to do it. Yet the O’Connor conjecture (as I refer to it) has some resonance—a risk-averse gerrymanderer should not cut things too ﬁnely. Indeed, we saw above in Table 1 that the optimal gerrymander involves cutting individual districts less ﬁnely as the signal becomes less precise. The key question is how to quantify the self-correcting component. Friedman-Holden matching www.annualreviews.org • Voting and Elections 269 slices tell us how to evaluate this in terms of expected districts won, but it seems essential to know something more about the preferences of the redistricter to fully address the question. How do social connections and networks affect voting behavior? It has been increasingly realized in recent years that much economics activity takes place between people or institutions that are already connected in some manner. Pioneering work in the economics of networks by Jackson & Wolinsky (1996) has sparked a large literature. Indeed, that literature draws heavily on concepts (e.g., Katz-Bonacich centrality) from other parts of the sciences and social sciences. It seems clear, if only from casual inspection of how US primary elections work, that who one is socially connected to is an important determinant of how one votes. Certainly, campaigns that make use of social network data (such as Facebook proﬁles) and use social networking tools themselves seem to think so. Yet, to the best of my knowledge, there is no canonical model of voting on networks. Using graph-theoretic techniques to study how voting on social networks works and changes over time is an important and enticing research agenda. How large an impact do big donors have on electoral outcomes? The Citizens United decision by the United States Supreme Court was viewed in many corners as a boon to big-money donors who already have signiﬁcant inﬂuence over the political process. For instance, The New York Times’ (2010) editorial page put it this way: “With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the nineteenth century.” It even rated a (controversial) mention in President Obama’s subsequent State of the Union address. There is certainly anecdotal evidence that political candidates pander in certain ways to big donors— for instance, the way in which current US Republican presidential hopefuls court casino magnate Sheldon Adelson’s endorsement is known colloquially as “the Las Vegas primary.” However, there is, to the best of my knowledge, little systematic evidence about the impact of big-money donors on electoral outcomes, let alone policy outcomes. It is the latter that should be of primary concern for those who are not politicians themselves. In principle, relatively unfettered big-money access could have a major impact on policy outcomes, or very little. The forces going in the former direction are clear, but there are countervailing forces. First, competition among donors may lead to a lot of money being spent but policy differences cancelling each other out, much like a consumer product advertising war. Second, because politicians cannot make binding policy commitments, donors may not get what they ultimately want. It may be possible to sustain some kind of relational contract, but politicians may not be sufﬁciently long-run players to sustain this. Ultimately, this is an empirical question, and it would be highly desirable to see systematic evidence on the matter. What effect on districting composition does natural geographic sorting have? The work by Rodden and coauthors mentioned previously demonstrates that geographic sorting that occurs for reasons not directly to do with elections may nonetheless have very important effects on elections. Justice Scalia has referred to “natural packing effects” (Vieth v. Jubelirer) that come from geographic sorting, hinting that the pack-and-crack strategy of a gerrymanderer may occur naturally. Because, as we discussed above, that strategy is not the unconstrained optimal one, this particular argument does not appear compelling. But as the Rodden work shows, there is a rich set of other implications of geographic sorting that is only beginning to be explored. To what extent can politicians be removed from the design of political institutions? Going back to where this paper began, with partisan gerrymandering, it is a very peculiar feature of (at least) American democracy that politicians themselves largely draw the boundaries of the electoral districts they end up representing. But this involvement of politicians in the design of the process goes well beyond redistricting. All manner of electoral rules are inﬂuenced, if not determined, by political actors. There is, in principle, no reason why there should not be a clear demarcation
