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most often dissatisfaction arises when decision makers do not abide by the complex logic of “property as investment,” which values and rewards a broad range of economic, emotional, and temporal investments made by owners, renters, and neighbors. She also ﬁnds that claims about the sacredness of property rights resonate with conservatives and liberals alike, but these arguments are deployed only after conﬂict develops over a speciﬁc taking. So, what makes constitutional takings legitimate or illegitimate in the popular imagination? Becher, a sociologist, uses mixed methods to develop an intricate and multilayered hypothesis, whereas Nadler & Diamond, trained in law and psychology, test discrete hypotheses and isolate causation using quantitative methods. It would be productive if Nadler & Diamond tested Becher’s hypotheses using their experimental methods. But this type of productive, intellectual leapfrogging happens only when takings scholars are in conversation with one another; this is why NLR and its call for more interdisciplinary, empirical work is so important. In addition to exploring popular reactions to eminent domain, it is important to understand the practical impacts of constitutional takings jurisprudence. Nollan v. California Coastal Commission and Dolan v. City of Tigard are the leading Supreme Court decisions concerning exactions, which are the conditions and payments that municipalities impose on developers who want to obtain development permits and other approvals. In deciding when exactions become subject to the takings clause, the Court transformed local land use policy and practice by creating a new standard: Exactions must bear an essential nexus and be roughly proportional to the development’s impact. Without empirical evidence about the impact of Nollan and Dolan, legal scholars have been relegated to speculation, and one scholar assumes that “given the variable political, economic, and environmental contexts of local land use regulation, the Court’s exactions doctrine is unlikely to achieve its apparent purposes of protecting robust property rights and restraining municipalities’ tendencies to overregulate” (Fenster 2004, p. 652). But only by 176 Atuahene empirically testing the Court decisions’ effect on regulation can we more clearly understand the impacts of the Supreme Court’s takings jurisprudence. Using surveys, interviews, archival research, and case studies, Carlson & Pollak (2001) perform a comprehensive, multi-method inquiry into how urban planners—who create and manage the exactions levied by various California municipalities—have responded to Nollan and Dolan. They found that once these urban planners had a discrete legal standard to follow, they adjusted their best practices to ensure legal compliance and avoid legal disputes. Many of these planners now prepare reports to justify and document their rationale for the exactions, and thus the majority of planners surveyed viewed the court decisions as establishing good planning practices rather than as unduly narrowing their discretionary powers. Also, in communities with large amounts of developable land, planners reevaluated their policies in light of the new standard and concluded that higher fees were justiﬁed because, without a discrete legal standard consecrated by the Supreme Court, they were cautiously undercharging. So the empirical evidence suggests that, in certain circumstances, the problem was too much caution and not overregulation, as certain scholars assumed (Fenster 2004). If, in the NLR tradition, legal scholars rethought their normative and doctrinal positions in light of empirical evidence such as this, more rigorous legal analysis would result. There are other empirical analyses of the impact of constitutional takings; namely, there is a signiﬁcant literature on the racialized impacts of urban renewal (Avila & Rose 2009, Gotham 2001, Sugrue 2014). After the Supreme Court decided that eliminating blight was a constitutionally acceptable public purpose in Berman v. Parker, many local governments began using their powers of eminent domain to condemn and demolish entire communities located in America’s inner cities. African Americans were most severely impacted, and the damage done was not only economic but also social, emotional, cultural, and political. In her acclaimed article, “Property and Personhood,” Radin (1982) argues that people often develop sentimental attachments to property, which gives it considerable intangible value and allows it to become bound up with their identities. As a result, depriving people of this property can have serious emotional and cultural consequences. Mindy Fullilove—a board-certiﬁed psychiatrist and public health professor at Columbia—provided robust empirical documentation of the emotional, social, and cultural consequences of losing one’s home and entire community, validating Radin’s arguments. Through in-depth interviews with people subjected to urban renewal during the 1950s and 1960s, Fullilove found that these displaced populations often suffered from what she calls root shock: “the traumatic stress reaction to the destruction of all or part of one’s emotional ecosystem” (Fullilove 2004, p. 11). Root shock can result from urban renewal, as well as from other forms of state-led displacement
, natural disasters, war or conﬂict, and the simmering effects of gentriﬁcation. Fullilove ﬁnds that when people have been displaced from their homes and property, this can create psychological trauma; anxiety; destabilized anchoring relationships; and weakened communities more vulnerable to negative forces, chronic illness, and even death. More signiﬁcantly, these consequences can extend to multiple generations of people. In sum, it is only through interdisciplinary examination that we can begin to fully understand the psychological, professional, political, racial, social, and economic impacts of constitutional takings. An interdisciplinary examination of constitutional takings also brings to light the value of property, which goes well beyond its economic worth. In Kelo, despite the fact that the state paid just compensation for the condemned properties, legislators and citizens were nevertheless united in their disdain for the decision. People of all ideological orientations were averse to giving the state the power to take someone’s house to promote economic development because this would undermine the tangible and intangible investments it took to transform those physical houses into homes, which are often saturated with emotional and cultural value. In the area of exactions, www.annualreviews.org • Takings as a Sociolegal Concept 177 Takings Dignity takings Regulatory takings Constitutional takings Physical takings Figure 1 Different types of takings. property serves as a buffer against the state, foregrounding property’s political value. The Supreme Court standard established by Nollan and Dolan draws a line that helps the urban planners who create exactions understand when they have exceeded their power to negotiate a legally acceptable economic quid pro quo and have instead encroached upon an owner’s freedom to develop her property as she sees ﬁt. The research on urban renewal emphasizes property’s social, emotional, and cultural values because the demolition of physical communities destroyed important social bonds, along with the emotional and cultural investments made in the homes and neighborhoods dismantled. This brief review of the empirical literature on constitutional takings exhibits the diverse values of property. DIGNITY TAKINGS Although there are different mechanisms by which takings occur (see Figure 1), in the legal academy, the scholarship on involuntary property loss has been dominated by discussions of constitutional takings. Consequently, I developed the concept of dignity takings to expand the conversation and encourage scholars to systematically identify and explore instances where individuals or communities are deprived of their property as well as their dignity. In my book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program (Atuahene 2014b), I use the South African case to empirically develop the concept of a dignity taking, which I deﬁne as when a state directly or indirectly destroys property or conﬁscates various property rights from owners or occupiers and the intentional or unintentional outcome is dehumanization or infantilization (Atuahene 2014a, 2016). To qualify as a dignity taking, there must be involuntary property loss as well as evidence of the intentional or unintentional dehumanization (the failure to recognize an individual’s or group’s humanity) or infantilization (the restriction of an individual’s or group’s autonomy based on the failure to recognize and respect their full capacity to reason) of dispossessed or displaced individuals or groups, which scholars can prove through top-down or bottom-up empirical investigation. In the NLR tradition, statements of authorities, court 178 Atuahene records, laws, and policy documents constitute top-down evidence, whereas interviews, oral histories, newspaper stories, diaries, and meeting transcripts that reﬂect the views of dispossessed people serve as bottom-up evidence. The dignity takings framework accomplishes four primary objectives: (a) It moves beyond the dominant yet narrow dialogue around constitutional takings and provides a vocabulary to describe and analyze the more egregious takings that vulnerable populations have routinely been subjected to across the globe and in different historical periods; (b) it stitches together events of property dispossession that were previously thought unrelated; (c) it allows people who do not consider themselves property scholars to participate in a generative conversation about involuntary property loss; and (d ) it captures the material impacts of property conﬁscation as well as the intangible ones that, in public discourse, have become invisible. In We Want What’s Ours, I argue that when there has been a dignity taking, the remedy must move from mere reparations (compensation for material things conﬁscated) to dignity restoration, which is a remedy that seeks to provide dispossessed individuals and communities with material compensation through processes that afﬁrm their humanity and reinforce their agency (Atuahene 2009; 2011; 2014a,b; 2016). The concept of dignity restoration provides a language and space to discuss how to best remedy a dignity taking, while reimagining the purpose and potential of redress. Dignity takings and dignity
restoration are concepts birthed through labor-intensive data collection and analysis, including 150 interviews conducted with South Africans whom colonial and apartheid authorities forcibly removed from their properties, as well as nine months of participant observation within the South African Land Restitution Commission (see Table 1). In a Law & Social Inquiry symposium, several scholars from various disciplines have moved beyond the South African case to empirically examine and extend the concepts using a wide array of other cases, including the separation of Hopi people from their sacred lands (Richland 2016); the dispossession and displacement of Israel’s Arab citizens (Kedar 2016); the looting, burning, and destruction of African American property during and after the Tulsa race riots (Brophy 2016); the taking of Jewish property in France and the Netherlands during World War II (Veraart 2016); the forced evictions in China intended to create space for its rapidly expanding cities (Pils 2016); the racially restrictive covenants in the United States (Rose 2016); the property taken from the loyalists after the American Revolution (Hulsebosch 2016); and the requirement that all married women give their property to their husbands under the laws of coverture (Hartog 2016). Through Table 1 Dignity takings versus dignity restoration—the South African case Dignity taking: the harm Dignity restoration: the remedy Property Conﬁscation of ownership or tenancy rights Return of conﬁscated property, provision of alternative property, ﬁnancial compensation, or other equitable remedies Equal human worth Dehumanization—failure to recognize an individual’s or group’s humanity Establish that dispossessed people are respected members of the political community with voices capable of being heard Autonomy as independence Infantilization—restriction of an individual’s or group’s autonomy based on the failure to recognize and respect their full capacity to reason Give dispossessed people agency in the process, allowing them to have a signiﬁcant role in deciding how they are made whole Autonomy as interdependence Community destruction—community members are dehumanized or infantilized, involuntarily uprooted, and deprived of the social and emotional ties that deﬁne and sustain them Provide resources and opportunities for uprooted communities to meaningfully reconnect through the restorative process www.annualreviews.org • Takings as a Sociolegal Concept 179 rigorous empirical work, these scholars have greatly improved and clariﬁed the dignity takings and dignity restoration frameworks (Atuahene 2016). The case studies on takings from Arabs in Israel and the Hopi people in the United States underscore the origins of many dignity takings, which is the subjective determination of what constitutes property and who owns it (Kedar 2016, Richland 2016). By claiming that native peoples never owned the land in the ﬁrst place, property conﬁscation is rendered invisible in a game of legal smoke and mirrors played by many conquering nations. The experiences of the Hopi also illuminate the iterative potential of dignity takings because they were subject to multiple takings in the gradual erosion of their property rights (Richland 2016). In addition, scholars have pointed out the limits of the dignity takings framework. A dignity taking has two necessary elements: (a) loss of property and (b) loss of dignity (deﬁned as dehumanization or infantilization). Consequently, as highlighted by the case of racially restrictive covenants (Rose 2016), dignity takings apply only to the conﬁscation of property and not to the taking of an opportunity to acquire property. Also, from the case study on coverture—which is a legal doctrine dismantled during the twentieth century that prohibited a wife from owning property or entering into contracts in her own name—we come to understand that institutions like marriage can be simultaneously dignity degrading and dignity enhancing (Atuahene 2016, Hartog 2016). Without close examination, a dignity taking can quietly lurk behind this duality, hiding in plain sight. As the case of coverture shows, although the dignity takings framework can bring conceptual clarity to messy realities, this is not always true. While it may be accurate to describe a wife’s extinguished property rights as a dignity taking, the larger, more invidious problem is the invisible, constant, and normalized oppression of women. Scholars have also elaborated on dignity restoration, which is about putting dispossessed individuals and groups in the driver’s seat and allowing them to have signiﬁcant say in how they are made whole. Dignity restoration is a remedy for dignity takings, but not exclusively so. It is also a remedy for other types of takings. Also, because dignity takings most often occur alongside a slew of non-property-related dignity deprivations, such as rape, detainment, death, disappearance, and violence, it is crucial that dignity restoration occurs in
tandem with other measures of redress. If not, property conﬁscation will be exalted over other types of suffering, and those who never had an opportunity to own property in the ﬁrst place will be unjustly disadvantaged. In addition to the Law & Social Inquiry symposium, there will be a second symposium in the Chicago-Kent Law Review in which anthropologists, ethnomusicologists, lawyers, sociologists, political scientists, historians, and education scholars will use disparate cases to empirically explore whether a dignity taking has occurred and to assess what type of dignity restoration may be required. Contributors will use their discipline’s methodological tools and analytic frameworks to examine the two concepts in contexts such as criminal punishment, labor relations, war, and collective property. First, scholars in the symposium will clarify which forms of criminal punishment qualify as a dignity taking. The cases explored are the hidden sentences of criminal punishment (Kaiser 2017), criminal punishment in the Massachusetts Bay Colony (Acevedo 2017), incarceration in modern America (Alexander & Miller 2017), the Chicago police torture reparations ordinance (Baer 2017), and gang injunctions in American cities (Yuille 2017). Second, scholars participating in the symposium also investigate how dignity takings arise in the context of labor relations. During chattel slavery, slaveholders stole the wages of African Americans (Henderson 2017), and it is not uncommon today for unscrupulous employers to steal the wages of undocumented citizens by providing only partial payment (Rosado Marz´an 2017). The symposium also explores when and how employers subject foreign-born workers to dangerous working conditions that lead to bodily injuries and fatalities (Rathod & Nadas 2017). Third, war and political conﬂict have caused massive dispossession all over the world. Colombia’s ongoing civil war has displaced millions of its citizens (Guzm´an-Rodr´ıguez 2017); civilian property has been damaged and 180 Atuahene destroyed in the West Bank and Gaza Strip by the Israeli military (Bachar 2017); and Iraqi Kurds have been subjected to multiple waves of violent, state-led displacement under both Hussein’s Baath regime and ISIS (Albert 2017). Fourth, people have been deprived of important collective property through various mechanisms. This is evident in the case of the closure of King-Drew hospital in Los Angeles (Ossei-Owusu 2017), the shuttering of gay bathhouses in New York at the height of the HIV/AIDS epidemic (Engel & Lyle 2017), the controversial closure of public schools in Chicago (Shaw 2017), the demolition of Japantown in Sacramento due to urban renewal ( Joo 2017), and the unconsented taking and transformation of the Native American image into a savage mascot used by many sports teams (Phillips 2017). The concepts of dignity takings and dignity restoration were created through a bottom-up analysis of South Africa’s land restitution program, and these concepts are now being revised and strengthened through case-speciﬁc, empirical interrogation. This interdisciplinary, multi-method approach to building a theoretical framework is a nice example of NLR at work. In sum, the very purpose of the dignity takings framework is to highlight the importance of reaching beyond the economic value of property to investigate the role of dignity. Likewise, dignity restoration is about providing compensation for the economic losses as well as the dignity harms involved. Like with urban renewal, social, cultural, and emotional damage occurs when a dignity taking entails the destruction of an entire community and the various intangible investments made in those spaces. Dignity takings can also entail estrangement from buildings and artifacts that constitute one’s identity as well as other physical things that have sentimental value, which can cause emotional damage. Additionally, when individuals or entities conﬁscate property, dispossessed populations are deprived of an important political buffer against state incursions on their autonomy. Consequently, fully understanding the harms implicated in a dignity taking requires recognition of property’s multiple values. TAKINGS EFFECTED THROUGH VARIOUS MECHANISMS In addition to constitutional takings and dignity takings, there are a variety of other types of takings effected through various mechanisms. Based on a close examination of the empirical articles I identiﬁed for this review, I discovered four speciﬁc mechanisms: trespass, families, markets, and natural or man-made disasters. The goal of this section is not to provide a comprehensive list of all types of takings; rather, the goal is to bring attention to the work on involuntary property loss that scholars from various disciplines have completed using diverse methods and, more importantly, to put the articles in conversation with each other to better understand how each mechanism operates. Although the subject matter examined in some of the following articles may qualify as a dignity taking, the authors did not make this argument, and so it is up to future researchers to make this
determination through empirical investigation. Takings by Trespass Squatting is the illegal occupation of property, and thus squatters are performing takings. Many studies have examined the impacts of formalizing illegal property arrangements by giving squatters title to the lands upon which they are trespassing, and Hernando de Soto (1989, 2000) has been a controversial yet dominant voice in this debate. He argues that capitalism is ﬂourishing in the West but failing everywhere else because people have formal legal title to their property in the West, whereas in the developing world, many people are squatting on land they do not own. These assets are dead capital because they are trapped in the informal sector where people cannot safely use them as collateral for productive investments. De Soto’s call for massive titling programs has www.annualreviews.org • Takings as a Sociolegal Concept 181 spurred a large body of work about not only the economic impacts of giving squatters title to the lands they occupy, but also the emotional, social, political, and cultural impacts of titling. In terms of economic impacts, some scholars have found that titling improves tenure security (Do & Iyer 2008, Gilbert 2002, Schweigert 2006, Varley 1987), spurs investment (Alston et al. 1996, Deininger & Ali 2008, Field 2005), improves productivity (Do & Iyer 2008, Field 2007, Schweigert 2006), and increases property values ( Jimenez 1982, Lanjouw & Levy 2002), whereas others have found that these economic impacts do not exist, especially where informal property rights serve as an effective substitute for formal rights (Besley 1995, Gilbert 2002, Jacoby & Minten 2007, Lanjouw & Levy 2002, Omura 2008, Payne et al. 2009, Van Tassel 2004, Ward et al. 2011, Williamson & Kerekes 2011). To explore how tenure security is obtained without title, Van Gelder (2010) uses interviews and ﬁeld observations in a Buenos Aires squatter settlement. He ﬁnds that although this informal settlement initially resisted the state, in the settlement’s gradual march toward legality, it alternated strategies of noncompliance and compliance. Incrementally, informal rules were replaced by formal law, the state granted the infrastructure and services so desperately needed, the settlement’s legitimacy increased, and tenure became more secure, even though the squatters never received formal titles. Moving beyond titling’s economic impacts, scholars have also explored the social, political, emotional, and cultural impacts of titling programs on women. The literature details how women’s land rights have been protected and undermined in various titling processes and cautions that there is no one right way to protect the interests of women; instead, gender protective efforts should be context speciﬁc (Deere & Leon 2011, Joireman 2008, Varley 2010). In addition, studies have found that the tenure security achieved through titling led to increased self-esteem and expanded civic involvement (Ward et al. 2011). But a study of squatters-cum-owners found that titling did not promote residential mobility and the social beneﬁts entailed therein. Researchers conducted interviews within eight squatter settlements in Bogot´a and Mexico City in the 1970s (Gilbert & Ward 1985), and Ward (2012) conducted a restudy of 300 of the occupants. Ward found that more than 80% of the original families are still living on the lots 30 years later, and the densities of the lots have increased because they are now shared in Mexico with adult children and in Bogot´a with both kin and renters. The lack of residential mobility is explained by inheritance expectations and high lot prices, which make selling difﬁcult. Another intangible impact of receiving title is its effect on the former squatters’ ideologies. Due to exogenous circumstances, some squatters in a Buenos Aires settlement received title, while some of their neighbors did not. Using this natural experiment, Di Tella et al. (2007) found that those with titles developed market-friendly beliefs, whereas people without titles did not. Although the respondents are neighbors, have similar life experiences, and share information networks, those who received title are approximately 34% more likely to have materialist beliefs (such as that money is important for happiness) and approximately 30% more likely to have individualist beliefs (such as that people can succeed on their own). In contrast, those without land title are approximately 17% more likely to believe that people cannot be trusted. Even though it is not clear exactly why these beliefs developed, it is clear that transforming squatters into owners can affect their worldviews. In addition to the impact of titling on self-esteem,
civic involvement, residential mobility, and worldviews, squatting can improve democracy (Atuahene 2006). Since squatters are by deﬁnition breaking the law, it is easy to view them as miscreants who are not contributing to society, but Pe˜nalver & Katyal (2010) counterintuitively argue that squatters are providing a great public service by actually improving democracy. They argue that the law of ownership prioritizes stability and predictability and protects preexisting property arrangements, resulting in a built-in status quo bias, which can morph into a liability when it causes property law to become irrelevant and 182 Atuahene ineffective because it is resistant to changing circumstances. Although people can change the status quo through the democratic process, this is most likely when there is a politically empowered, organized group seeking change. When those who want change are unorganized, then property outlaws (people who intentionally disobey property laws) can buttress democracy and improve the law by highlighting illegitimate, outdated, or unclear laws for authorities. Although Pe˜nalver & Katyal (2010) provide principled normative arguments for how squatters and other property outlaws can foment change, they do not empirically conﬁrm their intuitions about the effects of squatters on authorities’ perceptions, and nor have other scholars. There have been a plethora of studies on titling, and nearly all agree on one point: The impact of titling is highly context speciﬁc. Generalized declarations that titling is good or bad are misguided, which is why NLR encourages caution and attention to context when translating empirical data for various audiences. After considering their speciﬁc circumstances, states that choose to convert squatters from trespassers to owners can use various mechanisms. Some squatters have occupied public lands, which many states have transferred to them at no cost. But other squatters have occupied private lands, and so states have either purchased the occupied land from owners in the open market, used their eminent domain powers and paid landowners just compensation to acquire the lands occupied, or relied upon the doctrine of adverse possession to acquire the land. Adverse possession is a legal doctrine that transfers valid title from owner to trespasser, if the trespasser fulﬁlls certain common law requirements, such as exclusively occupying the property without permission and in an open manner for the uninterrupted statutory period. Adverse possession is a type of involuntary property loss and thus is properly considered a taking. As encouraged by NLR, adverse possession is an area in which scholars doing empirical, normative, and doctrinal work have been in productive conversation with each other. For example, Stake (2000) used ﬁndings from experimental psychology to argue that the adverse possession doctrine correctly places the loss on parties not in occupation because they will suffer the least psychologically, and Radley-Gardner (2005) used archival evidence to trace the origins of the animus possidendi doctrine, which requires the adverse possessor to occupy the property with the intention of excluding the owner and others. The most generative conversation, however, was started by Helmholz (1983), who empirically explored the hostility requirement of adverse possession. Under the common law, although adverse possessors cannot have the permission of the owner, it does not matter whether the adverse possessor holds the land in bad faith (she knows that the property is not hers but possesses it anyway) or in good faith (she mistakenly occupies another’s land). That is, her subjective intent is irrelevant. Nevertheless, empirical analysis shows that the law on the books is markedly different than the law in practice. Helmholz (1983) conducted a survey of all reported adverse possession cases published since 1966 and used court records to show that judges actually do consider subjective intent when it can be proven or inferred from the evidence and systematically prefer good faith over bad faith possessors. This impressive study reinvigorated scholarly discussion about adverse possession and resurrected the topic from the cobweb-festooned intellectual basement where it had for decades kept residence. Legal scholars writing within the law-and-economics tradition have debated how an adverse possessor’s state of mind should effect the case outcome (Epstein 1986, Fennell 2006, Miceli & Sirmans 1995). Merrill (1984) proposed that courts use a liability rule for bad faith adverse possessors—forcing them to pay for the land they adversely possess—but suggested that good faith adverse possessors be protected by a property rule, giving them title without payment. Merrill stated that he would not have suggested altering the age-old doctrine of adverse possession but for the strong empirical evidence put forth by Helmholz about what judges are actually doing. That is, his liability rule proposal is an alternative to the habitual judicial disregard of common www.annualreviews.org • Takings as a Sociolegal Concept 183 law doctrine. So here we have normative and doctrinal scholars responding to empirical evidence to improve
the theory and practice of law, just as NLR intends. Also as intended by NLR, economists and lawyers have engaged in an interdisciplinary examination of the statutory period required to adversely possess land. There is a tradeoff: Shorter statutes guard current possessors against claims from past owners, and longer statutes reduce monitoring costs. Ellickson’s (1986) utilitarian analysis of the optimal statutory period for adverse possession delineated the costs involved for landowners, adverse possessors, and future transferees of land as well as litigation costs. Based on his intellectually sound, but empirically untested model, he concluded that utilitarian analysis supports the current trend of shortening the statutory period because various technologies have reduced landowner monitoring costs and transferee inspections costs. The very same year that Ellickson (1986) published his article, Netter et al. (1986) were reaching beyond normative assessments of what statutory period states should adopt to empirically explore the factors that determined the actual statutory period chosen at the time of statehood. Based on 19 states with available data, Netter et al. (1986) found that states with higher property values had lower statute lengths, indicating that the certainty of title that comes with shorter statutory periods becomes more important as the economic stakes increase. They also found that, as the proxy for monitoring costs (population density) increased, the statute length increased to counter these elevated monitoring costs. In a similar project, Baker et al. (2001) attempted to explain the difference in statutory periods for adverse possession, using 1916 as the measuring year to compare data from 46 states. They found that states with higher farm output and lower urban growth rates had longer statutes of limitations, whereas states with more efﬁcient legal systems had shorter statutes. Most importantly, a review of the empirical work on trespass-related takings provides insight into property’s compound values. Economists focus on property’s economic value, ﬁnding that “the groups that codiﬁed the [adverse possession] laws responded to economic forces in setting the statute of limitations” (Netter et al. 1986, p. 225) and that titling sometimes results in increased productivity, investment, and property values. But, the literature on trespass also reveals property’s noneconomic values. Politically, squatters may improve democracy. Also, titling provides protection from political backlash because, although the state can remove squatters at will, owners have more protection. Property’s emotional, social, and political value is demonstrated by the changed worldviews, higher self-esteem, and expanded civic involvement that result when people become owners of the lands they once illegally occupied. Additionally, achieving tenure security without title requires thick social bonds and substantial social coordination, as demonstrated by the Argentine case discussed. Thus, by placing the empirical work on trespass in dialogue, property’s manifold values emerge. Takings by Families Families are often celebrated because they are a source of care, support, and stability, but it is less often noted that family conﬂicts are a major mechanism through which people are displaced from their homes and other property. Widows are a group particularly vulnerable to displacement, especially in cultures where women leave their homes or villages to join their husbands’ families. Quantitative methods can best establish the scope of dispossession, and a nationally representative survey of 5,342 rural households in Zambia painted a nuanced and detailed picture of the problem. It found that one-third of widows controlled less than half of the land they had prior to their husbands’ deaths, but one-fourth controlled at least as much or even more land as when their husbands were alive (Chapoto et al. 2011). Widows from relatively wealthy households, as well as younger widows, lost the most land. In contrast, qualitative methods help us to understand why and 184 Atuahene how families determine who does and does not belong on family lands. In South Asia, HIV-positive widows are often rendered outcasts who are unwanted and no longer belong. Swaminathan et al. (2009) described how in-laws evict the widows from their marital homes outright or indirectly by publicizing their HIV status to the extended family and community, prompting the disgraced widow to leave in shame. Another mechanism by which women are deprived of property is through formal and informal inheritance laws. In the face of gender inequality and customary laws that disfavor them, the Kabui Naga women of northeastern India often do not take the position of passive victim, but rather they resist by doing everything in their power to either creatively use the law for their own beneﬁt or mitigate its negative impacts (Kamei 2011). Kabui Naga women, as well as women from all over the world, have developed coping mechanisms to blunt the effects of inheritance laws that undermine their right to control property. The question is, how does a nation once and for all reform inheritance laws that discriminate against women and thereby make a decisive move toward gender equality
? Rosenblum’s (2015) empirical analysis of inheritance patterns in India is telling. Most states in India give only sons the right to inherit their parents’ ancestral lands, but in 2005, ﬁve states gave daughters the same rights. Using a difference-of-difference analysis, Rosenblum found that although the reforms had no effect on fertility rates, they increased female child mortality as parents reduced investment in their daughters’ health to maximize the bequests given to their sons. This detrimental outcome was clearly not what policy makers intended. Also, taken out of context, Rosenblum’s analysis could hinder inheritance law reform, so this is a prime example of why NLR insists upon careful translation of empirical work for policy makers. In addition to discriminatory inheritance laws, the geographic dispersion of families can also be a catalyst for land deprivation. An ethnography done in Malawi demonstrates how acrimonious family quarrels sometimes lead one segment of the matrilineal family to move to a different area, relinquishing family lands in the process. Those who migrate become strangers who no longer belong on their ancestral land (Peters 2002). Likewise, familial dispersion has been one driving force behind involuntary black land loss in America’s rural South (Mitchell 2005). The mass exodus of African Americans from the South during the Great Migration, along with the low incidence of wills in the black community, has resulted in family land that is owned by several geographically dispersed family members as tenants in common. If one family member wants to cash out and the family cannot afford a buyout, then the entire parcel of land is sold in a judicial sale (often for below its market value) and the proceeds divided among the joint owners. This pattern of selling family land at ﬁre sale prices is one reason why African Americans currently own only 10% of the rural land they once owned in 1910 (Mitchell 2005). Involuntary black land loss in the American south has also been caused by racial violence, discriminatory practices of the US Department of Agriculture, discriminatory taxing that results in tax foreclosure, and the replacement of small farm owners with larger conglomerates (Kahrl 2012, 2017; Mitchell 2001, 2005). Although family dispersal and disagreement can be a powerful mechanism of displacement, it is important to note that family solidarity can prevent dispossession. In the early stages of China’s market reform, kin solidarity and trust played an important role in protecting private entrepreneurs’ property rights (Peng 2004), just as strong kinship networks in rural China currently protect villagers from governmental takings (Zhang & Zhao 2014). In fact, in the Chinese village of Wukan, communal resistance to land grabs organized around extended kinship networks has had signiﬁcant success (He & Xue 2014). But when describing family-related outcomes, complicated is often a more appropriate adjective than successful. In the Santal community located in eastern India, the state has failed to service the community’s needs, so it has come to more heavily rely on its customary practices and institutions, which has curtailed women’s right to inherit land (Rao 2005). But kin elders sometimes assist women www.annualreviews.org • Takings as a Sociolegal Concept 185 in bringing their land and other grievances to formal courts. In other contexts, formal courts can worsen rather than facilitate family-based justice. In US family courts, the system is set up to penalize “dead beat” dads who do not want to pay child support, but instead it often ends up penalizing and imprisoning indigent fathers who have no means to pay (Brito et al. 2015). Depending on the context, well-intentioned courts can be a safe haven or a liability, revealing the complexities of family and culture. It is no coincidence that the empirical literature on family-related takings is written principally by anthropologists and sociologists rather than economists, and thus the cultural and social value of property is accentuated. The literature indicates that family land serves several cultural and social functions: It connects future generations with past ones, serves as the basis of important cultural traditions, and is the convening place where family and community relationships are solidiﬁed. As seen in Malawi, once people move away, they lose access to family lands and become strangers who are no longer part of the community’s social fabric. Or, as in the American South, once people move away, a family’s ability to maintain control of its land is weakened and a family of geographically dispersed strangers often lacks the unity necessary to save the family land. The literature also shows us that family is complicated. Families can take land, and widows are particularly vulnerable to displacement. But families also defend land against expropriation by the state or other outsiders, as witnessed in China. In a similar paradox, cultural norms disadvantage women but also provide avenues for redress, as demonstrated by the Santal community in India. The
NLR assertion that context matters greatly holds true in the area of family-related takings, so totalizing assumptions are unwise. Takings by Markets The market is another mechanism by which individuals and communities are involuntarily ousted from their properties. In market-driven displacement, voluntariness is often at issue because— although people may have consented to a market transaction—they often did not consent to the discriminatory policies, deceit, theft, and illegal pressure tactics in which the transaction is embedded. Also, their poverty may have undermined their ability to give or withhold consent for a particular transaction. A prime example is the 2006 foreclosure crisis ignited by the explosion of subprime loans. Mortgages marketed as subprime (cumulative loan-to-value ratio of 90% or more) accounted for 10% of all originations in 2000 but over 50% in 2006 (Gerardi et al. 2008). In a study of Baltimore, sociologists ﬁnd that African Americans were disproportionately targeted for subprime loans, which were more costly and risky. In addition, they ﬁnd that due to subprime loans, approximately $2.1 billion of wealth was lost to foreclosure; about $2.0 billion of this wealth loss came from high-income black households, and over 90% of all black wealth lost derived from majority black neighborhoods (Rugh et al. 2015). Economists have also examined various factors causing the steep rise in foreclosure rates during the Great Recession. Using counterfactual experiments, Corbae & Quintin (2015) suggested that approximately 60% of the rise in foreclosure rates was caused by the increase in high-leverage loans. Another study explored how different state foreclosure laws (such as judicial review requirements, deﬁciency judgments, and state assistance programs for distressed borrowers) impacted default rates and found that the cost of default is a key factor in whether borrowers exercise their default option (Demiroglu et al. 2014). Another market-related source of involuntary property loss is the global land rush or global land grabs (Pearce 2012). As food prices rose in 2007 and 2008, so did the global demand for agricultural land in developing nations. To secure food production, foreign countries and corporations have been buying land directly from governments, who often procure the land by usurping the communal land rights of its citizens (Arezki et al. 2015). On the continent of Africa, for example, an 186 Atuahene estimated 90% of foreign land purchases are sold by the government rather than by private parties, so current occupants are not directly receiving sales funds, if they receive any monies at all (Arezki et al. 2015, p. 218). Using case studies of North Sudan and Ghana, ElHadary & Obeng-Odoom (2012, p. 59) found that “the state grabs land and sells it to amass wealth and power.” Even when the state attempts to protect vulnerable populations from takings rather than facilitating takings, market forces can overwhelm good-intentioned state initiatives. Through ethnography, Sullivan (2014) investigated how mobile home park redevelopment can lead to the mass eviction of residents who own their mobile homes, but do not own the ground on which the mobile homes sit. Although Florida is one of the few states with laws protecting mobile home residents from eviction—requiring a six-month notice period, relocation assistance, and city council approval for land use changes—private-sector actors charged with implementing the laws exert both overt and covert pressure to make residents move according to their dictates. In a similar vein, using case studies of Kigali and Phnom Pehn, Durand-Lasserve (2006) found that state provision of land titles, which is intended to promote tenure security, can instead lead to market-driven displacement. More speciﬁcally, in Kigali, Rwanda, residents of informal settlements received land title following the promulgation of the 2005 land law, but many renters were eventually priced out of the settlements where they had for decades lived, just as many poor people in other gentrifying neighborhoods have been forced out (Herzfeld 2010, L´opez-Morales 2010). In addition, Rao (2005) examined the case of the adivasis, an ethnic group residing in the area of India known as the Santhal Parganas. In response to the legacy of adivasi exploitation and land loss, Section 20 of the 1949 Tenancy Act makes all land in the region nontransferable. Using individual and group interviews, Rao discovered that adivasi land loss continues, nevertheless, owing in part to exploitative private lease arrangements. By reaching beyond the law on the books to examine the law in action, an approach greatly encouraged by NLR, Rao (2005), Durand-Lasserve (2006), and Sullivan (2014) bring to light
land loss rendered invisible by well-intentioned state initiatives. Another area of market takings is when, without the consent of existing rights holders, collective property is privatized and made available for exchange on the open market—a process known as decollectivization. Sociologists Davis & Lu (2003) examined the privatization of occupied urban real estate in Shanghai to understand the logics of entitlement ordinary people use to determine who should own the newly privatized property. Using focus group debates, they found there were four prevailing logics—family estate, family justice, state regulation, and the market—and the rules in operation at the time the dwelling became a family home largely determined which of the four logics were applicable to that situation. In certain contexts, the logics of entitlement are subverted by corruption. By examining public opinion about assets obtained through corruption-tainted privatization programs, political scientist Timothy Frye (2006) explored how beneﬁciaries of illgotten market gains can sanitize them. He conducted an experiment embedded within a survey of 660 business managers in Russia and found that assets obtained through corruption-tainted privatization programs were viewed as illegitimate, but the perceived illegitimacy decreased when the asset holder did two things: used the assets efﬁciently and provided public goods (Frye 2006). Although privatization sometimes involves corruption, it also entails so much more. Based on extensive ﬁeldwork, Verdery (2003), an anthropologist, explained how occupied and unoccupied lands were privatized and valued in post-Communist Romania, described the various groups vying for the land, and chronicled why decollectivization rendered much of the land unproductive. One of her most interesting ﬁndings is that decollectivization disrupted the social order: “It completely reconﬁgured the connections among persons, things, and the values attributed to them. It transformed notions of what persons are and provided new resources for constituting them” (Verdery 2003, p. 158). As demonstrated, much is revealed when studies about privatization done by sociologists, anthropologists, and political scientists are discussed in tandem. www.annualreviews.org • Takings as a Sociolegal Concept 187 Even a brief review of the literature concerning market-related takings exposes property’s multiple values. Decollectivization can upend the social order, highlighting the social value of property. In terms of property’s political value, private property protects individual autonomy from state encroachment, but in the process of privatization, there are several opportunities for the state to undermine an individual’s ability to obtain property and its attendant protections. To decollectivize, the state must develop a rationale for selecting who will own the property, which presents opportunities for corruption, as in Russia, and other forms of inefﬁcient allocation, as in Romania. In terms of maintaining property’s economic value, homeowners who cannot pay their mortgage will default, renters who cannot pay the increasing rent demanded in gentrifying neighborhoods have to move to a more affordable area, mobile homeowners have to move when their mobile home park is remodeled, communities must relocate when their land is sold to foreign nations and corporations, and economically vulnerable adivasi people can leave their land and lease it in the free market to obtain much-needed cash. But, in all these instances, moving away from the geographic space called home entails relinquishing sentimental attachments developed to the house; reconﬁguring identities related to that place; and disrupting the social bonds developed with the neighbors, schools, and religious institutions in that community. That is, a property’s value consists of more than just the tangible house, it also includes the web of intangible emotional, social, and cultural signiﬁcance in which the house is entangled. Takings by Natural or Man-Made Disasters Natural disasters are often responsible for displacing people from their communities, homes, and other property. Although natural disasters are acts of God, state action or inaction can amplify the resulting damage and lead to further displacement. Burby (2006) assessed state and federal politics and found that—based on 25 years of National Flood Insurance Program claims and payments in coastal counties—lower per capita ﬂooding losses resulted when states adopted comprehensive planning requirements. Nevertheless, less than 50% of states require local governments to prepare plans, and less than 10% require planning for natural hazards. Although it is important to discuss the politics that amplify ﬂood-induced property damage, it is also crucial to understand the psychological consequences involved when ﬂoods displace people from their homes, jobs, communities, schools, and support networks. Using interviews of adolescents relocated to Colorado in the wake of Hurricane Katrina, Reich & Wadsworth (2008) found that relocation can have beneﬁts, but it can also limit a family’s ability to function and can cause displaced teens to experience signiﬁcant emotional turmoil and stress. Only through an