between those who design electoral institutions and those who participate in them. A signiﬁcant question is, can there be such a clear demarcation? One currently topical area seeking to “get 270 Holden politicians out of the design of the political process” is through algorithmic redistricting (Fiﬁeld et al. 2015, Holden 2015). It remains to be seen how successful this can be as a practical matter, and whether such approaches can be extended to other aspects of the design of electoral institutions. There is much work to do to answer these questions, but some of the new social sciences methods and approaches mentioned in this paper provide a useful starting point and set of tools for that work. Moreover, the answers to these and other questions in the ﬁeld will enrich our understanding of how institutional arrangements affect democratic outcomes. The prospect of even richer data, including perhaps those used by campaign organizations themselves, and plentiful computational power for analyzing and representing analyses of those data is as enticing as it is important. 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 I thank Rosalind Dixon, Martin Krygier, and an anonymous editor for helpful discussions and comments, and acknowledge the Australian Research Council for support under Future Fellowship FT130101159. I also thank Adam Cox, John Friedman, and Roland Fryer, with whom I have coauthored several papers over the years on topics discussed here. LITERATURE CITED Angrist JD, Pischke J-S. 2009. Mostly Harmless Econometrics: An Empiricist’s Companion. Princeton, NJ: Princeton Univ. Press Ansolabehere S, Snowberg EC, Snyder JM. 2006. Television and the incumbency advantage in U.S. elections. Legis. Stud. Q. 31:469–90 Ansolabehere S, Snyder JM. 2002. The incumbency advantage in U.S. elections: an analysis of state and federal ofﬁces, 1942–2000. Elect. Law J. 1(3):315–38 Ansolabehere S, Snyder JM Jr., Stewart C III. 2000. Old voters, new voters, and the personal vote: using redistricting to measure the incumbency advantage. Am. J. Polit. Sci. 44:17–34 Arceneaux K, Nickerson DW. 2009. Who is mobilized to vote? A re-analysis of seven randomized ﬁeld experiments. Am. J. Polit. Sci. 53:1–16 Avery v. Midland County, 390 U.S. 474 (1968) Baker v. Carr, 369 U.S. 186 (1962) Bhatt R, Dechter E, Holden R. 2015. Registration costs and voter turnout: evidence from a natural experiment. Work. Pap., Univ. New South Wales, Sydney, Aust. Buckley v. Valeo, 424 U.S. 1 (1976) Burnham WD. 1970. Critical Elections and the Mainspring of American Politics. New York: W.W. Norton Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) Colegrove v. Green, 328 U.S. 549 (1946) Cox AB, Holden R. 2011. Reconsidering racial and partisan gerrymandering. Univ. Chicago Law Rev. 78:553 Cox GW, Katz JN. 2002. Elbridge Gerry’s Salamander: The Electoral Consequences of the Apportionment Revolution. Cambridge, MA: Cambridge Univ. Press Dale A, Strauss A. 2009. Don’t forget to vote: text message reminders as a mobilization tool. Am. J. Polit. Sci. 53:787–804 Davis v. Bandemer, 478 U.S. 109 (1986) Ebeid M, Rodden J. 2006. Economic geography and economic voting: evidence from the U.S. states. Br. J. Polit. Sci. 36:527–47 www.annualreviews.org • Voting and Elections 271 Fiﬁeld B, Higgins M, Imai K, Tarr A. 2015. A new automated redistricting simulator using Markov chain Monte Carlo. Work. Pap., Princeton Univ., Princeton, NJ Frank v. Walker, No. 14-2058 (7th Cir. 2014) Friedman JN, Holden RT. 2008. Optimal gerrymandering: Sometimes pack, but never crack. Am. Econ. Rev. 98:113–44 Friedman JN, Holden RT. 2009. The rising incumbent reelection rate: What’s gerrymandering got
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berry v. Sanders, 376 U.S. 1 (1964) Wilmot P. 2004. Gerrymandering began here; let’s end it here. Boston Globe, April 16 272 Holden Voting and Elections: New Richard HoldenAbstract This review seeks to establish takings as a respected ﬁeld of sociolegal inquiry. In the legal academy, the term takings has become synonymous with constitutional takings. When deﬁned more broadly, however, a taking is when a person, entity, or state conﬁscates, destroys, or diminishes rights to property without the informed consent of rights holders. Adopting a more expansive conception of takings lays the groundwork for a robust interdisciplinary conversation about the diverse manifestations and impacts of involuntary property loss, where some of the most valuable contributions are made by people who do not consider themselves property scholars. This review starts the conversation by bringing together the empirical literature on takings published between 2000 and 2015 and scattered in the ﬁelds of law, economics, political science, sociology, psychology, geography, and anthropology. Most importantly, a robust understanding of property’s multiple values is required to fully comprehend the magnitude of the loss associated with takings, and this creates a space in which scholars can rescue property’s political, cultural, emotional, and social value from the sizeable shadow cast by the overly dominant focus on its economic value. 