interdisciplinary assessment can we understand both the politics and psychology of ﬂood-related displacement. Like ﬂoods, in many countries, resource scarcity has also led to displacement. Scholars have found that overexploitation threatens customary access to community property resources, alienating many vulnerable people from the lands they need to survive (Beck & Ghosh 2000, Gowda & Savadatti 2004). In Ivory Coast, land with no title is considered part of the national domain and is distributed by the state instead of the market. More importantly, this property rights system was a principal cause of the Ivorian civil war because the state gave foreigners cheap access to virgin forests, which for a time increased production of the country’s primary export (cocoa), but eventually led to overexploitation, scarcity, and then conﬂict with natives over rapidly diminishing land resources (Woods 2003). Politicians capitalized upon the conﬂict by taking land from longestablished foreigners and promising to give it to their supporters (Boone 2009). Just as in Ivory Coast, resource scarcity is one cause of interethnic conﬂict between the Ittu and Issa people in eastern Ethiopia. Beyene (2009) reports that customary institutions have historically been able to manage conﬂict over the grazing commons, but resource scarcity, livestock raids, land use changes, 188 Atuahene power asymmetries, and violation of customary norms have undermined their ability to mediate, leading to an increase in both the frequency and intensity of conﬂict. The disciplines of political science, geography, and sociology can help us to better understand the interlocking factors causing land-based conﬂict. Using a variety of quantitative data sets, Theisen (2008, p. 801), a political scientist, attempted to explain civil violence, ﬁnding that “scarcity of natural resources has limited explanatory power in terms of civil violence, whereas poverty and dysfunctional institutions are robustly related to conﬂict.” Based on a survey of 521 households in Northern Mozambique, Unruh (2001), a geographer, evaluated the ability of land tenure dispute-resolution mechanisms to maintain postwar peace. He found that tenure-related tensions are most likely to be acute where there is competition between large and small landholders, as well as an inﬂux of migrants or returnees. He also found that the failure to account for the different evidentiary constructs for determining ownership ascribed to by competing groups can result in outcomes widely viewed as illegitimate, which can ultimately undermine the peace process. Using a sample of rural municipalities in Mexico, Villarreal (2004), a sociologist, used quantitative methods to explore the structural origins of violence and found that unequal land distribution and insecure property rights are among the most prevalent factors explaining the variation in rural homicide rates. Given this, one may expect that the epicenter of urban violence would be where property rights are most insecure and inequality most severe—squatter settlements. But context matters. The relationship between land and conﬂict manifests differently in rural versus urban areas, and it also depends on the country. Based on 80 interviews with squatters in a Delhi slum, Datta (2012) explained how people from different religions, castes, and ethnicities have maintained strong ties, especially in moments when the city around them is erupting in violence. To create a home in an exclusionary city, she found that squatters form a genuine openness to others, which is normalized and durable in moments of communal violence. Other scholars have also found that shared norms can keep disorder at bay in the absence of state-imposed legal order. An ethnographic inquiry found that, after the conﬂict in East Timor, the long-standing principle of ancestral ﬁrst possession served as the stable basis for the allocation and trade of property rights in Babulo and averted the potentially destructive race for control over land (Fitzpatrick & Barnes 2010). As demonstrated, scholars from diverse disciplines have explored the relationship between land and conﬂict using qualitative and quantitative methods, just as NLR intends. The drawing and redrawing of boundaries is another mechanism by which people are estranged from their homes and other property during conﬂicts. Using regression analysis, Simmons (2005) tested the effects of a disputed border on bilateral trade and found that settled borders promote certainty, secure property rights, and encourage cross-border trade and investment, whereas territorial disputes cause uncertainty and can lead to violence and war. By focusing on how disputed lands changed hands (peaceful, overwhelming victory, or violent but no overwhelming victory), Tir (2003) further explored the phenomenon of disputed borders. He found that post-transfer conﬂict is most likely when the disputed land has economic and strategic value and the victory is violent, but short of overwhelming. In addition, there has been signiﬁcant empirical scholarship concerning the boundary dispute in the West Bank. The Ottoman Land Code is in effect in the
West Bank, and article 78 states that those who cultivate land for 10 years without dispute can acquire it through adverse possession. Using ethnographic methods, Braverman (2008) found that tree planting has thus become an extension of the war over land in the West Bank, with Palestinians planting olive trees and Israelis planting ﬁr trees in the struggle to establish boundaries that usurp or reclaim land. Consequently, the uprooting of olive trees in this proxy war results in the destruction of three important things: physical property, legal claim to land, and cultural presence. The border war in the West Bank www.annualreviews.org • Takings as a Sociolegal Concept 189 involves the destruction of trees and also buildings. In East Jerusalem, 85% of Palestinian homes do not have the necessary building permits and are thus illegal; consequently, the state of Israel demolished 400 of these illegal homes between 1987 and 2004 (Braverman 2007). While the act of demolition is highly visible, there is a secondary mechanism of dispossession hidden in the background: the seemingly innocuous planning laws and mundane bureaucratic procedures used to establish illegality. Another prominent and controversial boundary in the West Bank is the security fence that demarcates the border between Israel and Palestine. To build the fence, the Israeli government expropriated land from Arabs (Falah 2004), and although Israel has offered compensation, many Arabs have not accepted it. For this and many other reasons, the security fence is unpopular among Arabs living on the side controlled by the Palestinian Authority. To uncover attitudes of people living on the Israeli side of the fence, Gelbman & Keinan (2007) conducted a survey of 400 people and follow-up interviews with 25 people. They found that the majority of Jews polled were in favor of the fence because they thought it provided security and stability, but the vast majority of Arabs were opposed to the fence because it unduly interfered with their familial and economic ties on the Palestinian side. A coherent discussion about the empirical literature concerning land takings that result from natural or man-made disasters underscores property’s multiple values. Flood-related displacement has economic ramiﬁcations as well as social, cultural, and emotional ones because people’s identities are reﬁgured as they are separated from their bygone communities and the social and emotional ties developed therein. The literature states that land-based conﬂict is caused by several context-speciﬁc factors, including poverty, dysfunctional institutions, competition between large and small landholders, inﬂux of migrants or returnees, failure to account for customary norms, unequal land distribution, and insecure property rights. More importantly, the multiple causes of land-based conﬂict reveal the multiple functions that property serves. Property’s social and cultural value is most apparent in East Timor, India, and Ethiopia, where customary and community norms play an essential role in preventing land-related violence. In Ivory Coast, immigrants were initially given land to promote the nation’s economy, but when land became scarce, property’s social, cultural, and political value was accentuated when the government reneged by taking back the land, worsening social and cultural divisions and robbing the immigrants of their autonomy. The literature also tells us that while border conﬂicts depress economic trade, they also divide cultural groups, ignite social strife, and challenge political sovereignty. Thus, a discussion of property takings related to natural and man-made disasters provides a holistic view of property’s many values. FUTURE RESEARCH Although the term property value is most commonly associated with property’s economic value, a review of the empirical literature on takings provides a comprehensive look into property’s economic value as well as its political, social, emotional, and cultural value. Lawyers, psychologists, political scientists, geographers, economists, and sociologists have all examined takings using a variety of methods, but only when these scholars are placed in conversation with each other, as in this article, do we have a more robust understanding of property’s value. There is, however, much room for further research. The constitutional takings literature would beneﬁt from more empirical work in two areas. The ﬁrst would be an evaluation of popular perceptions concerning the relationship between the Fifth Amendment takings clause and the First Amendment right to free speech, which arises when private property owners are required to allow political activity (such as petitions or rallies) on their 190 Atuahene properties. Second, the Supreme Court uses a complicated three-part balancing test to determine whether government laws or policies have effected a regulatory taking, but there is little research on the standard that average citizens believe is required for a fair result. The dignity takings literature is a new contribution to sociolegal studies, and it is important to fully understand the possibilities and limits of this conceptual framework. Although many scholars have already tested its applicability to various case studies across a range of geographic locations and time periods, further investigation is necessary, especially in the areas of corporate law, deportation
, environmental justice, rape and other bodily violations, end of life issues, intangible property, and access to important physical domains like religious spaces. The area of trespass-related takings would proﬁt from exploration of Pe˜nalver & Katyal’s (2010) intriguing, but empirically untested, assumption that property outlaws can foment change. More speciﬁcally, future research should assess the beliefs of lawmakers and authorities to determine whether squatters do, in fact, highlight illegitimate, outdated, or unclear laws for them. Also, the topic of trespass presents an opportunity to explore poor and vulnerable populations as the perpetrators of takings instead of its victims. Most signiﬁcantly, it is important to understand the role that dignity plays in a squatter’s decision to illegally occupy space, which is a topic that has yet to be comprehensively explored. The literature on takings by families, markets, and natural or man-made disasters would proﬁt from a power analysis of dispossession, which describes the complex ways in which vulnerable populations can be the perpetrators or the victims of a taking, depending on the circumstances. In addition, family is both the source of dispossession and protection against it, so more work should be done to explicate this duality. Much of the literature on market-related takings, especially the work done on foreclosure, is quantitative, so more interdisciplinary, multi-method work in the NLR tradition should investigate the political, social, emotional, and cultural consequences of foreclosure. Additionally, empirical work on the beneﬁciaries of ill-gotten market gains is scant, and so this is also fertile ground for future research. In the area of takings related to natural and man-made disasters, anthropologists have done signiﬁcant work on resource scarcity, but more empirical investigation of everyday boundary disputes and land-related conﬂict would be beneﬁcial. Last, but not least, in future, theoretical and empirical scholars need to work together to grow the burgeoning ﬁeld of takings. Although, by design, this review focuses almost exclusively on empirical work, the value and importance of theoretical and normative work on takings are acknowledged and embraced. Theoretical work is often the foundation of empirical scholarship, just as empirical ﬁndings can be the starting point from which theorists begin their inquiries (Dagan et al. 2015). NLR encourages the marriage of legal theory and empirical research (Erlanger et al. 2005, p. 337) because the offspring of this formidable union is a more robust understanding of the law. Legal problems are often like foggy mirrors, and interdisciplinary conversations help us to wipe off the condensation so that we can see what has been standing before us the entire time. This is why it is high time that scholars from different disciplines who write about involuntary property loss begin to converse with each other, which is the ﬁrst step on the journey toward generating more research on takings and establishing it as a respected ﬁeld of sociolegal inquiry. The hope is that one day takings will earn a distinguished place in the canon of sociolegal studies beside frameworks like legal consciousness and procedural justice. 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. www.annualreviews.org • Takings as a Sociolegal Concept 191 LITERATURE CITED Acevedo JF. 2017. Dignity takings in the criminal law of seventeenth-century England and the Massachusetts Bay Colony. Chic.-Kent Law Rev. 92(3):In press Albert CD. 2017. No place to call home: the Iraqi Kurds under Arabization, Saddam Hussein, and ISIS. Chic.-Kent Law Rev. 92(3):In press Alexander A, Miller R. 2017. Counting the costs of mass supervision: dignity taking and the post prison experience. Chic.-Kent Law Rev. 92(3):In press Alston LJ, Libecap GD, Schneider R. 1996. The determinants and impact of property rights: land titles on the Brazilian frontier. J. Law Econ. Organ. 12(1):25–61 Arezki R, Deininger K, Selod H. 2015. What drives the global “land rush”? World Bank Econ. Rev. 29(2):207–33 Atuahene B. 2006. Land titling: a mode of privatization with the potential to deepen democracy. St. Louis Univ. Law J. 50:761–82 Atuahene B. 2009. Property rights & the demands of transformation. Mich. J. Int. Law 31:765–819 Atuahene B. 2011. Paying for the past: redressing the legacy of land dispossession in South Africa
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happened. Although the transformation in medicine has (rightly) been criticized as failing to extend far enough (Finkelstein & Taubman 2015, Parker 2005), there is no comparing the amount or quality of the objective, scientiﬁc evidence available to practitioners in the two professions. And despite a compelling literature on failures within the medical profession to incorporate RCT ﬁndings into day-to-day practice (e.g., Boissel 1989), there is no comparing the evidentiary basis for the standard of care as between medical and legal professionals. Practitioners of medicine chose to transform their profession into a science. Practitioners of law did not. We think this situation is bad, on the law side. We think that the United States would be a better place if the legal profession were less hostile to objective, rigorous, scientiﬁc evidence about causation and the effectiveness of interventions. We think all this particularly true in the areas of (a) interventions for individuals unable to hire attorneys to address their legal problems, civil or criminal, transactional or litigation, and (b) the construction and administration of adjudicatory systems. These two arenas, unlike those in which legal professionals and judges compete for business, lack the discipline that markets can sometimes impose on inefﬁcient or wasteful practices. We acknowledge the critical role that theoretical research (Albiston & Sandefur 2013), doctrinal analysis, and observational studies play in the construction of a foundation for addressing socioeconomic and legal problems, and we believe that there are many methodologies that must be deployed if a ﬁeld is to generate that foundation. Nevertheless, under the present state of our understanding of methodology, no ﬁeld can claim to be evidence based without a central role for the RCT as a means of accumulating knowledge about what works and what does not. We defend none of these claims in this article (see Green & Thorley 2014 for the beginnings of such a defense). Nor do we follow here the path of a traditional review paper in reviewing the literature of a domain, outlining the domain’s contours and debates, and speculating about the domain’s future. We make these choices because, at present, none of these things exist with regard to RCTs in the US legal profession. There are no recognized papers in this domain, no canonical studies, no contours of debate or contesting schools of thought, no internally deﬁned best practices, and few publications proposing agendas for the future. At present, there is no domain to review. Thus, in this article, we attempt to begin a conversation on the following subject: Why is there no domain to review? What can be done to overcome the US legal profession’s current disdain for the RCT? Relatedly, why did medicine transform itself into a science, while law did not? 1Admittedly, the study was not formally randomized in the sense of assigning study units to treatments according to coin ﬂips, dice rolls, a random number table, a computer’s random number generator, or some other recognized method of producing an unconfounded treatment assignment process. Instead, judges were assigned to defendant sentencing proceedings according to a rotating wheel, i.e., a list of judge names that repeated (Gaudet et al. 1933, p. 813). As noted below, absent some reason for doubt, we credit a rotating wheel as producing an unconfounded treatment assignment. 296 Greiner· Matthews This article is our ﬁrst step toward beginning to answer these questions. Here, we catalog and brieﬂy analyze those RCTs that do exist in the US legal profession. As we explain further, our analysis of these studies focuses not on their scientiﬁc content but rather on what they can teach us about the questions outlined above. The intensity of the US legal profession’s resistance to the RCT is such that, viewed individually, each law RCT appears to be a unicorn, a magical creation with no origin story that appears brieﬂy in a larger setting and then fades away. We expect that analysis of all RCTs in the US legal profession will reveal generalizable lessons about this pattern of spontaneous emergence and later obscurity. We organize this paper as follows: We ﬁrst deﬁne what we mean by RCT in the US legal profession. We then provide the results of our three-year search for such studies. Second, we defend our claim that the US legal profession is resistant to the RCT. On this point, our primary evidence is the paucity of such studies in law as compared with medicine or even with less quintessentially professional endeavors. To illustrate further, we provide three anecdotes of hostility researchers encountered when they were able to mount randomized ﬁeld operations in the US legal profession. Finally, we formulate questions for future investigation into the source of the US legal profession’s resistance to the RCT, and we hypothesize possible answers to those questions, focusing in particular
on answers that might suggest ways in which the present situation could be changed. OUR INCLUSION CRITERIA AND A REVIEW Here we state our inclusion criteria for the set of RCTs in the legal profession and discuss the results of our three-year search for such studies. To clarify, we do not suggest that studies outside our set of interest are less scientiﬁcally informative or less worthy of admiration. We focus on the set of studies deﬁned below because we are interested in the questions articulated above, and because we suspect that the key to answering those questions lies in the US legal profession’s prevailing epistemological norms and professional identity. We have deﬁned our set of studies so as to encompass those research efforts that most directly challenge how the legal profession thinks of itself. RCTs in the US Legal Profession We have ﬁve inclusion criteria for our review. First, we are interested in studies that took place in the United States. We impose this criterion because, in contrast to many other nations, the United States has chosen to imbue members of its legal profession with unusual attributes, including selfregulation; practitioner autonomy; state-assisted exclusion of competitors; immunity from certain legal doctrines (such as presumptive dormant Commerce Clause invalidation of restrictions on cross-border competition); and, at least in the case of elite members of the profession, wealth, status, and power (Gorman & Sandefur 2011). As compared with other ﬁelds of endeavor, lawyers dominate the US governmental structure. Much may be changing, in the United States and elsewhere (Susskind 2010), but until that change is further along, the US legal profession represents an unusually difﬁcult target for transformation. If we can render the legal profession less hostile to rigorous evidence on causation in the United States, we may have luck doing so elsewhere. Second, we are interested in ﬁeld studies of interventions, in research efforts that involve interventions applied to actual cases, or clients, or attorneys, or other real-world objects as randomization units. Third, we are interested in studies involving a randomized assignment mechanism or a scheme that, given the setting in which it operates, can be expected to produce unconfoundedness. That means that each object of the study (the unit) must be assigned to a treatment condition (e.g., treated or control) in a manner unrelated to its outcome values (see Imbens & Rubin 2015 for deﬁnitions and explanations of unfamiliar terms and concepts). Assignment mechanisms involving www.annualreviews.org • Randomized Control Trials 297 coin ﬂips, dice, random number tables, and computers certainly qualify. In some legal settings, treatment assignment is accomplished by means of some rotational device, such as odd/even case numbers (Goldman 1978). As suggested above, absent some reason to fear manipulation of or departure from these mechanisms or a periodic trend in the data (e.g., Chilton & Levy 2015, Thorley 2015), we credit them for producing unconfoundedness. Note also that these inclusion criteria exclude studies that randomly select units for observation, such as sample surveys (and the random selection of class action cases for bellwether trials). We impose the ﬁeld and randomized intervention criteria because, scientiﬁcally, ﬁeld experiments enjoy heightened internal validity and persuasive power (Green & Thorley 2014). Sociologically, ﬁeld experiments require that members of the US legal profession engage with scientiﬁc endeavor in a way that lab (e.g., Elek et al. 2012) or online (e.g., Robinson & Yokum 2012) studies do not. Fourth, we are interested in studies that are in the legal profession in the sense of involving the replacement by randomization of a decision-making process otherwise undertaken by lawyers and judges. An example may clarify. In our search, we found studies in which judges followed a randomized assignment mechanism in sentencing (or not sentencing) criminal defendants to some program such as counseling or intensive monitoring (e.g., Labriola et al. 2008). We found other studies in which a judge sentenced defendants to conform to the dictates of some ofﬁce whose members are not in the legal profession, e.g., to probation, and that ofﬁce followed a randomized assignment mechanism in deciding which defendants would be required to undergo some program, such as counseling or intensive monitoring (e.g., Petersilia & Turner 1991). Assuming all other conditions are met, the ﬁrst studies are in our set of interest, and the second are not. Judges are frequently lawyers and are considered members of the legal profession. Probation ofﬁcers frequently are not lawyers, and their work is not ordinarily considered practicing law. Thus, our focus is not on whether some decision is legal in some sense. Our review of the literature suggests that nonmembers of the legal profession in some jurisdictions make decisions that, in other jurisdictions, are made by
members of the legal profession. Rather, our focus is on who, but for the randomization, would have made the decision. We impose the requirement of “in the legal profession” because our own experiences and our reading of the literature suggest that it is the lawyers and judges, as opposed to the nonlawyers operating within the ﬁeld of US law, who are resistant to the RCT in particular. The US legal profession is structured on the premise that only a lawyer knows how to address legal problems, and that the only person a lawyer should listen to for ideas on how to address legal problems is another lawyer [e.g., Mass. Gen. Law ch. 221 §46A (the Massachusetts unauthorized practice of law statute) and ABA Model Rule 5.4 (prohibiting US lawyers from using certain business structures so as to preserve the “professional independence of the lawyer”)]. The profession reiﬁes professional judgment and the personal experiences of its practitioners. Thus, a primary challenge to mainstreaming the RCT in the law is persuading legal professionals, meaning lawyers and judges, to replace their judgments with a randomized assignment mechanism for the duration of a study. Another is persuading legal professionals to view RCT results as useful evidence when, e.g., making judgments on how to administer adjudicatory systems or structure the delivery of services. So we focus on the decisions of legal professionals, an approach distinct from that of Green & Thorley (2014), which for the convenience of a literature search seeks ﬁeld studies using randomization that appear in prominent publications, and from that of Abramowicz et al. (2011), which focuses on legal rules. Fifth, we are interested in studies in which the reason for randomizing was to generate knowledge. There are a variety of settings in which legal actors use randomization (or a rotational system, e.g., Anderson & Heaton 2012) for reasons other than to learn something, such as recruiting good 298 Greiner· Matthews young attorneys (Abrams & Yoon 2007), allocating a scarce resource (Cohen 2013), maintaining the appearance of neutrality, or conforming to the politics of the judicial selection process (Samaha 2009). Such studies can produce evidence of the causal effect of the thing randomized (e.g., the judge, the attorney, the type of attorney) and, depending on one’s tolerance for modeling and other assumptions, may produce evidence of the causal effect of variables that covary with the thing randomized. None of these studies fall within our parameters. Instead, we are interested in studies in which legal professionals temporarily gave up their decision-making power because they acknowledged at least some doubt as to the effectiveness of some intervention. The reasons for our “acquisition of knowledge” and “in the legal profession” criteria are similar. To reiterate, we do not assert that a study that takes advantage of randomization implemented for a purpose other than knowledge acquisition is in some way suspect or less worthy than one in which a scholar has persuaded members of the legal profession to engage in a research effort. Our point is that there will never be enough of the former kind of study to provide enough opportunities to gain the knowledge needed to transform law into an evidence-based ﬁeld. We close this subsection by clarifying items that are not a part of inclusion criteria. We do not require that the ﬁeld operation be properly designed or conducted or that the data be properly analyzed. We found numerous statistical errors in the studies in our set, some of them fundamental. But our focus is less on the knowledge those operations produce than on the need to persuade, and process of persuading, members of the legal profession to engage in RCTs. We also do not require blinding. Although we agree that ordinarily, the more layers of blinding, the better, we have found it difﬁcult to blind legal interventions. Our Search In this subsection, we describe our three-year effort to ﬁnd RCTs in the US legal profession that meet our inclusion criteria. Our search unfolded in two phases, the ﬁrst designed to be an orderly sweep of the widest array of publications available to us, and the second a more ad hoc search based on references provided by existing articles, by colleagues, or by other one-off referrals. The initial sweep surveyed three literature aggregators and one preexisting compilation of studies known to one author in the ﬁeld of criminology. The aggregators were EBSCO, a major purveyor of social science research; JSTOR, an archive of leading academic journals in a wide range of disciplines; and ﬁnally the Harvard University Library’s Google Scholar, which searches every full-text database accessible by the University. Within these aggregators, we searched for variants of the word “randomized” by truncating the term to “random” and adding a proximity search to the terms law, legal, regulation, and ordinance. Where the results numbered in the hundreds, each article was scanned quickly and manually for conformation
with our criteria. Where the results numbered in the thousands, the ﬁrst 200 were scanned. The criminology compilation was generously shared by the Urban Institute’s Justice Policy Center, one author’s former employer. That compilation—the subject of hundreds if not thousands of hours of dedicated searching for ﬁeld studies in criminology—was then reviewed speciﬁcally for RCTs, which were then narrowed by our inclusion criteria. The initial sweep yielded some, but ultimately less than half, of the studies included in this review. We found most of the studies in our set of interest through haphazard means: word of mouth, or citations in other RCTs, or references in literature reviews unrelated to the current effort. We take this fact as further evidence of our assertion in the beginning of this article that, at present, there is no developed domain of RCTs in the US legal profession. In addition, the way in which we found most of our references, and the scattered nature of their publication (discussed below), makes us wary of asserting that we found all studies in our set of interest. www.annualreviews.org • Randomized Control Trials 299 A Review In this subsection, we review and analyze the results of our three-year search for RCTs in the US legal profession. The relevant references are set out in a footnote2 and appear in Table 1. We ﬁnd this set of studies revealing in several respects. First, RCTs in the US legal profession are more numerous than we anticipated. An exact count requires resolution of an unproductive deﬁnitional debate because some ﬁeld operations generated more than one publication, whereas others involved more than one treatment contrast. But however we counted, we found approximately 50 RCTs that met our inclusion criteria. That number is pathetic when compared with the number of RCTs produced in medicine, or even in social science areas related to law, such as criminology (Farrington 1983, Farrington & Welsh 2005). But it is far more than enough to rebut the argument that the randomized ﬁeld experiment is impossible in law (Engel 2013). Thus, the US legal profession’s resistance to the RCT does not stem from a lack of useful RCT examples. In a profession whose thinking is dominated by precedent, precedents exist. Second, the studies in our set were difﬁcult to locate. They appeared in economics journals (e.g., Abrams & Rohlfs 2011), National Institute of Justice reports (e.g., Baker & Sadd 1981), state court administrative ofﬁce technical reports (e.g., Clark et al. 1995), think/research tank research reports (e.g., Davis et al. 2000), specialized legal journals (e.g., Deschenes et al. 1995), psychiatry journals (e.g., Ditman et al. 1967), Federal Judicial Center reports (e.g., Eaglin 1990), “law and” journals (Seron et al. 2001), criminology journals (e.g., Goldkamp & White 2006), monographs (e.g., Goldman 1980), public policy evaluation journals (e.g., Gottfredson et al. 2005), generalist state government publications (e.g., Hanson & Hersey 1991), individual professors’ websites (e.g., McEwen 1992), psychology journals (e.g., Rudd et al. 2015), books (e.g., Stapleton & Teitelbaum 1972), and National Center for State Courts reports (e.g., Steelman et al. 1986). Only a handful of the studies in our set were published in traditional law reviews (Ayres et al. 1963, Greiner 2011). Thus, it is possible that the extent of the RCT work in the US legal profession has until now been underappreciated. Third, the subject areas encompassed by these studies are broad, extending from alternative dispute resolution (ADR) (e.g., Goldman 1978), to the information judges receive and consider at bail (e.g., Ayres et al. 1963), to different models of legal services provision (Seron et al. 2001), to rules surrounding jury deliberations and instructions (Heuer & Penrod 1994a), to the effectiveness of different modes of adjudication (Gottfredson et al. 2003), and to various other areas. Studies in our set effectively randomized incarceration (Ayres et al. 1963, Schneider 1986); indeed, studies outside our set directly randomized incarceration (Berecochea et al. 1973) and effectively randomized the likelihood of a death sentence (Anderson & Heaton 2012). In only one sense were the studies we found narrow in focus: We found no study meeting our inclusion criteria outside of the litigation context. Thus,
although we do not attempt to delineate a set of legal interventions that are categorically eligible or ineligible for randomized study (we doubt such a delineation is possible), by reference to studies already done, a vast array of legal subject areas appear to be good candidates for RCTs. 2Abrams & Rohlfs 2011; Ayres et al. 1963; Baker & Sadd 1981; Clark et al. 1995; Colbert et al. 2002; Davis et al. 2000; Deschenes et al. 1995; Ditman et al. 1967; Eaglin 1990; Feder & Dugan 2002; Goldkamp & Goddfredson 1984; Goldkamp & White 2006; Goldman 1978, 1980; Gottfredson & Exum 2002; Gottfredson et al. 2003, 2005, 2006; Greenwood & Turner 1993; Greiner & Pattanayak 2012; Greiner et al. 2012; Hannaford et al. 2000; Hanson & Hersey 1991; Harrell et al. 2000; Heuer & Penrod 1988, 1989, 1994a,b; Kakalik et al. 1996; Kobbervig 1991; Labriola et al. 2005, 2008; Mandell & Marshall 2002; Margolin 1970; Marlowe et al. 2003; McEwen 1992; McGarrell et al. 2000; Patridge & Lind 1983; Pearson & Thoennes 1984; Rosenberg 1964; Rudd et al. 2015; Schneider 1986; Seron et al. 2001; Stapleton & Teitelbaum 1972; Steelman et al. 1986; Thoennes 2001; Tomkins et al. 2012; Ursa Inst. 1984; Weitzman 1983; Zuberbuhler 2001. 300 Greiner· Matthews Table 1 Chronological list of randomized control trials in the US legal profession Reference Intervention Civ/Crim Pub. Type Ayres et al. (1963) Bail information Crim Law Rev. Rosenberg (1964) Pretrial conference Civ Mono. Ditman et al. (1967) Probation Crim Psychiatry J. Margolin (1970) Counseling Civ Spec. Law J. Stapleton & Teitelbaum (1972) Legal representation Crim Mono. Goldman (1978, 1980) Settlement conference Civ Law Rev. & Mono. Baker & Sadd (1981) Diversion program Crim NIJ Rep. Patridge & Lind (1983) Settlement conference Civ FJC Rep. Weitzman (1983) Legal representation Crim NIJ Rep. Goldkamp & Goddfredson (1984) Bail guidelines Crim NIJ Rep. Pearson & Thoennes (1984) Mediation Civ Spec. Law J. Ursa Inst. (1984) Legal representation Crim NIJ Rep. Schneider (1986) Restitution Crim Crim. J. Steelman et al. (1986) Settlement conference Civ NCSC Rep. Heuer & Penrod (1988) Jury regulation Both Spec. Law J. Eaglin (1990) Preargument conference Civ FJC Rep. Hanson & Hersey (1991) Mediation Civ State Gov. Pub. Kobbervig (1991) Mediation Civ State Gov. Pub. McEwen (1992) Alternative dispute resolution Civ Web Greenwood & Turner (1993) Delinquency program Crim Crim. J. Heuer & Penrod (1994b) Jury regulation Both Spec. Law J. Heuer & Penrod (1994a) Jury regulation Both Spec. Law J. Clark et al. (1995) Mediation Civ Tech. Rep. Deschenes et al. (1995) Drug court Crim Spec. J. Kakalik et al. (1996) Mediation Civ Think Tank Davis et al. (2000) Batterer treatment Crim Think Tank Hannaford et al. (2000) Jury regulation Civ Spec. Law J. Harrell et al. (2000) Drug program Crim Tech. Rep. McGarrell et al. (2000) Restorative justice Crim Tech. Rep. Seron et al. (2001) Legal representation Civ Spec. Law J. Zuberbuhler (2001) Mediation Civ Spec. Law J. Thoennes (2001) Mediation Civ Tech. Rep. Colbert et al. (2002) Legal representation Crim Law Rev. Feder & Dugan (2002) Counseling Crim Spec. Law J.
Gottfredson & Exum (2002) Drug court Crim Crim. J. Mandell & Marshall (2002) Mediation Civ Tech. Rep. Gottfredson et al. (2003) Drug court Crim Crim. J. Marlowe et al. (2003) Status hearings Crim Crim. J. Gottfredson et al. (2005) Drug court Crim Pub. Pol. J. Labriola et al. (2005) Batterer program Crim Think Tank Goldkamp & White (2006) Pretrial supervision Crim Crim. J. Gottfredson et al. (2006) Drug court Crim Crim. J. (Continued ) www.annualreviews.org • Randomized Control Trials 301 Table 1 (Continued ) Reference Intervention Civ/Crim Pub. Type Labriola et al. (2008) Batterer program Crim Spec. Law J. Abrams & Rohlfs (2011) Bail information Crim Econ. J. Greiner & Pattanayak (2012) Legal representation Civ Law Rev. Greiner et al. (2012) Legal representation Civ SSRN Tomkins et al. (2012) Court reminder Crim Spec. Law J. Greiner et al. (2013) Legal representation Civ Law Rev. Rudd et al. (2015) Parenting program Civ Psychol. J. Fourth, a few of the studies we found were of reasonably high proﬁle within the US legal profession (e.g., Freed & Wald 1964, Botein 1965, and Zeisel 1973 discussing Ayres et al. 1963; Neyfakh 2012 discussing Greiner & Pattanayak 2012). Thus, it is not the case that the US legal profession can ﬁeld only low-proﬁle RCTs. Fifth, we found examples of complicated, multiyear, multisite, expensive, government- or foundation-funded RCTs in the law (e.g., Stapleton & Teitelbaum 1972). Thus, members of the USlegalprofessioncanmount,andhavemounted,ﬁeldoperationsbearingalloftheaccoutrements of the standard medical RCT [see Marks’s (1997) description of the streptomycin/tuberculosis study]. Sixth, although we did not search exhaustively, what looking we were able to do generated no evidence that the results of an RCT in the US legal profession were actually used, in the sense that a program or policy changed because of the study’s results. The closest we were able to ﬁnd was that of Ayres et al. (1963) (see Zeisel 1973, pp. 111–12), which either contributed to or coincided with a movement to greater own-recognizance pretrial release in criminal cases (see Freed & Wald 1964). Thus, although “the absence of evidence is not evidence of absence,”3 we are reminded that producing a rigorous evidentiary foundation for some part of the US legal profession’s practices and persuading members of the profession to use that foundation are separate and formidable challenges. Seventh, in the course of our search, we uncovered early (Zeisel et al. 1959) and periodic (e.g., Goldman 1983, Zeisel 1973) calls for the increased use of the randomized ﬁeld experiment in the law. Thus, RCTs have remained scarce in the US legal profession despite advocacy on the subject. The reasons for the relative scarcity of RCTs in the US legal profession remain elusive. THE UNITED STATES LEGAL PROFESSION’S RESISTANCE TO RCTS In this section, we defend an assertion we have made previously, namely, that the US legal profession is, and has been, resistant to RCTs. One form of evidence to support our assertion would be numerous examples of well-designed, informative RCTs that researchers proposed to members of the US legal profession, but which were rejected. For obvious reasons, such evidence is difﬁcult to ﬁnd in the published literature. We are, however, fortunate enough to have had many such experiences ourselves. Studies we have proposed, and had rejected, include a follow-up to an already-completed study on the effectiveness of legal assistance (rejected on the grounds that randomizing legal assistance is unethical); proposals to evaluate early neutral evaluation and mediation programs in the federal courts (rejected on the grounds that no two cases are sufﬁciently alike 3The phrase is apparently from astronomer Martin Rees (see Morris 2014), not former Secretary of Defense Donald Rumsfeld. 302 Greiner· Matthews for quantiﬁed study, even though they were all subject to the same ADR interventions); a design that would have assessed the effectiveness of limited assistance representation in a specialized state court (rejected with the comment that we do not need
a randomized study to tell that light switches work); and an operation that would have assessed the effectiveness of differing content and format of letters urging indigent litigants to attend legal information clinics (we remain uncertain as to the basis for this rejection). Field studies often meet resistance, and ultimately do not go forward, for several reasons. Nonetheless, in each of these instances our experience was that resistance to the idea of randomizing the intervention played a role in the rejection of the study. To this, we add that in the 80-odd years since the publication of the clinical trial by Amberson et al. (1931), US medical research has produced randomized ﬁeld experiments in such volume that attempting a count would be a fool’s errand. For new drugs and medical devices, the ﬁeld RCT has become enshrined in law [Pub. Law No. 87–781, 76 Stat. 780, 781 (Oct. 10, 1962) (requiring “adequate and well-controlled studies”), see Harris 1981]. The US legal profession has not enshrined the RCT in the law. Instead, since the early 1930s, it has produced fewer than one randomized ﬁeld experiment per year. Finally, we supplement this discussion with three anecdotes. These anecdotes demonstrate that, even when researchers have been able to ﬁeld RCTs in the US legal profession, lawyers and judges sometimes undermined them. And the lawyers and judges who did so appeared to have a common motive: certainty as to the “right” answer. We return to the theme of certainty in the ﬁnal section. The 1970s: CAMP and the Second Circuit In the mid-1970s, attempting to respond to an inﬂux of appeals, the Chief Judge of the United States Court of Appeals for the Second Circuit ordered lawyers in ﬁve pending appeals to attend settlement conferences over which he personally presided. Faced with encouragement to settle from the most powerful judge of the court that would eventually adjudicate their cases, and a potential member of the adjudicatory tribunal’s panel, the parties in all ﬁve appeals reached agreement before oral argument. The Chief Judge then constituted the Civil Appeals Management Program (CAMP). CAMP consisted of a mandatory one-hour preargument conference presided over by a lawyer working for the Second Circuit. The Chief Judge predicted that CAMP would reduce the rate at which cases reached the oral argument stage of litigation by 25 percentage points; he also set, as the key criterion for CAMP program effectiveness, an absolute minimum of a 10 percentage point reduction in the oral argument rate. CAMP needed funding for its presiding lawyer. Funding was provided, but at the same time, the Federal Judicial Center designed and implemented an RCT. This ﬁrst RCT showed no statistically signiﬁcant reduction in oral argument rates in CAMP versus non-CAMP cases. “The Second Circuit remained committed to the CAMP concept and maintained the program” (Patridge & Lind 1983, p. vii). A 1978 Second Circuit report credited CAMP as the reason why the Second Circuit, alone among the federal courts of appeals, closed more cases than it opened that year. And the Second Circuit requested that funding for CAMP continue. The funding was provided, but a second RCT began. Before the second RCT could be ﬁnished, however, the Chief Judge found sufﬁcient political clout to terminate it. The reason given: “the reluctance of the court to continue to exempt [control cases] from the CAMP program” (Patridge & Lind 1983, p. 2). Prior to the Chief Judge’s efforts, however, cases sufﬁcient in number for a statistical analysis had made it through the second RCT’s randomization protocol. The published analysis of those cases may be suspect because of an attempted adjustment for the fact that two different attorneys, rather www.annualreviews.org • Randomized Control Trials 303 than a single attorney, conducted the CAMP conferences during the second RCT.4 Accepting the results at face value, CAMP caused a 9.9 percentage point reduction in oral argument rates at p = 0.049. In other words, it failed the Chief Judge’s prespeciﬁed absolute minimum success criterion. The Federal Judicial Center concluded, “the potential of [CAMP] is so great that all persons sharing responsibility for the management of appellate caseloads should give these procedures serious consideration” (Patridge & Lind 1983, p. vii).5 The 1990s: Mandatory Domestic Violence Counseling and Broward County In the 1990s, interest arose in mandatory counseling for perpetrators of misdemeanor domestic violence. At the time, no randomized evaluation of a mandatory counseling program had been conducted. Researchers arranged one in Broward County, Florida, which already had a mandatory counseling program in place. Prior to the R
CT’s inception, the researchers initiated conversations with relevant stakeholders, including trial court judges and the prosecutor’s ofﬁce. The prosecutor’s ofﬁce opposed the study. With the support of the trial judges and the backing of the National Institute of Justice, the researchers persevered, ﬁelding an RCT comparing one year of probation (control) to one year of probation plus six months of mandatory counseling (treated). The prosecutor’s ofﬁce also persevered. It opposed the project on three fronts. First, it went to the press, encouraging reporters to ask questions comparing the experiment to those conducted by the Nazis. The press ultimately wrote balanced articles, and the RCT continued. Second, the prosecutor’s ofﬁce encouraged the probation ofﬁce, victims’ advocates, and other courthouse staff to create a difﬁcult workplace for the RCT’s research assistants. The efforts were successful in inducing high turnover among the research assistants and diverting the principal researchers’ attention to constant training of new staff, but the RCT continued. Third, without giving notice to the researchers or trial judges, the prosecutor’s ofﬁce sought and obtained an appellate court order reversing trial court orders issued as part of the study. But the appellate court order was ambiguous. When the prosecutor’s ofﬁce ﬁled an emergency motion seeking clariﬁcation and an immediate resentencing of all control group defendants, the appellate court reversed itself and held that it lacked jurisdiction. By this time, the ﬁeld operation was largely complete. The prosecutor’s ofﬁce contended throughout that an RCT was unethical and illegal because it denied victims whose batterers were in the control group the beneﬁt of having their batterers undergo the mandatory counseling program. The RCT’s results were as follows: Based on offender self-reports, victim reports, and ofﬁcial records, there was no statistically signiﬁcant difference between treated and control groups in batterer rearrest rates, in (minor or severe) reabuse rates, or in batterer attitudes or beliefs regarding domestic violence (Feder & Dugan 2002).6 The 2010s: Representation in Agency Unemployment Appeals in Boston Recently, one of us coauthored a study in partnership with a faculty-overseen, student-run clinic. The study evaluated the clinic’s practice of representing claimants in internal agency appeals of claims adjuster decisions on unemployment beneﬁts applications. The study randomized eligible claimants to either a clinic offer of representation (treated) or the provision of a list of other organizations that might provide assistance (control). 4This adjustment would be appropriate only if all CAMP conferences were to have been conducted by that single, speciﬁc attorney for their duration. 5The account above is taken from Goldman (1980), unless otherwise noted. 6The account above is taken from Feder et al. (2000). 304 Greiner· Matthews As just suggested, at the time of the study, the student clinic was one of several organizations that represented claimants in these appeals. One such organization opposed the study from its outset, with some staff arguing that randomizing claimants to no offer of representation was unethical. When the researchers pointed out that all Boston area organizations providing claimant representation, including the one opposing the study, were oversubscribed (meaning that they regularly turned away eligible claimants requesting representation owing to lack of resources), the legal aid provider maintained its opposition. When the study results became available, it turned out that approximately 39% of the control group had obtained representation (Greiner & Pattanayak 2012). Although far less than the treated group’s representation rate (which was around 90%, id.), this ﬁgure was hard to understand given the aforementioned oversubscription. Subsequent conversations revealed that the legal services organization opposing the study, for the duration of the ﬁeld operation, changed its intake practices. Before the study, it had considered any claimant seeking its assistance who had ﬁrst been turned down by the student clinic (again, oversubscription) as equivalent to any other claimant. During the study, however, this organization prioritized representing study group control claimants. The organization later asserted that the study had caused it to have to stretch its resources. The study found no statistically signiﬁcant difference in claimant success rates between treated and control groups. It also found that the student clinic’s offer of representation slowed adjudication by approximately three weeks, this in a setting in which—for those clients who are seeking beneﬁts rather than defending an existing award—“timeliness is next to godliness” (Mashaw 1996, p. 19) because an eligible claimant ordinarily needs beneﬁts as soon as possible. After the study’s results became public, a different legal services provider contacted the research team, seeking assistance in conducting an RCT of its own unemployment representation practice. We