171 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION When asked about their property’s value, most people would respond by reciting its economic value. But, in reality, property has economic value as well as social, emotional, political, and cultural value. Economically, property is a commodity, and its value is determined by market exchange. Accordingly, property—such as a house owned by a property developer and intended for resale— involves economic gains and losses and is the basis of livelihoods. Socially, property establishes the spatial boundaries in which interpersonal and community engagement occurs (Singer 2000a,b). A home is more than a physical structure; it is a claim to a speciﬁc space that places a person in proximity to particular people with whom they are likely to form positive or negative relationships. Additionally, property is one important way that people communicate their social status to the larger community. Emotionally, property has nonmaterial value based upon sentimental attachments (Radin 1982). A childhood home, a wedding ring, and a family heirloom are all typical examples of material things that exist in tandem with emotional landscapes, which suffuse them with signiﬁcant intangible value. Politically, property serves as a bulwark against state encroachment on individual autonomy (Reich 1964). Although people cannot remodel a public building to reﬂect their individual style, walk around naked in a federal building, or exclude other citizens from a public park at will, all of these activities are allowed in privately owned property, where citizens have greater autonomy to live the kinds of lives they have reason to value. Also, since states exercise control over bounded territories, without property there is no effective political sovereignty. Culturally, individual and group identities are often closely tied to a particular geographic space, and so it is not uncommon for a neighborhood or city to become an indispensable part of a person’s identity. Individual and group identity can also arise from a physical thing like a home, which can reﬂect a person’s unique personality and become intertwined with their sense of self (Radin 1982). In addition, cultural belief systems at times infuse certain pieces of property with deep meaning, rendering these material things sacred. When sociolegal scholars transgress disciplinary boundaries, they can obtain a more nuanced understanding of property’s numerous values. The same piece of property can have different meanings to different people, and the meaning can be singular or multilayered. A house, for instance, could be solely an economic commodity to one person, but to another it could have economic, cultural, and emotional value. When meaning is contested in this way, one set of meanings is not right and the other wrong. Instead, it is important to embrace the full range of meanings. Research conducted within the conﬁnes of one discipline, however, is not conducive to this comprehensive approach because different disciplines emphasize different aspects of property’s value and have developed literatures that accord with these focal points. For instance, economists typically focus on property’s economic value, whereas anthropologists have developed a substantial literature emphasizing its cultural, social, and emotional value. Using the rich and ample literature concerning involuntary property loss, this review places studies from disparate disciplines and methodological orientations in conversation with one another to shed light on property’s multiple values with the hope of rescuing its political, cultural, emotional, and social value from the sizeable shadow
cast by the prevalent, singular focus on its economic value. More speciﬁcally, this review brings together the empirical literature on involuntary property loss published between 2000 and 2015, and scattered in the ﬁelds of law, economics, political science, sociology, psychology, geography, and anthropology.1 For present purposes, 1History is excluded only because there is a signiﬁcant literature that examines property through a historical lens, and hence this topic warrants a separate article. Also, although the empirical literature explored covers only the last 15 years, the normative and doctrinal work discussed has no date limitations. 