were unable to help. In an effort to save resources, the provider that contacted us had earlier placed its intake system under the control of the organization that had opposed the study. The latter entity would not allow the former to conduct the RCT it desired. WHY NOT LAW (AND WHY MEDICINE)? WHAT CAN BE DONE? The previous sections make for grim reading. Except perhaps for the ﬁnding that RCTs in the US legal profession are (slightly) more numerous than we, at least, had anticipated, there is little to love. For those of us who think the present situation is bad, what can be done? We are not sure. But we are impatient for change, and that may mean exploring various mechanisms for inducing change despite uncertainty as to their effectiveness. What mechanisms? Again, we are not sure. As noted above, however, we suggest that one way to generate ideas is to ask why and how US medicine chose to transform itself into a science, even as US law did not. Medicine is an apt foil for this analysis because it is another quintessential profession. In the United States, attorneys and physicians have traditionally shared four key attributes: expert knowledge, technical autonomy, an orientation toward the service of others, and high social status and income (Gorman & Sandefur 2011). Much has changed, for both professions. But the similarities between the two allow us to call into question some theories for why the RCT has failed to ﬁnd a place in the US legal profession. And in our experience, legal professionals assert these theories as arguments for why RCTs are not compatible with judging or with the practice of law. Exposing these theories as myths, and digging deeper into the differences between law and medicine as they relate to RCTs, may prove fruitful. One such theory/myth is that the RCT is incompatible with the concept of professional judgment. For example, judges have rejected our overtures regarding promising RCTs because they would temporarily have to give up a portion of their decision-making power, i.e., their professional www.annualreviews.org • Randomized Control Trials 305 autonomy. A second such theory/myth is that each case or client is irreducibly complex. That is, no two cases (or clients) are sufﬁciently alike to allow one to think of them intelligently as elements of a portfolio, units susceptible to the application of one or more repeatable algorithms as opposed to requiring the application of individualized, expert knowledge. Both arguments depend on the absolute primacy of professional judgment. But the past 80 years of experience with the RCT in medicine demonstrates that professional judgment and the RCT can coexist in various states of symbiosis. A historian of the ﬁrst large-scale medical RCT, the investigation of streptomycin for the treatment of tuberculosis, states that what distinguished the study from prior research on the same drug “was not the involvement of specialists, but their apparent willingness in this instance to subordinate individual judgment to a common purpose” (Marks 1997, p. 126).7 The RCT might be thought of as a tool to provide information to improve professional judgment. Or it might be thought of as a way to prevent professionals from pursuing ineffective, or economically unjustiﬁed, courses of action. Under the former view, RCT results improve the decisions of the professional, who maintains complete individual autonomy once the results are known. Under the latter view, RCT results restrain unproductive or destructive impulses of the (only human) professional, whose autonomy is circumscribed even after the results are known. Either way, even if one is not inclined to question the premise that leaving critical decisions in the hands of human professionals is always best (we are so inclined), the past 80 years in medicine show that although there may be friction between the RCT and professional judgment, there is no fundamental incompatibility. Another theory/myth of why RCTs are incompatible with judging or with the practice of law focuses on professional ethics. For example, in a response to an early version of a paper one of us coauthored, an attorney contended that if a legal services provider used an RCT to evaluate a program providing full representation to eligible clients, its attorneys would be required to advocate for clients with frivolous cases, violating their duty of candor to the tribunal (Monsell 2011). And scholars have explored the tension between a professional’s duty to advance her client’s or patient’s individual best interests and her duty to accumulate knowledge to further the best interests of future patients (Fried 1974). Once again, the medical example demonstrates that any tension between RCTs and professional ethics is resolvable. Regarding the duty of candor to the tribunal, as Greiner (2011) explained at the time, there need be no conﬂict. A merits screen applied at intake, and a motion to withdraw from representation when factual investigation shows a lack of merit, can be deﬁned respectively as a
study eligibility criterion and a part of the service being evaluated. In medicine, research physicians impose all sorts of eligibility criteria in drug trials, and a doctor might retain the option to remove clinical trial patients who adopted a post-enrollment course of action incompatible with the study (e.g., resuming a smoking habit inimical to a drug’s active ingredient). The accounts above are cursory and incomplete. One could argue each human body and its ailments are not irreducibly complex, but each legal case or client is. We doubt that to be the case. Modern complex litigation (class actions, multidistrict litigation) consists in part of aggregating claims into portfolios of similar units [e.g., Federal Rule of Civil Procedure 23(a)’s commonality requirement], and at the other end of the scale, debt buyers have commoditized collection litigation ( Jim´enez 2015). And even if legal, but not medical, cases now appear irreducibly complex, perhaps that is because we are viewing matters on the right side of eight decades of medical RCTs. But 7To reiterate, our point here is not that all is rosy in the medical profession, just that the situation in medicine is vastly superior to that in law. 306 Greiner· Matthews because at a broad level professional judgment and professional ethics are common to both law and medicine, neither is likely to be a fruitful focus for exploration as to our questions of interest. So what would be a fruitful focus for exploration? For the third time, we are unsure. But to close this paper, we offer some speculation. Our speculation is built on the assumption that the desire to deploy RCTs must stem from an internalization of uncertainty. Without a deep sense of uncertainty about how the world works, there is little reason to seek methodologies for producing knowledge external to one’s own experiences and those of elites within one’s profession. And as at least one scholar would have it, medicine’s adoption of the RCT stemmed in part from a desire among elite physicians to establish an irrefutable methodology to distinguish effective therapies from commercially promoted snake oil (Marks 1997). Such a project had to depend on the elite physicians’ ability to persuade their contemporaries to view the claims of commercial interests, and the knowledge gained by their own experiences, with skepticism. Are there distinctions (we speculate socially constructed ones) between law and medicine that might lead present-day practitioners of one but not the other to internalize a norm of acknowledging uncertainty? We are not the right scholars to address this question. We lack training in history, history of science, sociology, epistemology, psychology, and most other ﬁelds directly relevant to this inquiry. At present, all we can offer are two thoughts based, alas, on our own experiences. Our ﬁrst thought concerns the nature of the two professions’ diagnostic thought processes. The stereotypical physician confronted with an ailing patient begins an inquisitive diagnostic process. The physician’s diagnostic process is supposed to address the question, “What is wrong?” The physician does not initially know, and she searches for an answer. For the stereotypical lawyer, however, the process of diagnosis is less inquisitive than instrumental. The client states her desires (perhaps with varying degrees of clarity), in the form of the status she wants to achieve (e.g., no longer married) or the goal she wishes to reach (e.g., avoiding or minimizing imprisonment, obtaining beneﬁts, remaining in an apartment). Within wide boundaries, the stereotypical lawyer’s diagnostic process is not a search for answers. Answers come from the client. The stereotypical lawyer’s diagnostic process is a search for arguments. At least for litigation or quasi-adversarial settings, analysis is in the service of advocacy from square one. Thus, our speculation is that because lawyers train themselves in instrumental, as opposed to inquisitive, analysis, the result is ingrained arrogance. There is less willingness to acknowledge the kind of uncertainty needed to make an RCT relevant. Our second strand of speculation is related but easier to state: Perhaps there is an implicit belief among lawyers and judges that to appear certain one must be certain, and that there is social value in appearing certain. As present and former litigators, we (the authors) believe that to be maximally effective advocates, we must temporarily believe in the rightness of the positions that we argue. Similarly, judges might doubt that there would be as much voluntary compliance with law if, each time a judge sentenced a criminal defendant to a period of incarceration, the judge stated on the record, “I do not know if conﬁning you will do you any good. I also do not know if conﬁning you will deter others, or give the victims of your crime closure, or will otherwise serve any useful purpose. But I will nevertheless sentence you to x years.” Instead, some judges may have internalized the belief that they must appear certain to be effective, and to appear certain they must be certain. One might argue that the same could
be true in medicine. Perhaps physicians believe that they must persuade patients that they are certain about a proposed treatment for that treatment to be effective, and to persuade patients of certainty physicians must actually be certain. We doubt it. Our own physicians do not behave this way. The fact that ideal drug trials are double-blind suggests that the medical community does not uniformly think this way. And one might argue that it is harder to tell a story of how a physician’s certainty with an individual patient during www.annualreviews.org • Randomized Control Trials 307 a presumptively conﬁdential consultation has as much of an effect on society as a judge’s public sentencing of a criminal defendant has on other citizens. Our speculation is that the norm of certainty is stronger in lawyers than in physicians. For the umpteenth time, we emphasize that all of this is speculation. There are other hypotheses that are worth testing, perhaps with behaviorally or psychologically informed survey research. But whatever portion of the above is true would appear to us to be socially constructed and, perhaps, subject to change. For those of us who care about transforming law into a ﬁeld less hostile to the RCT, that may be cause for hope. 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. ACKNOWLEDGMENTS The authors thank Ellen Degnan, Don Green, Kevin Quinn, Chris Robertson, Ameet Sarpatwari, Roseanna Sommers, Dane Thorley, and David Yokum for helpful comments. All mistakes are our own. LITERATURE CITED Abramowicz M, Ayres I, Listokin Y. 2011. Randomizing law. Univ. Penn. Law Rev. 159:929 Abrams DS, Rohlfs C. 2011. Optimal bail and the value of freedom: evidence from the Philadelphia Bail Experiment. Econ. Inq. 49(3):750–70 Abrams DS, Yoon AH. 2007. The luck of the draw: using random case assignment to investigate attorney ability. Univ. Chic. Law Rev. 74(4):1145–77 Albiston CR, Sandefur RL. 2013. Expanding the empirical study of access to justice. Wis. Law Rev. 2013:101–20 Amberson JB, McMahon BT, Pinner M. 1931. A clinical trial of sanocrysin in pulmonary tuberculosis. Am. Rev. Tuberc. 24:401–35 Anderson JM, Heaton P. 2012. How much difference does the lawyer make? The effect of defense counsel on murder case outcomes. Yale Law J. 122:154–217 Ayres CE, Rankin A, Sturz H. 1963. The Manhattan Bail Project: an interim report on the use of pretrial parole. N.Y. Univ. Law Rev. 38:67 Baker SH, Sadd S. 1981. Diversion of Felony Arrests: An Experiment in Pretrial Intervention. Washington, DC: US Dep. Justice, Natl. Inst. Justice Berecochea JE, Jaman DR, Jones WA. 1973. Time served in prison and parole outcome: an experimental study. Tech. Rep. 1, Calif. Dep. Correct. Res. Unit, Sacramento Boissel JP. 1989. Impact of randomized clinical trials on medical practices. Control. Clin. Trials 10(4):120S–34S Botein B. 1965. The Manhattan Bail Project: its impact on criminology and the criminal law process. Texas Law Rev. 43:319 Chilton AS, Levy MK. 2015. Challenging the randomness of panel assignment in the Federal Courts of Appeals. Cornell Law Rev. 101:1–55 Clark SH, Ellen ED, McCormick K. 1995. Court-ordered civil case mediation in North Carolina: an evaluation of its effects. Tech. Rep., N.C. Adm. Off. Courts, Chapel Hill. http://courtadr.org/ﬁles/ CourtOrderedMedNC.pdf Cohen IG. 2013. Rationing legal services. J. Legal Anal. 5:221 Colbert DL, Paternoster R, Bushway S. 2002. Do attorneys really matter? The empirical and legal case for the right of counsel at bail. Cardozo Law Rev. 23(5):1719–93 308 Greiner· Matthews Davis RC, Taylor BG, Maxwell CD. 2000. Does batterer treatment reduce violence? A randomized experiment in Brooklyn. Tech. Rep. 180772, Urban Inst., Washington, DC. https://www.ncjrs.gov/pdfﬁles1/ nij/grants/180772.pdf Deschenes EP, Turner S, Greenwood PW. 1995. Drug court or
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to contextualize women’s lack of progress since the Manifesto was issued. We turn next to a contemporary proﬁle of women in private practice that demonstrates empirically where women stand. Our third section looks at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women’s lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. Here, we assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women’s contributions, in part because of the gender bias that is often embedded in them. Our fourth section considers the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes in law practice aimed at remedying the problems discussed here. THE DOWNTURN AND ITS EFFECTS Signiﬁcant scholarly attention, including law review symposia (Fuchs Epstein & Kolker 2013; Posner 2009; Sterling & Reichman 2010; Wald 2010a,b), has considered the impact of the Great Recession, which was devastating for law ﬁrms, for the lawyers who worked within them, and for the law students who hoped to be employed by them (see Grace 2011; Law School Adm. Counc. 2014; Wald 2010a,b). The result was a signiﬁcant restructuring within and between law ﬁrms, but in ways that offered few, if any, opportunities to challenge the durability of inequality in the profession (see Epstein & Kolker 2013 for one of the few analyses of the gender implications of the economic downturn). Although other broad trends, such as the internationalization/globalization of law ﬁrms, inﬂuenced the trajectory of women in law before, through, and after the Great Recession (Henderson 2007, Kay et al. 2013), our review focuses most directly on changing opportunities for advancement within ﬁrms that have had the most immediate effect and consequence for understanding the persistence of women’s lack of progress in the legal profession. These include changes in hiring practices, for example, the introduction of new rungs to the ladders of mobility within ﬁrms, which elongated the path to partnership for some and trapped others in positions with little way forward, as well as changing fee structures and systems of valuation in response to the post-Recession economics of ﬁrms. 374 Sterling· Reichman Fewer Hires As the recession took hold, large law ﬁrms experienced a decline in gross revenue (3.4%) and began lawyer and staff layoffs, including at least 5,632 lawyers. Summer Associate programs were drastically reduced anywhere from 20–81%. Outside training programs were eliminated, and fringe beneﬁts were reduced (Dilloff 2011). Associates who had received job offers were given deferrals, and in some cases the offers were rescinded. In the spring of 2009, law schools reported to the National Association for Law Placement (NALP) that only 88% of their graduates were employed, the biggest decline since the mid-1990s (NALP 2010). Firms cut costs by disaggregating legal services and outsourcing some of their work, further reducing the demand for associates. In addition, these ﬁrms turned to non-partner-track positions—which both are cheaper and reduce the number of future promotions to partner (Regan & Heenan 2010). When the economy began its recovery and ﬁrms began hiring again, they were less willing to use reduced proﬁts to train associates (Dilloff 2011). The result has been increased pressure on law schools to produce new lawyers who are practice ready, i.e., able to hit the ground running upon being hired. More Positions, Less Mobility Until the end of the twentieth century, private law ﬁrms were composed of associates, the junior and salaried lawyers and partners, and the senior lawyers compensated by a division of ﬁrm proﬁts. Associate status was viewed as probationary. Lawyers were offered ﬁve to seven years to establish themselves as worthy to join the partnership, usually achieved simply by having the appropriate tenure at the ﬁrm. Associates and partners might be joined by lawyers designated as “of counsel,” very senior lawyers who were not quite ready to retire and wanted more ﬂexibility as they prepared for their exits and lawyers who offered a reputational advantage to the ﬁrm. A new tier, the non-equity partner, was introduced into the law ﬁrm structure in the mid1980s (Henderson 2006, 2011). Rather than transitioning directly into the partnership, associates who proved themselves remained salaried employees who did not share directly in the proﬁts and losses of the ﬁrm, but who nonetheless assumed partner designation. The probationary
period was extended, typically to 10 to 14 years. (Dilloff 2011, Galanter & Henderson 2008). And, rather than simply a matter of tenure, the partner title became linked to performance, most importantly a lawyer’s contribution to the bottom line of the ﬁrm. The criteria for moving from non-equity partner to the more prestigious equity partner was a mystery at many ﬁrms. The fact that women seemed to ﬁnd themselves stuck in non-equity status led some to refer to the non-equity tier as the “pink ghetto” (Triedman 2015). Also in the mid-1980s, the term “of counsel” began to take on new meaning. Rather than being reserved as a place of privilege, many lawyers were designated “of counsel” early in their careers, when they or their ﬁrms decided that they should be moved outside the partnership track. Law ﬁrms also increased their use of staff attorneys. Like “of counsel” attorneys, staff attorneys were not on the partnership track. Staff attorneys earned less than associates, were assigned less interesting work, and had a small chance of advancement to the partnership track. They were disproportionately (60%) women (Fuchs Epstein & Kolker 2013). The use of these new positions intensiﬁed as proﬁts declined during the Recession and ﬁrms had to ﬁnd new ways to save money and increase proﬁts per partner, an increasingly important metric of ﬁrm performance. The term proﬁts per partner made its ﬁrst appearance in the mid1980s when publications like the American Lawyer and the National Law Journal began to rank ﬁrms by total revenue broken down by the number of partners. This measurement allowed lawyers to compare proﬁtability between ﬁrms and became a driving force for lawyer mobility during the www.annualreviews.org • Overlooked and Undervalued 375 Recession (Galanter & Henderson 2008). Law ﬁrms act as if this metric is a meaningful way to distinguish themselves. However, similar to the US rankings of law schools, the metric is primarily a marketing tool. Searching for even more creative ways to lower costs during and following the Recession, some of the larger AmLaw 200 ﬁrms established the position of “career associate.” Attorneys who ﬁlled these new positions were not working out of the home ofﬁces in cities such as New York or Los Angeles. Instead, career associates could be found in ofﬁces built by big law ﬁrms in cities, such as Wheeling, West Virginia, chosen because the cost of living and consequently the salaries are signiﬁcantly lower. The career associate in Wheeling starts with a salary of approximately $50,000–$65,000 instead of the $165,000 typical of the large legal markets (Rampell 2011). These new positions save the ﬁrms money and do not obligate them to promote this new form of associate to the partner track. New Fee Structures and Performance Metrics After the Recession, the inefﬁciencies of some of the large ﬁrms became both more apparent and more important to clients who were empowered to demand lower legal costs. Some lawyers responded by leaving large ﬁrms to start small spin-offs or join boutiques that specialized in particular types of business (e.g., patent litigation, intellectual property, mass tort litigation, and class actions), where they could charge signiﬁcantly less overhead. Discounting fees also became a common practice. Following the recession, 78% of associates, partners, and staff were offering discounted rates to their biggest corporate clients (Dilloff 2011). Large law ﬁrms also adopted what was traditionally a small-ﬁrm strategy of billing their clients on contingency. A contingency fee is calculated as a percentage of the client’s ﬁnancial recovery, typically 30% of the amount recovered by the client (less costs of the litigation). Other changes to the billing systems included charging by the hour, ﬁxed fees, value-based billing, and hybrids that included some combination of strategies. With new fee structures in place, partners felt pressure to modify and expand upon billable hours as the key assessment of associate performance and to emphasize competencies and skills associated with their fees (Dilloff 2011). Business skills, including time management, and organizational skills, client service, teamwork, and leadership became part of the lawyer evaluation (Dilloff 2011), at least in theory. In these new systems, lawyers are rewarded for being well-versed in marketing and self-promotion, as well as possessing outstanding legal skills; thus, a lawyer who is viewed as a “shrinking violet” (Dilloff 2011) might ﬁnd herself out of work or permanently assigned to review documents in a dusty warehouse. Renewed Emphasis on Rainmaking The pro
ﬁt squeeze meant that bringing in business and clients took on even more importance for ﬁrms after the Recession. Rainmakers are ﬁnders, lawyers who are valued not only for their legal prowess but for their remarkable, even magical skill in attracting new clients to the ﬁrm. Traditionally, rainmakers operate in stark contrast to the ﬁrm’s minders, lawyers who focus on retaining other lawyers’ clients, and grinders, lawyers who provide detailed legal work to inform the legal strategy of those directly responsible for clients [see Nelson’s (1988) classic discussion]. During and after the Recession, rainmakers, often for the ﬁrst time, were tasked with minding their own clients and grinding out the work (Dilloff 2011). Even when powerful members of the ﬁrm were engaged in the more mundane work of client retention and research, the reward structures continued to privilege their rainmaking work, a practice that has consequences for women, as we describe later. 376 Sterling· Reichman THE GENDERED LANDSCAPE OF PRIVATE LAW PRACTICE How have women fared as the practice of law has changed around them? The facts remain consistent and conclusive. Despite some structural changes in legal practice that might have worked to improve the status of women in the profession, women continue to lag behind men in their representation in legal practice, career earnings, and advancement. Thus, perhaps not surprisingly, they continue to be more likely than men to leave law practice. The Pipeline to Practice: Law Schools The representation of women in law schools has declined slightly since its peak in 1993, when women made up more than 50% of ﬁrst-year enrollment in law schools (Temple 2012). Since the Recession, there has been a small upward trend in women’s representation in law admittance (from 45.8% in 2010 to 48.8% in 2014), even as the overall number of students admitted to US law schools has dropped from 60,170 admitted students in the fall of 2010 to 43,370 in the fall of 2014. Not all regions experience the more positive national trends. In 2012, the Law School Admissions Council reported that women represented only 40% of ﬁrst-year law students in some of the less-populated areas (NALP 2013). Statuses Within Legal Practice The American Bar Association (ABA) Study of Women in the Profession reported that in 1971 only 3% of US lawyers were women (Curran 1995). Since then, legal scholars and professionals have been optimistic about changes in the composition of the profession, particularly in the United States. Women in the United States now make up 36% of the legal profession (ABA Comm. Women Prof. 2016), a considerable change in 45 years, but certainly not representative of the overall population. Women make up a larger proportion of the legal profession in Canada (36%), Finland (43%), and France (45%). Women make up 46% of solicitors in England and Wales and 42% of solicitors in Australia. However, when looking at barristers in England and Wales, the representation of women in the profession drops closer to the approximately 30% found in the United States. In Victoria, Australia, women are even less represented in the ranks of barrister, a mere 16.3% (Boigeol 2003, Campbell & Charlesworth 2012, Hunter 2005, Rachman-Moore et al. 2006, Schultz & Shaw 2003, Sommerlad et al. 2010, Thornton & Bagust 2007). Absolute numbers also say little about the position of women in the profession in the United States. New categories and titles complicate that position and make it challenging to analyze trends. Still, despite some increase in women’s participation in all positions, they remain disproportionately in less powerful and prestigious positions. The representation of women in the ranks of law ﬁrm associates increased from 39% in 1993 to its peak of 45.7% in 2009, a ﬁgure that remained ﬂat through 2013 and is now witnessing a slight decline. In 2015, women made up 44.7% of all associates—the lowest representation since 2006, before the Recession (NALP 2015). Studies that empirically model the path to partnership continue to ﬁnd that women are less likely to become partners than comparable men are (Beiner 2008, Gorman & Kmec 2009, Noonan et al. 2008, Rhode 2014). By the time they are seven years out of law school, men are two to ﬁve times more likely than women to become partners (Dinovitzer et al. 2009). The partnership disparity exists even for those women who never take time out for family and work long hours (
Dau-Schmidt et al. 2009, Noonan et al. 2008, Sommerlad 2015, Williams 2010). Representation of women at major US law ﬁrms has changed little in the past ﬁve years. In 2010, 2012, and 2014, women made up 19.4%, 19.1%, and 21% of partners, respectively (NALP www.annualreviews.org • Overlooked and Undervalued 377 2014a), and in 2015 women accounted for only 21.5% of partners of all kinds (NALP 2015). The representation of women of color in partnership is substantially lower as well. Just 7.52% of partners in 2015 were minorities, and 2.55% of partners were minority women (NALP 2015). Women made up a slightly greater percentage of non-equity partners (28%) than of equity partners (18%) (Rikleen 2015). The introduction of multi-tier partnerships has not served women well in many cases. Recent analysis by NAWL suggests that women’s representation in the highest positions is lower when ﬁrms use a multi-tier model. In 2015, 16% of equity partners in the typical two-tier ﬁrm, i.e., ﬁrms that include both equity and non-equity partners, were women, a very slight increase over the last decade. By way of contrast, in single-tier ﬁrms, women made up 20% of the equity partners in 2015, also representing a slight (1%) increase over that period (Rikleen 2015). Most of the growth of equity partners in the big law ﬁrms is from lateral hires, or hires from outside the ﬁrm, a strategy that is dominated by men. In 2014, in the AmLaw 200, only 10 lateral hires, or 15%, were female (Kay & Gorman 2012, Triedman 2015). The segregation of women into lower tiers of partnership can have a signiﬁcant economic impact on them. A 2013 ABA Commission on Women reports that “equity partners now [sic] average about 2.5 times the total compensation of their non-equity partners. During the past year [2012], the compensation of equity partners jumped some 11 percent, while the compensation of non-equity partners was essentially ﬂat” (Rikleen 2013, p. 11). An earlier survey of over 700 law ﬁrm partners conducted by Williams & Richardson (2010) demonstrates clearly that even among women partners the difference between being an equity or income partner is consequential to compensation, satisfaction, and retention. In-person interviews from the third wave of After the JD (AJD3) (Plickert et al. 2014) indicate that after 12 years of practice several lawyers are nonequity partners and do not know when or even if they will be promoted to equity partners (data on ﬁle with J. Sterling & B. Garth). Firms responding to the 2015 NAWL survey reported that women represent 44% of the lawyers described as “of counsel” and 54% of staff lawyers. These numbers have ﬂuctuated signiﬁcantly over the years of the NAWL survey but are consistent in that women are more likely to be represented in these lower ﬁrm statuses. These positions are often described as good for women because they are assumed to be more ﬂexible, and therefore more acceptable to women who have family responsibilities. However, these positions rarely have identiﬁed paths for advancement and in some cases are merely temporary work at signiﬁcantly lower pay. Compensation Women lawyers continue to earn less than men—an unwavering ﬁnding across most studies of the profession, whether they are national representative studies described in more detail below or panel studies of elite law schools (Dau-Schmidt et al. 2009, Wilkins et al. 2015). Surveys from the ABA (Sloan 2013, Williams & Richardson 2010) report that female law ﬁrm partners earn approximately $66,000 less than male partners (Rhode 2014). Strikingly, a majority of larger ﬁrms are increasingly reluctant to report data about compensation by gender to the NAWL survey, a trend Scharf et al. (2014) suggest is linked to the persistence of a gender pay gap. In 2014, law ﬁrm consultants Major, Lindsey & Africa surveyed 44,000 law partners listed in the AmLaw 200, NLJ 350, and Global 100 across the United States. They found that male partners’ average compensation was approximately 47% higher than that of female partners, roughly consistent with the 48% differential
they reported in 2012 (Lowe 2014). In 2012, Major, Lindsey & Africa found that men earned more than women in every category of legal work considered. In 2013, men outearned women in only 12 of 16 of their reported categories. Blogging 378 Sterling· Reichman about these results, Natasha Innocenti (2014) commented, “The real story here isn’t the same dispiriting news that women generate less work, and get paid less as a result. The real story is that even when women do report originating similar amounts of work, they still earn less most of the time.” Recent Census data conﬁrm these ﬁndings. The median pay for full-time female lawyers in 2014 was 77.4% of the pay earned by their male counterparts (Weiss 2016). Considering all lawrelated jobs, the median pay for females in 2014 was 51.6% of the median pay received by males. These gaps were larger than the gaps reported in the census comparative ﬁelds. The gender gap in salary begins as early as law school graduation and increases over time (see, for example, Dau-Schmidt et al. 2009, Monahan & Swanson 2009). The median salary for the women in the class of 2014 was 92.3% of the median salary for the men of that class (NALP 2014b). The gap was greater at higher levels of salary. At the seventy-ﬁfth percentile of their respective salary distributions, women earned 87% of men’s earnings, whereas at the lower end of the distribution (twenty-ﬁfth percentile of income), women’s salaries were closer to men’s, but still lower. The most comprehensive look at earnings, After the JD (AJD),1,2 a national, longitudinal study of a representative cohort of lawyers admitted to the bar in the United States in 2000, found that women earned 5% less than men, on average, after only three years of practice (Dinovitzer et al. 2004). A study of Canadian law graduates from 2010 found similar results: Women earned 93% of comparable men’s salaries (Dinovitzer 2015). After 7 years of practice, the gender gap in salaries among the AJD cohort had increased to 13% (Reichman & Sterling 2013), and to 20% after 12 years of practice (Plickert et al. 2014). Whether you are a female or male continues to be an important predictor of compensation in studies that attempt to measure pay disparity. Dinovitzer et al. (2009) used a statistical modeling technique, decomposition, to explain how much of the 5.2% gender earnings gap found in the ﬁrst wave of AJD could be explained by differences in the work proﬁles of men and women (endowments) and how much could be explained by differences in the rewards that men and women receive for the endowments they have. Endowments included standard measures of human capital (law school GPA; elite status of law school attended; and key demographics, including marital and parental status) as well as measures of work setting (size of ﬁrm, market) and experience (work hours). These variables, collectively, were quite successful in predicting salary; they explained nearly three-quarters of the variance in salary, an exceptionally large result in the social sciences. Applying these same variables to their examination of the gap in salary, Dinovitzer et al. (2009) found that only 15% of the gap could be explained by respondents’ sex differences in endowments, i.e., differences in human capital, key demographics, work setting, or experience. Fully 75% of the gap was attributed to women being valued (rewarded) less than men for the endowments they held. Statistically, this 75% of the gap was considered unexplained; the model could not account for the value differences observed. In their analysis of AJD2, Reichman & Sterling (2013) found that gender remained a consistent factor in predicting income, even after controls for demographics and work setting were introduced into their analysis. Further, as others have found, they saw that the salience of gender remained 1The AmLaw 200 is deﬁned as the highest revenue-producing ﬁrms in the United States. The NLJ 350 includes the largest ﬁrms in the United States based on the number of lawyers. The Global 100 includes the world’s largest ﬁrms based on revenue. 2The study tracks this nationally representative sample over the ﬁrst 12 years of their careers. The ﬁrst wave of the study (AJD1) (Dinovitzer et al. 2004) provided a snapshot of the lives and careers of this cohort after 3
years of practice. The second wave of the study (AJD2) examined the progression of lawyers’ careers through roughly 7 years in practice. Finally, the third wave of the study (AJD3) provided data on this cohort 12 years into their careers. www.annualreviews.org • Overlooked and Undervalued 379 signiﬁcant regardless of whether lawyers were parents or not. Male lawyers with and without children earned more than female lawyers. For this cohort of lawyers, there was little evidence of the motherhood penalty or fatherhood premium that has been the subject of intense scholarly interest over the past decade. Women without children earned less than men and women with children. Gender appeared to matter more. It may well be that motherhood and fatherhood effects are so well embedded in cultural schemas that observations out in the ﬁeld, as opposed to social experiments, cannot reveal them. The role that bonuses play in the reported earnings of lawyers is not included in our studies of gender gaps in earnings.3 Still, there are some indicators that women do not receive a proportionate or fair share. In their analysis of survey data released in 2012, NAWL notes that “women constitute nearly 45 percent of the associate pool, yet they receive only 40 percent of the bonuses” (Flom 2012, p. 37). Exits Research continues to show high rates of attrition of women from private practice. Exits from private practice begin early, before partnership decisions are made, and accelerate over time (see Kay et al. 2013 building on earlier work by Brockman 1994; Hirsch 1989; Kay 1997, 2002; Kay & Hagan 2003; Spurr & Sueyoshi 1994). When women do exit private practice, they are more likely than men to search for new employment outside the legal profession. Several studies have successfully documented that it is structural dimensions of law practice and not family dynamics that explain these trends. Most recently, Kay et al. (2013) found that if women are satisﬁed with compensation, promotion opportunities, and prestige, they are less likely to leave private practice. Satisfaction is linked to challenging work assignments (see also Wallace 2001). Finally, Sterling & Plickert’s (2014) analysis of the AJD2 data found that women who opted for part-time positions as lawyers were signiﬁcantly more likely to report that they had experienced discriminatory attitudes or behavior in the workplace. MECHANISMS OF DISADVANTAGE Throughout the ﬁrst decade of the twenty-ﬁrst century, work-family culture and dynamics remained a central feature of studies of women and the legal profession. Research focused on the motherhood penalty, the perception that women were perceived as less committed because of family obligations, whether or not they even had a family, and the effect of parental leave. (For a general update on these issues, see Budig & Hodges 2010, as well as Gough & Noonan 2013.) The work-family culture continues to create disadvantages for women in law (Pinnington & Sandberg 2013, Reichman & Sterling 2013, Walsh 2012). Over the last decade or so, it has become increasingly clear that organizational practices for compensation and promotion are implicated in the persistent disadvantaging of women. Understanding of how key metrics of performance and reward structures are produced has gained increasing importance. In the following section we describe some of the mechanisms of compensation and how women are overlooked and undervalued in each. We begin with a discussion of 3AJD3 (Plickert et al. 2014) attempted to collect both salary and bonus information from lawyers who had been practicing for 12 years. Unfortunately, a large proportion of respondents either did not answer the question about bonus income or made up ﬁgures too outrageous to be considered valid. Clearly the distribution of bonuses can have a signiﬁcant impact on overall compensation, but the information is not yet readily available. 380 Sterling· Reichman who makes compensation decisions, and the lack of women’s voices, and then turn to the assignment of credit for client business, job/task segregation in ﬁrms, client billing, and performance evaluations as continuing sources of women’s disadvantage. Much of what we know about these practices comes from professional organizations, law ﬁrm consulting ﬁrms, and advocacy groups with better access to these kinds of data than academics. Firms vary in how they use these different metrics. Some have so-called objective, compensation formulas. Others employ more open and subjective processes. To the extent that these objective processes are gendered, as we and others (Pearce et al. 2015; Rhode 2011, 2014; Ridgeway 2011; Wald 2010a,b; 2015; Williams 2000) suggest, women will continue to be disadvantaged. Compensation Committees Lack Female Voices and Input
Who makes compensation decisions? Compensation committees that are decidedly lacking in diversity do, according to the female partners responding to Williams & Richardson’s (2010) survey. One-ﬁfth of the 700 partners surveyed indicated that there were no women on the compensation committees at their ﬁrms; half of the women reported only one woman on the relevant committee (Williams & Richardson 2010). Harkening back to Rosabeth Kanter’s (1977) classic Men and Women of the Corporation, as well as a decade of research in the 1990s, the consequence of this lack of diversity is “in-group favoritism,” a term social psychologists use to describe the tendency for people to favor those who are most like them. Citing some of the key research from social psychology, Williams & Richardson (2010, p. 609) note that “When men are the in-group, men—but not women—tend to be given the beneﬁt of the doubt. Objective rules tend to be applied rigidly to women but leniently to men.” The bias that develops in compensation committees that lack diversity is not necessarily prejudicial toward women. Rather, it distinctly favors men. The introduction of a few women on these committees does little to change the outcome, as tokenism dynamics negatively affect both the women and the outcome. Still, women on these committees can make a difference. Rikleen (2015) reports that for the 12 ﬁrms responding to the NAWL survey that had two or fewer female members on the compensation committee, the typical female equity partner earned 77% of that earned by a typical male equity partner. In the 18 ﬁrms that reported three or more women on the compensation committee, the typical female equity partner earned 87% of that earned by a typical male equity partner. Although a more diverse committee might open up more transparency about how things work, very few women lawyers outside of ﬁrm management seem to have a complete understanding of the dynamics of compensation. In the late 1990s, Sterling & Reichman’s interviews with Colorado lawyers revealed that few women had more than a rudimentary understanding of compensation systems. Little appears to have changed. In Williams & Richardson’s (2010) survey of law ﬁrm partners, slightly more than one-third (37%) of equity partners, one-ﬁfth (22%) of income partners, and one-ﬁfth (22%) of minority partners reported that compensation criteria at their ﬁrms were clear. Perhaps even more surprisingly, only 60% of equity partners and 30% of income partners were clear about how their compensation systems worked. This follows, in part, from the concentration of power within ﬁrms. Credit for Client Business as Gendered Practice Law ﬁrm consultant James D. Cotterman suggests that “One can explain 80% to 90% of variability in [equity] partner compensation by knowing just one performance metric—origination” (Williams & Richardson 2010, p. 622). Origination is the term used to describe the credit attorneys receive for bringing in new business. As described earlier, attorneys who specialize in client www.annualreviews.org • Overlooked and Undervalued 381 origination are called rainmakers. In some ﬁrms, origination credit is for perpetuity; i.e, an attorney receives some credit for a client’s future business, regardless of whether he actually works on that business in the future. In other ﬁrms, origination credit sunsets after a speciﬁed time period even if the primary partner remains the main conduit of communication with the client. In still other ﬁrms, origination credit may be shared. Although ﬁrms vary considerably regarding how this credit is awarded, several studies of the practice suggest that women tend to lag behind men in accumulating credit for client billings, regardless of how these billings were generated or who generates them. Williams & Richardson (2010) suggest that over a quarter of the distributed compensation probably goes disproportionately to rainmakers who bring business and clients to the ﬁrm—again, a preference for the work that men do. In 2013, NAWL found that women in the top 100 AmLaw ﬁrms received only 80% of comparable client billings compared to men in their ﬁrms. Women did slightly better in the typical second hundred ﬁrms, where they received 89% of the client billings credited to men. Lowe’s (2014) study for consulting ﬁrm Major, Lindsey & Africa found a 77% spread in originations between men and women in 2014, signiﬁcantly higher than the 44% spread in 2012 and the 50% spread they reported in 2010, suggesting that the practice may be becoming even more problematic for women. A recent study by Keshet Consulting suggests that even when women are involved in activities to bring in new clients
, their contribution to that effort can be overlooked. Keshet reports that although “both men and women participate in client pitches, such pitch group participation was far more signiﬁcantly correlated with origination credit for men than for women” (cited by Rikleen 2013, p. 12). This factor is compounded when women receive fewer referrals for new work than do men (Rikleen 2013). Thus, it is perhaps not surprising that the 80% of the female equity partners Williams & Richardson (2010, p. 634) interviewed felt they had been denied their fair share of origination credit in the last three years. Nearly half of them reported that they faced disputes about origination. The most prominent women in a ﬁrm who control a signiﬁcant amount of business may be less likely to feel the gender effects, according to Patricia K. Gillette, an employment lawyer at Orrick, Herrington & Sutcliffe LLP. However, women “one rung below, among female partners who may bill thousands of hours a year but aren’t regarded as rainmakers—even if their skill, time and energy has helped land a client or signiﬁcantly expanded that relationship... They are not getting the credit for what they do,” she said, or opportunities to inherit big clients, which at some ﬁrms she said “tend to get handed down to men” (Smith 2014). Although ﬁrms may talk about the value of teamwork and collaboration, the authors of an Altman Weil study suggest that less than 10% of compensation is weighted to teamwork in practices, departments, and ofﬁces. “If the ‘talk’ is collaborative and encouraging of team behaviors [as we learned from Dilloff’s summary of ﬁrm restructuring], then clearly the ‘walk’ of compensation is not aligned with those aspirations” (Cotterman 2009). Because rainmaking (origination) remains the most highly valued activity in many ﬁrms, it may not be surprising that the authors of the 2012 NAWL survey concluded traditional paradigms for allocating revenue credit—rather than a more modern, shared credit approach, as has been adopted by some professional services ﬁrms—explains why origination credit is disproportionately awarded to men. Continued Job Segregation The disproportionate number of women in lower-status legal specialties and the task segregation that Kay and her colleagues documented continue (Hagan & Kay 1995, Wallace & Kay 2012). Leahey & Hunter’s (2012) analysis of the National Survey of Lawyers’ Career Satisfaction and the Chicago Lawyers Survey offers a more nuanced understanding of the positive relationship 382 Sterling· Reichman between specialty area prestige and earnings that may explain gender differences in the ability to leverage specialization for increased earnings. “Specializing is more beneﬁcial for lawyers working in less prestigious practice areas, allowing them to compensate for their disadvantaged position. Specializing is actually disadvantageous for lawyers working in high-prestige areas, suggesting that there may be penalties for double dipping: both specializing and working in a high-prestige practice area” (Leahey & Hunter 2012, p. 1122). Gender differences appear in the scope of work as well. Women are less likely to work on the big stuff, according to Silverstein’s (2014) analysis of legal spending. On average, men work on large matters and women on small matters; only 7% of larger matters are staffed with female-heavy teams, meaning more than 50% of the team members are women. Women make up more than 50% of “timekeepers” (lawyers who bill by the hour) on 81% of small cases (Silverstein 2014, p. 5). A recent ABA study of lawyer representation in civil cases in Illinois found that a man is three times more likely to be the lead counsel in a civil case than a woman. Only 24% of the lead counsels were women in the cases reviewed (Scharf & Leibenberg 2015). The gender pattern held up in analyses controlling for case type, size of practice, and whether or not the lead counsel represented a plaintiff or defendant. Although good assignments are the key to success, the distribution of assignments was, and still is, socially constructed in a world heavily inﬂuenced by gender stereotypes, for example, about a woman’s ability or willingness to work exceptional hours, despite her continuing hard work on a case within more or less traditional working hours. A national survey of attorneys who at some time worked in a law ﬁrm of 25 or more lawyers found that, among associates, “44% of women of color reported being passed over for desirable assignments compared to 39% of white women, 25% of men of color and 2% of white men” (Epner 2006, p. 21). Kay & Wallace (200
9, p. 423) link meaningful assignments to mentors who can “smooth the path to challenging and gratifying” work. They ﬁnd that men and women have qualitatively different mentoring experiences that suggest potentially signiﬁcant differences in the abilities of men and women to capitalize on their mentoring relationships (see also Epner 2006). Billing as Gendered Practice Billable hours are a driving force of compensation (Chambliss & Wilkins 2001; Fortney 2005; Kay & Hagan 1998; Lerman 2001; Rikleen 2013; Wald 2010a,b), and there is some conﬂicting evidence of gender differences in billing behaviors depending on whether the data are obtained from selfreports or analyses of legal spending. Social science research that tends to rely on self-reports of billable hours ﬁnds that men report billing more hours than women (Flom 2012, Fuchs Epstein et al. 1995, Parker & Ruschena 2011), although the differences are overall only approximately 50 hours annually. The NAWL survey found that men report more billable hours and women report more nonbillable hours (e.g., pro bono work). However, the survey concludes that these differences are not sufﬁcient to explain the full degree of women’s lower compensation. Law ﬁrm consultant Silverstein’s (2014) analysis of $3.4 billion of legal spending (actual billings) by their clients tells a different story. Silverstein found that female partners bill 24 minutes more per day than male partners, male and female associates bill about the same number of hours per day, and males and females bill about the same number of hours per matter; however, as noted earlier, the tasks they perform may not be the same. The perceptions that men work harder (see Lopez 2008), perhaps based on a reliance on self-reports and observations, are challenged by the data. Although women and men bill more or less the same numbers of hours, this same study of legal spending ﬁnds that men consistently bill for their time at higher rates per hour than women in comparable positions, irrespective of the status of the lawyer, the tier of the ﬁrm, geographic www.annualreviews.org • Overlooked and Undervalued 383 location, or experience (Silverstein 2014). Women’s billing rates are 10% lower on average at ﬁrms with over 1,000 lawyers and 12% lower at ﬁrms of 500 to 999 lawyers. Gender effects start early. In the largest ﬁrms, the average female associate has an hourly billing rate that is 93% of the rate of the average male (Silverstein 2014)—a difference that is strikingly consistent with the gap in earnings for early-career lawyers. Interestingly, whereas male lawyers are rewarded with higher billing rates for having more legal experience, in all but the smallest ﬁrms, female lawyers’ “hourly rates rise only moderately, if at all” (Silverstein 2014, p. 4). And, adding on to the economic impact of lower billing rates, women are more likely to have their bills adjusted than their male counterparts. Flom’s (2012) analysis of the seventh NAWL survey found that although women tended to report slightly lower billable hours than men, they reported more nonbillable hours, suggesting a difference in the presumed value of the different kinds of work that men and women do. Consistent with earlier work (Nelson 1988, Reichman & Sterling 2004), studies suggest that the work done to keep the trains running and the clients happy, however important, does not factor as signiﬁcantly as a metric of performance. Andrea Kramer, a partner at McDermott Will & Emery LLP who has served on the ﬁrm’s compensation and management committees, said “women lawyers also tend to be asked to take on administrative (e.g., serving on the recruitment committee or the diversity committee) and nonbillable housekeeping tasks that help law ﬁrms run smoothly but do little to boost individual pay or internal prestige” (Smith 2014). Performance Evaluations Although a signiﬁcant amount of social science scholarship examines the gender effect on performance evaluation (see, for example, Heilman 2012), few empirical studies focus speciﬁcally on law ﬁrm evaluation practices. Dinovitzer et al. (2009) suggest that understanding the black box of performance evaluations might be a signiﬁcant key to unlocking the persistence of income inequality in the profession. Williams & Richardson (2010, p. 651) persuasively suggest that the subjectivity “inevitable and appropriate in evaluation of performance and compensation, if unchecked, gives free reign to gender stereotyping.” Biernat et al.’s (2012) examination of the numeric and narrative evaluations of