172 Atuahene discussion is limited to empirical articles (and some books) on involuntary property loss that used qualitative or quantitative data to answer an explicitly stated research question, and that included substantial information about methods of data collection and analysis. Although this review is not intended to be exhaustive, it highlights the key questions that scholars have examined, illustrates how the use of different methodological approaches can more effectively illuminate the answers to these key questions, reports the major ﬁndings, and explores opportunities for future research by locating the gaps in the existing literature. This review has two main goals. The ﬁrst is to broaden our understanding of takings and convince readers that the widespread phenomenon of involuntary property loss should become a key focus area for sociolegal scholarship. One form of involuntary property loss is constitutional takings. In the legal literature, the term takings is used interchangeably with the term constitutional takings (Epstein 1985), but this review considers takings more broadly. A taking is when a person, entity, or state conﬁscates, destroys, or diminishes rights to property without the informed consent of rights holders. Takings differ in terms of who is doing the taking, what types of property rights are taken, how those rights are taken, what constitutes lack of consent, who is the person or community experiencing the taking, and what rights these people have to the property. Takings sometimes involve one actor unjustly conﬁscating the property of another, whereas other times takings involve conﬂicting property rights (i.e., two different parties with legitimate claims to the same property). Takings can deprive people of dignity, and also confer people with dignity. That is, takings are complex. The expanded takings framework allows scholars from different disciplines and methodological orientations to enter into a generative dialogue about involuntary property loss. This crucial conversation includes anthropologists using ethnography to study how inheritance laws strip Indian woman of their rights to control and own property (Kamei 2011); economists using regression analysis to measure the economic impact of giving squatters title to the lands they illegally occupy in Peru (Field 2007); political scientists using public opinion surveys to understand the circumstances under which owners of assets gained through Russia’s corruption-riddled privatization programs can increase the perceived legitimacy of their ill-gotten gains (Frye 2006); psychologists using controlled experiments to investigate the circumstances under which American citizens believe that constitutional takings are just or unjust (Nadler & Diamond 2008); psychiatrists using semi-structured interviews to document the emotional, social, and cultural consequences of losing one’s home and entire community as a result of urban renewal programs (Fullilove 2004); geographers using surveys of households in Northern Mozambique to evaluate the circumstances under which people returning to their lands are most likely to upend post-war peace (Unruh 2001); lawyers using semi-structured interviews and ethnography to chronicle the destructive policies of US family courts, which are penalizing and imprisoning indigent fathers who are withholding child support payments because they are unable to pay (Brito et al. 2015); and historians using archival records to describe the full extent of the looting, burning, and destruction of African American property during and after the Tulsa race riots (Brophy 2016). The one thing that these wildly different topics from various regions and historical periods have in common is that they each involve some form of involuntary property loss. The takings framework allows these researchers to enter into a systematic and important conversation about involuntary property loss although they may not be property scholars. The second goal of this review is to argue that a focused discussion about involuntary property loss gives critical insight into property’s manifold values. A taking brings loss, and fully comprehending the magnitude of the loss requires a robust understanding of the lost property’s value. In addition, research shows that people consistently value items they possess more than things they have yet to acquire, often without even realizing this is the case. This phenomenon goes by www.annualreviews.org • Takings as a Sociolegal Concept 173 different names: Thaler (1980) calls it the endowment effect, Samuelson & Zeckhauser (1988) use the term status quo bias, and Kahneman & Tversky (1984) refer to it as loss aversion. Regardless
of the moniker used, for things we possess, value is intensiﬁed. Consequently, when property in someone’s possession is taken against that person’s will, this presents a unique opportunity to understand the property’s full value, which includes its market as well as its often unrecognized nonmarket values. To accomplish these two goals, this review is divided into ﬁve sections. The ﬁrst section discusses new legal realism (NLR), which is an intellectual movement that has championed an interdisciplinary approach to the empirical study of the law. The remaining sections illustrate why adopting NLR’s interdisciplinary approach can enrich the conversation about involuntary property loss. The second section reviews the existing empirical literature on the most prominent type of takings—constitutional