268 junior attorneys working at one Wall Street law ﬁrm offers a unique empirical look at evaluation practices. They found that, overall, male attorneys were judged more favorably than female attorneys on quantitative measures. However, importantly, on key elements, there was no sex difference in the narrative comments. The numerical evaluations of women who were described in the narratives similarly to men as having high technical competence (and as partner material) equivalent to men were approximately a half a standard deviation lower than men. Their full analysis suggests that although both men and women are held to stereotypic expectations, women suffer more than men when those expectations are not met. Subjectivity is only a part of the problem. FRAMEWORKS FOR DISADVANTAGE How does the literature explain the persistent gap in wages, the disparity in promotions, and the continued scarcity of women lawyers in leadership positions? There has been a continual stream of scholarship focused on the need for diversity, but the frameworks adopted and explanations of the persistent problems have changed little over the last 7–10 years. Navigating the work-family dynamic has remained challenging for women, who are damned if they take time for their families (less committed) or damned if they ignore their families (unﬁt mother). This double bind combines with other stereotypes of appropriate roles for women to construct what Williams (2000) describes 384 Sterling· Reichman as the maternal wall. In the following sections, we look at the conventional frameworks for making sense of the persistent disadvantage of women. Gendered Organizations and the Lack of Fit An early and still inﬂuential framework analyzes law ﬁrms as “gendered organizations” (Acker 1990) that are structured and managed in ways that simply do not ﬁt with women’s experience. A gendered organization is not necessarily populated predominately by men. Rather, it is an organization deﬁned, conceptualized, and structured in ways that do not ﬁt women because it puts a premium on willingness to work “on demand,” free from domestic responsibilities, and values masculine characteristics (Britton 2000, Williams 2000). Sommerlad (2012), for example, argues that the bureaucratic structures of legal organizations are not gender neutral. They distort the labor market and disproportionately place women in inferior positions, where they receive inferior rewards, and are quite capable of defeating “equal opportunity initiatives.” The United States is in no way unique; studies in England and Wales (Sommerlad et al. 2010), as well as Australia (Thornton 2013, Thornton & Bagust 2007), reveal disparities in promotions and pay of solicitors and barristers linked to gendered structures and masculine culture (Bolton & Muzio 2007, 2008; Duff & Webley 2004; Sommerlad 2012, p. 2490; Sommerlad & Sanderson 1998; Webley & Duff 2007). Many, if not most, law ﬁrms assume an “ideal worker” an all-or-nothing employee (Bond et al. 2003, Hagan & Kay 2010, Percheski 2008, Stone 2007, Williams 2010) who is free to work very long hours. Similar to other highly educated professional workplaces ( Jacobs & Gerson 2004, Ridgeway 2011, Williams 2012), the legal workplace is characterized by its inﬂexible work schedules, excessive work hours, and masculine culture (Collier 2015; McGinley 2013; Rhode 2001; Sommerlad 2003, 2015). Lawyers with family care obligations, overwhelmingly women, are inconsistent with this ideal. Although the drawback of inﬂexible work schedules and excessive hours is salient to legal settings that claim an interest in diversity and inclusion, law ﬁrms remain reluctant to adopt/accommodate more ﬂexible schedules that work. Indeed, women leave traditional law practice, according to one legal industry commentator, because they are unwilling to buy this “archaic business model.” Despite the rhetoric of “family-friendly” law ﬁrms, women are penalized for taking parental leave or going part-time for a period after they have a child/children ( J. Sterling & G. Plickert, manuscript on ﬁle with authors). The objective or perceived lack of ﬁt can lead to undervaluing and overlooking women’s contributions. Experimental data conﬁrm ways that women’s work is devalued in comparison to men, particularly when they are assumed to be less of a “ﬁt” for the task at hand (Heilman & Okimoto 2007). Often, the responses to lack of ﬁt are programs that Rhode (2011, p. 1048) argues “focus on ﬁxing women, not the processes by which they are evaluated and the practices that sabotage their career development.” She goes on to describe all
too familiar panels at professional meetings, sometimes staffed entirely by men, that aim to strengthen, for example, women’s competencies in negotiation, communication, or client development. A systematic review of these panels over the last decade would most likely reveal, as some scholars suggest, that women have internalized the lack of ﬁt as their problem. They have bought into “inﬂexible work schedules” (Kay et al. 2013; Stone 2007, p. 29; Williams et al. 2006) and, in the case of some dual-career couples, defer to their husbands’ careers rather than ﬁnding a solution that supports the careers of both spouses. Lack of ﬁt, when combined with the cultural schema described below, creates a double bind for women lawyers (see the discussion in Rhode 2014). When women successfully adopt a more masculine proﬁle, they are thought to be abrasive and not feminine enough. When they attempt to integrate work and family, they are perceived as not committed. Both sides produce a stereotype of women as incompatible with the practice of law. Eventually, the stereotypes about commitment www.annualreviews.org • Overlooked and Undervalued 385 and leadership affect work assignments. If a woman is stereotyped in a negative manner, eventually she will receive less challenging assignments and be viewed as not standing out as a top performer in the ﬁrm (Rhode 2014), which reinforces the perception that law is a man’s world (Reichman & Sterling 2002). Implicit Bias and Cultural Superschema The term implicit bias (Kang 2009, 2014) has been used by sociolegal scholars as a framework for understanding both race and gender bias (Wald 2015). It occurs when cognitive processes are so embedded that most of the time individuals do not realize that they are making biased decisions in favor of an “in group” of people and against an “out group” (Sandgrund 2016). The bias can take several forms. Conﬁrmation bias occurs when we see only that which supports our beliefs. Attribution bias occurs when stereotypes are used to explain an individual’s behavior. Afﬁnity bias occurs when we favor those who look most like us. Two recent examples from Colorado courthouses (Sandgrund 2016, p. 49) demonstrate how implicit bias can lead to disadvantage for women lawyers and lawyers of color. A male and female lawyer appeared before a judge. The judge continuously complimented the male attorney about the quality of the work performed by his female colleague, who was, in fact, the chief of the division and the male attorney’s supervisor, a prospect the judge never even considered. In a second example, a female Hispanic lawyer entered the courthouse with her client. She was wearing a suit and carrying her briefcase and a book of statutes. Naturally, she joined the line for attorney check-in. When she got to the front of the line, she pointed to her name on the list of attorney names in front of the clerk and told the clerk her client was with her. Looking up at her for the ﬁrst time, the clerk asked, “Are you the interpreter?” The attorney repeated that she was the attorney and her client was with her. The clerk then asked, “Does your [tall, white, blue-eyed, blond male] client need an interpreter?” In these two cases, the judge and the clerk demonstrated their implicit biases. Neither recognized the female attorney as having power or privilege, but rather assumed she was subordinate to the male who accompanied her. Examples like these shed light on the continuing situation in which women are undervalued or overlooked. These two examples are reinforced by experimental research. Levinson & Young (2010) attempted to measure the effect of implicit gendered perceptions of careers. They gave law students an implicit association test and found that respondents were more likely to associate men as judges and women as paralegals. They also were more likely to associate women with home and family, rather than with the workplace. Reeves (2014) examined whether conﬁrmation bias inﬂuences performance evaluation. With help from law ﬁrm partners from different ﬁrms, she drafted a research memo on the issue of trade secrets in internet start-ups from a hypothetical third-year litigation associate who graduated from New York University. The drafters of the memo intentionally created 22 different errors, including spelling, grammar, substantive technical writing errors, and errors in analysis. The memo was sent electronically to 60 partners (men and women, Caucasians and persons of color). Half received the memo with a label saying the writer was a Caucasian male and the other half received the memo with a label saying that the writer was an African American male. Partners found signiﬁcantly more errors in the memos identiﬁed as being written by an African American than by a Caucasian lawyer. Reeves expects similar results from a comparison of male and
female writers. This research validates scholars’ ﬁeld observations that lawyers’ performances are fraught with unconscious or implicit biases that continue to disadvantage lawyers owing to long-held, culturally embedded stereotypes about race and gender. A similar strand of research explains gender disparity in the legal profession under the umbrella of cultural superschema or status expectations theory (Berger et al. 1977, Reichman & Sterling 386 Sterling· Reichman 2013, Ridgeway 2011, Wagner & Berger 2002). Cultural schemas are similar to stereotypes and implicit bias but are speciﬁcally derived from cultural sociology, rather than cognitive psychology. Here, the focus is on the cultural constructions of performance that attach to particular statuses, e.g., gender, so that some groups are viewed as more or less worthy than others (Correll & Benard 2006, Correll & Ridgeway 2003). Because these cultural schemas profoundly inﬂuence the assessment of competence, commitment, and performance, they also create barriers to the advancement of workers who are culturally deﬁned as less worthy (Correll & Benard 2006, Ridgeway & Fisk 2012, Ridgeway & Kricheli-Katz 2013, Ridgeway et al. 2009). Theorists in this tradition provide an answer to why inequality and discrimination persist even when employers do not exhibit prejudicial attitudes. Consistent with status expectations, employers will prefer one status group (perhaps unconsciously)—male over female lawyers in the present instance—because they perceive them as more competent and worthy. The evaluation of potential and actual performance becomes a self-fulﬁlling prophesy when certain status actors (male lawyers) are given more opportunities to participate and to demonstrate their competence in the workplace. When employers have higher performance expectations for men, they provide men with more opportunities to participate and excel in the workplace, and subsequently they are more likely to interpret men’s performances to be superior to those of women (Correll & Benard 2006). Status expectations theory also contributes to our understanding of double standards (Foschi 1989). Lower-status actors (women) receive stricter scrutiny of their task performance, and, regardless of their achievements, they are viewed as underperforming compared to high-status actors (Reichman & Sterling 2013, Ridgeway & Correll 2004). CONCLUSION: LAW FIRMS AS INEQUALITY REGIMES This review has addressed the progress of women in the private practice of law primarily during the last eight years, since the Annual Reviews article published by Kay & Gorman in 2008. In recent years, professional associations and consulting companies have enhanced our understanding of women lawyers’ persistent disadvantage by providing a peek into the mechanisms of compensation and advancement not previously observable to scholars. Our observation of this insider data suggests ways that cultural bias is mapped on to these mechanisms of compensation and advancement that make inequality a durable and intractable feature of contemporary law practice. Although few scholars of the legal profession have yet to take on the framework of relational inequality, Tomaskovic-Devey’s (2014, p. 53) conceptualization of organizations as “inequality regimes” may offer a way to integrate the two prevailing frameworks of gender disadvantage and map them on to an organizational process to develop a more robust understanding of women’s quite durable disadvantage. Organizations are inequality regimes when “organizational divisions of labor become the interactional bases for moral evaluation, exclusion from opportunities, and exploitation of effort and value” (Tomaskovic-Devey 2014, p. 51). In one analysis that uses this kind of framework, Dinovitzer & Hagan (2014, p. 950) found greater gender inequality in markets in which the categorical boundaries between male and female work are clearly deﬁned, and men consequently are able to hoard jobs and ﬁnancial resources, and less when the boundary between female and male work is more ﬂexible. Research that is able to integrate organizational mechanisms (e.g., exploitation, opportunity hoarding, claims making, and resource pooling) with interactional processes (categorical distinctions, status hierarchies, interaction orders) and broader institutional inﬂuences (history, culture, politics, and the like) is likely to go a long way to further our understanding of persistent disadvantage. Continued scholarly progress on this front will no doubt rely on joining data provided by interested third parties, i.e., law ﬁrm consulting ﬁrms and the like, with the theoretical and statistical modeling of social science. www.annualreviews.org • Overlooked and Undervalued 387 Practically, our review suggests that to address pay gaps more must be done to align rewards to contributions. Altering the reward structure to make it consistent with actual performance and contribution could lead to better morale among lawyers and lower turnover rates, and could begin to dismantle the remaining features of implicit gender bias in the practice of law. In a recent discussion of implicit
bias, Professor Wald (Sandgrund 2016) suggests that we need to make the implicit bias “explicit” to begin to combat persistent inequality in law. Implicit bias consists of “a positive or negative mental attitude towards a person, thing or group.” Individuals exhibit implicit bias unconsciously, and according to Wald the best way to overcome this bias is for individuals to begin to be aware of the assumptions they make and challenge assumptions that reﬂect, e.g., gender bias or racial bias. Wald argues that workers must receive repeated training to encourage a growing awareness of implicit bias. Research indicates that success can be achieved through training and then monitoring the workplace for evidence of the reemergence of implicit bias. In law practice, the ﬁrm should monitor the ﬂow of work assignments and mentoring by powerful partners to ensure more equitable distribution skills training to overcome implicit bias (Briscoe & Kellogg 2011). We agree. But it is not enough, as decades of writing that exposes implicit bias has not moved the needle. Our analysis of the mechanisms of compensation and advancement suggests that we need to go further to explore how bias interacts with organizational positions and larger social trends to produce value and worthiness within the practice of law. For example, rainmaking (what men do) has traditionally been valued more than client service (what women do), even absent objective indicators that ﬁnding clients has greater long-term beneﬁts than minding them. Since the economic downturn and a signiﬁcant shift in the organization of the practice of law, ﬁrms now recognize that both ﬁnding and minding are key to long-term success. Still, the reward structure continues to privilege rainmaking. Why is that? A better understanding of how “organizational divisions of labor become the interactional basis for moral evaluation, exclusion from opportunities, and exploitation of effort and value” (Tomaskovic-Devey 2014, p. 51) might address this important question. 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 ABA Comm. Women Prof. 2016. A Current Glance at Women in the Law. Chicago: Am. Bar Assoc. Acker J. 1990. Hierachies, jobs, bodies: a theory of gendered organizations. Gender Soc. 4:139–58 Berger J, Conner TL, Fisek MH. 1977. Status Characteristics and Social Interaction: An Expectation-States Approach. Cambridge, MA: Winthrop Beiner TM. 2008. Not all lawyers are equal: difﬁculties that plague women and women of color. Syracuse Law Rev. 58:317–34 Biernat M, Tocci M, Williams JC. 2012. The language of performance evaluations: gender-based shifts in content and consistency of judgment. Soc. Psychol. Personal. Sci. 3:186–92 Boigeol A. 2003. French women lawyers (avocates) and the “women’s cause” in the ﬁrst half of the twentieth century. Int. J. Leg. Prof. 10:193–207 Bolton SC, Muzio D. 2007. Can’t live with ‘em; can’t live without ‘em: gendered segmentation in the legal profession. Sociology 41:47–64 Bolton SC, Muzio D. 2008. The paradoxical processes of feminization in the professions: the case of established, aspiring and semi-professions. Work Employ. Soc. 22:281–99 Bond JT, Thompson C, Galinsky E, Prottas D. 2003. National Study of the Changing Workforce. New York: Fam. Work Inst. 388 Sterling· Reichman Briscoe F, Kellogg KC. 2011. The initial assignment effect local employer practices and positive career outcomes for work-family program users. Am. Sociol. Rev. 76:291–319 Britton DM. 2000. The epistemology of the gendered organization. Gender Soc. 14:418–34 Brockman J. 1994. Leaving the practice of law: the wherefores and the why. Alberta Law Rev. 32:116–80 Budig MJ, Hodges MJ. 2010. Who gets the daddy bonus? Markers of hegemonic masculinity and the impact of ﬁrst-time fatherhood on men’s earnings. Gend. Soc. 24:717–45 Campbell I, Charlesworth S. 2012. Salaried lawyers and billable hours: a new perspective from the sociology of work. Int. J. Leg. Prof. 19:89–122 Chambliss E, Wilkins DB. 2001. Promoting effective ethical infrastructure in large
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• Search keywords ANNUAL REVIEWS Further INTRODUCTION The rule of law is today so totally on every aid donor’s agenda that it has become an unavoidable clich´e of international organizations of every kind. More generally, praise for it has inﬁltrated contemporary political moralizing virtually unopposed. Rule of law might not do much to quicken the pulse, but it is prescribed for a vast array of other ailments. This is a relatively recent occurrence (Krygier 2014), which one would not have predicted as recently as the 1980s—I know; I didn’t. If I had known the stocks of rule of law would soar as they have, I would have printed money, instead of mere words, to invest in it. But I had no inkling I was talking up a goldmine. This has changed so dramatically that in virtually every introduction to the subject, the rule of law logo-clich´e has come to be joined by three supplementary clich´es (meta-clich´es as it were), ritual observations about clich´e number one. The ﬁrst is evidenced in the preceding paragraph: Everyone who writes about the rule of law begins by noting its unprecedented voguishness. Second is the observation that along with popularity has gone promiscuity. The rule of law has a huge array of suitors around the world, and it seems happy to hitch up with them all. That has in turn resulted in a third predictable adornment of every contemporary article on the subject: The rule of law now means so many different things to so many different people, it is so “essentially contested” (see Waldron 2002) and likely to remain so, that it is hard to say just what this rhetorical balloon is full of, or indeed where it might ﬂoat next. These clich´es off their chests, people continue to blow warm air into the concept. Theruleoflaw’srecentrisefromparochialandcontroversialpoliticalandlegalidealtouniversal international slogan has, then, given it a great boost in brand recognition, but its now mandatory rhetorical presence has rendered increasingly murky what the concept might mean, what the phenomenon might be, and why anyone should care. This ﬂuidity might even be part of its charm to those who deploy it (as suggested by Chesterman 2010, p. 2; Rajagopal 2008, p. 1359; Secur. Counc. Rep. 2011, p. 13), but it has a price. For the concept speaks to important and enduring issues of politics and law, not always apparent in current rule of law effusions. So this article begins in a deliberately unoriginal way, not with those effusions but with some intimations of old traditions of thought. It identiﬁes two venerable themes, related to each other as vexed problem and putative solution, namely, arbitrary exercise of power and its institutionalized tempering. These date from well before the rule of law became an economist’s and aid worker’s clich´e. They might usefully inform present conversations, which instead often proceed in ignorance of them. The article then moves to some past experiences with and without the rule of law understood this way. It then goes normative, to suggest that the ideal of the rule of law is a thoroughly good thing, even if not every invocation of it is appealing. The penultimate section raises some normative and sociological criticisms of current discussions, to do with their inadequate treatment of ideals and of contexts. The article concludes with two suggestions about future directions: one a call for a social science that does not exist, and the other a timid suggestion that it might be time to go beyond the rule of law, to pursue the ideals that led us to it. “THE PURSUIT OF INTIMATIONS” (OAKESHOTT 1991, PP. 66–69) The English phrase “the Rule of Law” was made famous and inﬂuential by the constitutionalist Albert Venn Dicey at the end of the nineteenth century, to capture “a trait of national character which is as noticeable as it is hard to portray” (Dicey 1982, p. 109). There has been some discussion about whether he coined the term for this purpose or inherited it. Either way, focusing on the “literal sense” (Raz 1979, p. 213) of the phrase will not take you far. That path, as Waldron (2012, p. 8) and Sempill (2016, pp. 338–40) have noted, is unhelpful and liable to mislead. As 200 Krygier Sempill points out, focusing on the speciﬁc form of words can confuse, both by excluding cognate conceptions just because they are expressed in different terms and by suggesting connections between unrelated ideas that happen to have found shelter under