takings. The third section expands the takings conversation beyond constitutional takings by introducing the concept of a dignity taking and the body of work associated with it. The section shows how scholars from different disciplines have used the idea of a dignity taking to discuss wide-ranging cases of involuntary property loss previously thought to be unrelated. To further develop the idea of takings as a sociolegal concept, the fourth section explores the various mechanisms by which involuntary property loss occurs, including through trespass, families, markets, and natural or man-made disasters. The ﬁfth section highlights areas where future research is necessary. NEW LEGAL REALISM NLR is an inclusive intellectual movement initiated a decade ago by a group of sociolegal scholars who were looking for an alternative to the law-and-economics discourse that currently dominates the empirical study of law (Erlanger et al. 2005, Macaulay 2005, Macaulay & Mertz 2013, Mitchell 2005, Nourse & Shaffer 2009, Suchman & Mertz 2010). Moving beyond disciplinary work is one of the deﬁning characteristics of NLR. Scholars that identify with the movement come from a variety of disciplines, such as law, political science, sociology, psychology, economics, geography, anthropology, and history, and there is an ongoing debate about how researchers from different disciplines should address common questions or problems. There are several existing approaches, including disciplinary research (“projects that take place within the boundaries of currently recognized academic disciplines”), multidisciplinary research (“different academic disciplines that relate to a shared goal, but with multiple disciplinary objectives. Participants exchange knowledge, but they do not aim to cross subject boundaries to create new integrative knowledge and theory”), interdisciplinary research (“disciplines integrate disciplinary knowledge to create new knowledge and theory and achieve a common research goal”), and transdisciplinary research (“academic researchers from different unrelated disciplines as well as nonacademic participants... create new knowledge and theory and research a common question”) (Tress et al. 2005, p. 488). Without taking a position about whether multidisciplinary, interdisciplinary, or transdisciplinary research is best, this review encourages scholars who think about involuntary property loss to look beyond their chosen disciplines and favored methodologies. Disciplinary as well as methodological diversity are pivotal tenets of NLR (Erlanger et al. 2005). Because a foundational principle of NLR is that a scholar’s research question should drive her chosen methodology, not vice versa, it makes room for qualitative methods like interviews, ethnography, content analysis, case study, and discourse analysis, as well as quantitative methods, including statistical analysis, modeling, structured surveys, and experiments. Like its predecessor— legal realism (Cohen 1931, Kalman 1986, Llewellyn 1931)—NLR emphasizes the centrality of facts and empirical evidence and posits that doctrine and formal laws are not enough to arbitrate 174 Atuahene legal disputes and answer legal questions. But, the new realists are actually involved in generating sophisticated empirical evidence in a variety of areas, instead of just encouraging its use or generating makeshift evidence primarily in the area of judging, as did the original realists (Schlegel 1979). NLR stands in the gap, translating empirical social science for legal professionals while also translating law for social scientists (Erlanger et al. 2005). Another principle of NLR is that interdisciplinary research should be conducted from the bottom up as well as from the top down (Erlanger et al. 2005). Bottom-up research (also known as law in action) involves reaching beyond legal documents and adopting methods that allow scholars to see how the law actually works in practice. It also requires scholars to hear from the people most affected by the law or policy in question, and to amplify voices that have traditionally been silenced in discourse and in practice. In contrast, top-down research (also known as law in the books) focuses on analyzing the formal documents and policies used to create, enforce, and interpret the law. NLR posits that the most holistic way to explore legal phenomena is by embracing both parts of this two-sided approach. As the following sections show, NLR can contribute to cross-disciplinary conversations about takings, just as these
conversations can contribute to the development of NLR. CONSTITUTIONAL TAKINGS There are many categories of takings. One is constitutional takings, which includes both physical and regulatory takings. Most constitutional democracies allow the state to take property so long as it is for a public use or purpose and the state pays just, fair, or appropriate compensation (Van der Walt 1999). There is a signiﬁcant legal literature on the topic, and the main debates revolve around the questions of what constitutes a public purpose and what factors should be included or excluded in calculations of just compensation (Epstein 1985, Garnett 2006, Michelman 1967, Radin 1982, Rose 1996). In the area of regulatory takings, scholars have debated the point at which a law or regulation that drastically diminishes a property’s economic value crosses the line and becomes a constitutional taking (Byrne 1995, Fischel 1995, Miceli & Segerson 1994). There are similar discussions about when regulatory action activates the takings clauses in investment treaties (Cohen & Radnoff 1998, Dearden 1995). All these debates are most often based on doctrinal analysis and normative propositions with no bottom-up, empirical investigation of what citizens view as a legitimate public purpose, how they think just compensation should be calculated, and when they believe regulation crosses the line. But our understanding of constitutional takings is deeply enriched once we identify, analyze, and have a coherent discussion about the empirical literature on constitutional takings from different disciplines. There has been much empirical work examining the controversial US Supreme Court decision in Kelo v. City of New London, which allows states to use their eminent domain powers to take private property without owner consent and give it to private-sector developers, so long as the state pays just compensation and the planned development has the potential to generate economic growth for the city. Kelo caused uproar in the legal academy and the media, as well as in national and state legislatures. A review of various public opinion polls showed that most people surveyed disliked the Kelo decision despite their party afﬁliation, race, socioeconomic status, and level of educational attainment (Nadler et al. 2008). Kelo’s controversial expansion of the Fifth Amendment’s public purpose requirement caused 46 states to pass legislation or constitutional amendments restricting their recently expanded eminent domain powers. Empirical analyses conducted by a pair of political scientists and an economist trained in law have attempted to account for variation in the substance of the various statutes passed. Through multivariate tests of several leading theories, Sharp & Haider-Markel (2008) found that interest groups, the perception of prior eminent domain abuse, and reform origination (i.e., www.annualreviews.org • Takings as a Sociolegal Concept 175 voter-initiated ballots versus legislative reform) explained signiﬁcant variation in state-level responses to Kelo, whereas citizens’ ideological orientation, crowded legislative agendas, and a lapsed year due to legislatures not being in session did not. Using logistic regression, Morriss (2009) conducted a more reﬁned study, which revealed that substantive restrictions—those that actually constrained the state’s power to use eminent domain on paper and in practice—were more likely to be enacted in states with higher economic growth, less spending and revenue restrictions, and a Republican-dominated legislature with a Democratic governor. The electorate’s overall ideology concerning environmental, liberal, or conservative causes, as well as higher levels of inequality and higher percentages of African Americans in the state’s population, had no impact on the type of response legislatures adopted. Although the two studies used different quantitative approaches and the authors had different disciplinary starting points, one conclusion emerges from both studies: The ideological orientation of the electorate did not impact the nature of the legislative response. This is surprising because conservative groups like the Castle Coalition spearheaded the state-level legislative responses to Kelo; nevertheless, it seems that their message resonated with liberals and conservatives alike. But if it was not ideology driving the backlash, then what was it? To better understand the speciﬁc factors at play, Nadler & Diamond (2008) use experiments and a follow-up survey to investigate the circumstances under which average citizens believe that constitutional takings are just or unjust. They ﬁnd that what matters even more than the purpose of the taking is how long the person owned the property, and the degree of autonomy owners had in the process. Similarly, Becher (2014) uses mixed methods to explore how people in Philadelphia decide whether the city’s use of eminent domain is legitimate or illegitimate. To understand the big picture, she compiled a census of 7,000 properties that the city took using eminent domain over 16 years and analyzed their qualities compared with the city’s 550,000 private properties. Then, for a more ﬁne-grained analysis of the issue, she interviewed various stakeholders. Becher ﬁnds that

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