the same verbal umbrella. Whoever thought to put these four words together (with—in English—their key, prefatory, deﬁnite article, “the” not just “a” rule of law) to designate a normative ideal rather than simply a species of legal norm did not invent the idea, nor the concerns it addresses. So parsing the speciﬁc words and phrase Dicey popularized will not on its own reveal the problematic of concerns, threats, and responses to which discourses about the rule of law have long been addressed, and for which this phrase and others like it have come to be shorthand indicators. Whether avant la lettre or not, concerns with these issues are millennia old, at least in Western legal traditions—part of History with a capital H. Conversely, as Sempill also argues, the presence of the lettre does not guarantee identity of ideas. Thus, although the phrase has remained the same through its recent renaissance and has never been more widespread than it is today, its conceptual referents and the contexts in which and the purposes for which it has been invoked have changed frequently and in many ways surprisingly. If following the words will not do it, how about following the money? Thus Desai has registered but rejected the numerous complaints from frustrated toilers in the “Rule of Law Reform Field,” that it might not exist, given the unclarity and contestation that surround its content and the lack of success of efforts to cultivate it. He rejects any attempt to ground the meaning of the term in any essential features or any disciplinary or conceptual domain. However, he insists that there is a ﬁeld after all, and we can discern its subject by looking at what those now in the ﬁeld think it includes. And that is to be ascertained by looking at hiring criteria used by rule of law–promoting agencies (as to which, see O’Connor 2015). As Desai (2014, p. 45) puts it, “I rely on the self-articulation of actors as rule of law professionals—thereby performatively constituting a rule of law ﬁeld—and the institutions that give this self-articulation material weight, from donors to journals to job postings.” Desai’s choice might suggest that this signpost of a very old range of concerns, which have been treated seriously by serious thinkers for serious reasons for millennia, was just a placeholder waiting for the World Bank and its equivalents to get their act together and stipulate what it means. But why think that? Better to follow Sen’s (2000, pp. 8–9) comments (at the World Bank) about another, related and also popular, “ﬁeld”—development: It is, of course, true that at one level development is a matter of deﬁnition, and some people seem to insist that they are free to deﬁne any concept in any way they like... However, it so happens that linguistic usage over a long time has given a certain content to the idea of development, and it is not possible to deﬁne development independently of those established associations. Well, actually it is possible to deﬁne development independently of its established associations. Reappropriations of existing terms without attention to such associations go on all the time, with development as with the rule of law, which is precisely why it was important for Sen to point out that it was a bad idea. And when such a term appears in new renderings that drop off or cut across elements important in the old, one should be on the alert. Something signiﬁcant might be being given up, which a continuity of terms renders invisible. Moreover, criticisms of recent incarnations might well be sound about them, without that necessarily being, as it is often taken to be, destructive of or even relevant to other conceptions that share the same name. So it was in the last century with Marxist critiques of the rule of law as “bourgeois ideology,”1 which it often 1Cf. Collins (1982, p. 1): “The principal aim of Marxist jurisprudence is to criticize the centrepiece of liberal political philosophy, the ideal called the Rule of Law.” www.annualreviews.org • The Rule of Law 201 is, but that is not the whole story (at least Aristotle would not have thought so); so it appears to be becoming today when it is cast, or cast out, as just a prop in some neoliberal project. In both cases there was and is more to be said. No one, then, can dictate a uniquely correct meaning for the rule of law, or any uncontestable stipulation of the values it serves. It is too late for that, and in any event it would not be enough. Too late because the term has become too protean, the purposes for which it is invoked too many and varied, the freight carried by this short phrase too distant from anything that could be derived from dictionary deﬁn
itions of its component words. Not enough, because the phrase is part of old and ongoing moral and political arguments about fundamental matters of political organization, concerns, and ideals, much afﬁrmed and much contested. These include enduring common themes but also axes of argument and disputation that have pervaded discourse on the rule of law over long periods. So, although it would not be helpful, even if we could, to try to excavate some universally acceptable lowest common denominator, it might help to recall concerns that have motivated the vocabularies we have inherited; what was at stake for those who shared or debated those concerns, what were the ideals that they believed mattered and why, is there anything we can learn from them even though we live in a many ways different world, and do they still or again deserve support? This is not to consign sensible discussion of the rule of law to historians. Rather, it is a caution against the kind of willed or unwilled ignorance, so common among contemporary activists and social scientists, who often write as though it all starts with them. Historians might recover original intentions and contexts, often likely to be very far, perhaps unbridgeably far, from our own. But past thoughts are not all package deals to be taken or left just as they were in the minds of those who ﬁrst thought them. There are other ways to draw on them. One such is motivated less by a concern to reconstruct past thoughts in and with their immediately animating contexts than to pursue intimations of intellectual dispositions, sensibilities, and traditions of thought and practice that have left signiﬁcant residues in our culture and seem still able to offer valuable clues about things that matter. If that looks at times like cherry-picking, well, if they are tasty that is what you do with cherries. MacIntyre (1988, p. 12) has argued that “a tradition is an argument extended through time,” and thus “traditions, when vital, embody continuities of conﬂict.... A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition. Within a tradition the pursuit of goods extends through generations, sometimes through many generations” (MacIntyre 1985, p. 222). All this has been true of rule of law traditions, and not for a short time. So although there is no single understanding of the rule of law that captures it all, there are constellations of themes, preoccupations, and tendencies, some long-lived. The stakes can be high, and it makes sense to draw on traditions of thinking about how to play well for them. Even if it did not make sense, by the way, we would continue to echo past thoughts and the traditions that bear them, consciously and unconsciously, reﬂectively and otherwise, intelligently and stupidly, because as Shils (1981, p. 43) has observed, “every human action and belief has a career behind it.” Better to try to make some acquaintance with that career, be reminded that some problems recur, avoid pitfalls it has exposed or fallen into, and develop novel thoughts in the light of all the above, rather than be condemned, often by hubris [a vice many in these traditions condemned from the beginning (North 1973)], to ignore its moments of insight and achievement or remake its mistakes. INTIMATIONS IN THOUGHT The rule of law has typically been advocated as (part of ) a solution to a problem or class of problems. Though contemporary rule of law writers and reformers too often start the other way 202 Krygier around (Kleinfeld 2006, Krygier 2011), it is important to start with the problem, rather than the purported solution, with the end rather than the means. The Problem: Arbitrary Power Many problems have been identiﬁed for the rule of law to solve, these days too many. However, one that has generated reﬂection over centuries has to do with long familiar perversions and pathologies of power. How might its exercise be channeled away from recurrent objectionable forms and tendencies? How might it be rendered at least safe and then, more positively, helpful for those subject to it, rather than loom as a perennial source of threat and fear? So the focus is on power and how it is exercised. That is the place to start. And what makes it problematic is not its mere existence but the potential for its abuse. Power is necessary for all sorts of good things. In any event the existence of power and disparities of power cannot be eliminated, and rule of law traditions (unlike anarchist ones) do not seek to do so. They do seek, though, to temper the ways power is liable to be exercised by those with more over those with less. What forms power takes is an important question, but not one I deal with here (see Mann 198
6/1993; Poggi 2001). The tradition focused on state power, but I argue that it can be generalized. Rule of law traditions have particularly focused on arbitrary exercise of power, often using precisely that word, as the antihero in the rule of law story. A common thought has been that left to their own devices wielders of power cannot be relied on to avoid exercising it arbitrarily and will constantly face temptations and in many circumstances strong incentives to act in their own, rather than the public’s, interest (however that is deﬁned). Some rulers might confound such pessimistic expectations, but we should not have to rely on that. At least we need to hedge our bets. For even were power-wielders’ intentions beneﬁcently public-oriented, the possibility of arbitrary exercise of power would still be a perennial concern. All the more because (though not only because), as Lord Acton was not the ﬁrst to notice, corruption awaits. If we are left merely to the “will” or “pleasure” or “caprice” of the power-holder (to use traditional terms of apprehension), arbitrariness will be a constant possibility, and if so a constant worry. That is because, to put brieﬂy what many writers have argued in many places, even the potential of its arbitrary exercise diminishes subjects’ freedom (Pettit 1997); causes their lives to be fearful (Shklar 1998); denies them respect, dignity (Fuller 1969; Waldron 2011a,b), and moral equality (Gowder 2016, Sempill 2016); and destroys possibilities of fruitful cooperation among citizens and between citizens and states (Hayek 1960). So it is NOT A GOOD THING! What might be done about it? There are traditions of thought about such matters. Many of them put the rule of law at the center of their reﬂections. Arbitrariness is notoriously undertheorized (see Endicott 2014, Gowder 2016, Sempill 2016), and I do not deliver conceptual purity here. I just mention three sources and sorts; there may be others. Often they are not distinguished. I think they are three different ways in which citizens are made vulnerable to power that can be exercised without the requirement that their legitimate interests, expectations, and opinions be taken into account—three species of a distasteful genus. So exercise of power that is arbitrary in any one or more of these senses should be treated with great suspicion; better still, the possibility of such exercise of power should be reliably curtailed, and the paths toward nonarbitrary exercise of power opened and smoothed. One form is found where power-wielders are not subject to routine, regular control or limit, or accountability to anything other than their own will or pleasure. This sense is nicely captured in the Indian Supreme Court’s interpretation of a constitutional provision guaranteeing equality before the law. This provision, the Court held, implied that natural resources could not be handed www.annualreviews.org • The Rule of Law 203 out “according to the sweet will and whims of the political entities and/or ofﬁcers of the State.”2 This might well have been the original notion of the term: Exercise of power is arbitrary to the extent that it “is subject just to the arbitrium, the decision or judgement of the agent; the agent was in a position to choose it or not choose it, at their pleasure” (Pettit 1997, p. 55). In a second sense, often but not necessarily allied with the ﬁrst, power is exercised arbitrarily when those it affects cannot know, predict, understand, or comply with the ways power comes to be wielded. That is the form typically taken up in the various “laundry lists” (Waldron 2011b) of formal characteristics of legality or the rule of law—clear, prospective, public, etc.—so beloved by contemporary analytic philosophers of law (see Fuller 1969, Raz 1979, Walker 1988), and it is true that if one cannot know how power is to be exercised, because its grounds are, for instance, secret, retroactive, too variable to know, vague beyond speciﬁcation, impossible to perform, or exercised in ways unrelated to the rules that purport to govern them, then one has been treated arbitrarily. The common law tradition from the medieval period to the eighteenth century laid more emphasis on avoiding the ﬁrst sort of arbitrariness (McIlwain 1947, Palombella 2012); it was less concerned with the law’s clarity than with its superiority, even to the king (see Reid 1977, 2004). Post–eighteenth century legislative developments in England (Reid 2004), and the contemporaneous development of the concept of the Rechtsstaat (Krygier
2015) in Europe, particularly in the second half of the nineteenth century, put more emphasis on the second. Until the twentieth-century advent of written constitutions in Europe, the Rechtsstaat did not know a higher law (Palombella 2010, 2012), and from the eighteenth century the English rejected it (though they, Dicey among them, called on “conventions” to do what law was now thought not to do). Power that is unlimited and power that is unruly are not the same, but for those at the receiving end both are arbitrary. These are not the only ways the powerful can treat their subjects/objects arbitrarily. A third way would be the exercise of power, whether or not limited and/or predictable, where there is no space or means made available for its targets to be heard, to question, to inform, or to affect the exercise of power over them and no requirement that their voices and interests be taken into account in the exercise of power. In recent writings, Waldron (2011b, p. 19) has stressed the importance of this dimension and of procedural elements of law, and strong traditions in law, that require attention to such concerns, that do not allow those subject to power to be treated “like a rabid animal or a dilapidated house.” Waldron concentrates on how litigants are treated in courts, but the point is larger than that. Different thinkers have been more or less concerned with one or another of the above forms; often they have been elided. They can be distinguished, however, at least analytically, and what one does about each might need to be different. Each deserves to be opposed. A regime is not home free because it scores well (low) on one but not another dimension of arbitrariness. It should do well on all three. There are all sorts of beneﬁts that might accrue to a regime that applies stable and understandable rules, for example, but if rulers are free to act purely at their “sweet will and whim,” even if they choose not to, and even more if the rules shut those affected out from consideration, subjects—more accurately objects (Krygier 2002)—of power are vulnerable to its arbitrary exercise. Commitment to tempering power is not an absolute, all-or-nothing affair, in at least two senses. First, it is more urgent as arbitrariness is more gross. If power-holders could do whatever they liked; if there were no way that subjects could know the law; and if no account whatever were taken of the existence, voice, or interests of those affected by power, this, of course, would be abominable. But arbitrariness comes in degrees. For some way along the scales, less arbitrariness in any of these 2Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh, quoted in Endicott 2014, p. 1. 204 Krygier senses is better. But there are vices that go with constraints so rigid that those in power can exercise no initiative, ﬂexibility, judgment, wisdom, or attention to substance or particulars; indeed such constraints may generate arbitrariness of their own. These are very old themes and concerns (see Mansﬁeld 1985; Selznick 1992, p. 437). It is not obvious, however, that an admirable hostility to arbitrariness need slide, as Dicey’s did, by verbal elision rather than powerful reasoning, into hostility to any exercise of discretion. Thus Dicey, and many opponents of the welfare state after him (see Hayek 1994), runs together several possibilities as a common antithesis to the rule of law, when he asserts that “the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint” (Dicey 1982, p. 110). We are not compelled to follow him there. Width and discretion might indeed be necessary for ﬂexibility in many circumstances of governance, and for many legitimate ends, including avoiding arbitrariness in my third sense, of ignoring the speciﬁc interests and views of persons subject to power. If wide and discretionary powers can be effectively limited, framed, and subject to review, must one assume that they will involve arbitrariness, which is the real foe of the rule of law? Eliding them all, however, does make it easier to oppose active government. There may be reasons to do that, but they do not follow automatically from a commitment to the rule of law. They will need to be separately argued. Where the boundaries lie between discretions that can and should be permitted and those that should be curbed, and how they should be marked, are never easy or uncontested matters to decide, but the former should not be assumed necessarily to be the start of an inex
orable and slippery slope to the latter. Secondly, the rule of law is never the only thing we want, and so its purity might well need to be balanced against other goals that we deem valuable (see Raz 1979, pp. 228–29). Moreover, when the exercise of power is in large measure routinely and reliably tempered, different values might be contemplated more safely and helpfully than otherwise (see Selznick 1992, p. 464). It is a strong consideration always to be borne in mind, that power should be prevented from being arbitrary. It should not be thought of as an automatic conversation stopper in every exercise of power, in every time or circumstance or discussion of social goods and policy choices. The Solution: Tempering Power If arbitrary power is a problem, many have looked to legal tempering of power as a key part of the solution. On such views, law should be involved in the exercise of power, not merely as vehicle or instrument but as channel, limit, constraint, and tempering agent. The point has most often been cast in negative terms—as a need for a curb, limit, or constraint (Saj´o 1999)—and that concern is rarely misplaced. However, the point of the rule of law can also be understood to include a more positive dimension as well. The object is to temper or moderate the exercise of power (Krygier 2016a), to avoid its arbitrary use, not necessarily to weaken or shackle it. The rule of law is recommended to prevent the ever-present dangers of arbitrariness, but also, through its “enabling constraints” (Holmes 1995, p. xi), to allow positive uses of power, and social responses to power, to ﬂourish, which might depend on its salutary exercise but would never bloom or would quickly wilt in the face of arbitrariness. Such concerns are already implicit in Aristotle’s distinctions between “true forms” of government, concerned with “the common interest,” and those that “regard only the interest of the rulers.” The latter “are all defective and perverted forms... for they are despotic, whereas a state is a community of freemen” (Aristotle 1988, §1279a, 19–22). A central difference between true and perverted forms lies in the role of law: “The rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law” (Aristotle 1988, §1287a, 18–21). One www.annualreviews.org • The Rule of Law 205 reason for such rule of law is that it helps to prevent the overreaching ( pleonexia) that Aristotle feared and to engender that virtue exalted in Greek drama and Greek philosophy alike: temperance (s¯ophr¯osyn¯e, glossed by Cicero and Roman writers after him as temperantia) in the exercise of power (North 1973). Too many commentators (e.g., Loughlin 2010, p. 312) think they need to remind us that it is impossible to have the rule of law without the rule of men. It is unlikely Aristotle would have been surprised to hear it, or would have demurred (see Frank 2005, chapter 4). Rather, these words might be thought of as seminal reﬂections on the importance of institutionalizing the exercise of power, so as to temper what powerful individuals might otherwise do, both to avoid excesses feared to ﬂow from untempered power and to reap the beneﬁts of its temperate exercise. Such institutionalization is meant to help generate, Aristotle and many contemporaries and successors argued, positive political virtues, such as “moderation, the golden mean, mixed government, and temperance” (Craiutu 2012, p. 20), and is contrasted with unqualiﬁed power’s predictable perversions, central among them arbitrariness and what over millennia has been condemned as tyranny. These themes recur through the centuries, for example, in Greek reﬂections on temperance, moderation, and lack of excess and their links with thoughtful self-knowledge and wisdom; in Aristotle’s expansion of the scope of such virtues from personal/ethical to institutional/political; in later reﬂections on and embroideries of Aristotle, such as Roman discussions of Imperium legum (Sellers 2014, p. 14); in Marsilius of Padua’s invocation of “the Philosopher” to distinguish between “two generic kinds of princely part or principate, the one well-tempered and the other ﬂawed” (Marsilius 2005, p. 40); and in many other writings. In France,
to pick one high point, Montesquieu (1992) above all puts at the center of The Spirit of the Laws the distinction between “moderate” forms of government, which he applauds, and “immoderate” forms, which he loathes. Thus, although both the monarch and despot rule alone, the former does so “by ﬁxed and established laws,” whereas the latter, who governs “without law and without rule, draws everything along by his will and his caprices” (Montesquieu 1992, p. 10). Whoever wielded power, Montesquieu’s overriding question was whether they did so moderately or not, and one of the keys to moderation was the rule of law. Moderation of power was not, he insisted, an easy task. Indeed, he notes that, despite the horrors of despotism and the attractions of moderation, the world has seen many more despotic governments than well-ordered moderate ones. He laments that but ﬁnds it unsurprising, because a moderate government is a much more complicated achievement that involves difﬁcult and complex balancing, tempering, and regulating (Montesquieu 1992, p. 63). The language with which he makes the contrast is suggestive, for contrary to what many say about the rule of law, he clearly saw the aim of moderating or tempering power as not to shackle government but to channel its activities to what it needs to do, and in the process make it able to do such things better, and not do things it should not do. Craiutu (2012, p. 39) notes that “Montesquieu was favourably disposed toward moderate monarchy ´a l’anglaise, because in this regime laws reign rather than the will of individuals (in the Aristotelian sense) and the authority of the sovereign is effectively limited by intermediary powers and fundamental laws.” Indeed he famously and wrongly attributed a tripartite institutional separation of powers to the English, thus inﬂuencing the Americans to institutionalize it. But he did not get everything wrong. Rule of law traditions have been extraordinarily signiﬁcant in England, if not, as Dicey fantasized, there alone. Of course, such developments can easily be bowdlerized, as anyone will recognize who recently endured the year of encomia in England and its former colonies on the eight-hundredth anniversary of Magna Carta (see Krygier 2016b), which has sanctiﬁed this at-the-time ineffective, interest-driven deal between king, church, and barons. And yet, although it might not have been 206 Krygier a general thought among the barons who negotiated the particular deal in the charter, many of its chapters exempliﬁed a general principle that was already part of arguments found in European, among them English, legal traditions (Berman 1983), and continued to be a matter of argument and institutional experimentation. The line was not straight, the arguments were often lost, power and interest trumped and co-opted them often enough, and there were opposing arguments. However, there were victories, many of them coming to be institutionalized in legal practices and expectations of them. And then there was the English seventeenth-century apotheosis (with copious acknowledgments to Aristotle and Livy) of Magna Carta, the “ancient constitution” (see Pocock 1987), and “an empire of laws, and not of men” (Harrington 1771, p. 110). However much myth-making was involved in the appropriations of former documents and events, there is no doubt that that century drew on real precedents and then spawned its own legacies, central among them powerful statements, actions, and ultimately traditions professedly hostile to arbitrary power. Thus, central to Reid’s (2004) account of the rule of law tradition in England is the antinomy repeated over centuries between rule of law and arbitrary power. As he writes of seventeenth-century demands, As “arbitrary” was the opposite of “liberty,” and the opposite of “liberty” was also “unlimited power” or “tyranny,” it followed that another antonym of “arbitrary” was “law” or “rule of law.” Any check on unlimited power moved government away from arbitrariness and closer to constitutional liberty, and English experience had uncovered no other check than the rule of law. (Reid 1977, p. 463) Of course, that century saw some of the most powerful defenses of absolutism, ﬁrst among them the timeless texts of Hobbes and also Filmer’s Patriarcha, inﬂuential at the time, not to mention the at last eloquent but unfortunate defenses of Charles I. But ultimately they lost, Charles most of all. Among those on the winning side was John Locke (196
0, II, art. 137, p. 405, emphasis in original), with his condemnation of Absolute Arbitrary Power, or Governing without settled standing Laws, [which] can neither of them consist with the ends of Society and Government, which Men would not quit the freedom of the state of Nature for, and tie themselves up under, were it not to preserve their Lives, Liberties and Fortunes; and by Stated Rules of Right and Property to secure their Peace and Quiet. To think that men would (should) do otherwise would be to judge them “so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions” (Locke 1960, II, art. 93, p. 372). The American colonists inherited these traditions, valued them, and mythologized them in turn. They felt betrayed by their British rulers for very British reasons (see Reid 1977, p. 461). Indeed, the last great defense of that old English conception, Reid argues, conscious of the irony, was the American Revolution against the British Crown. In the eighteenth century, the Americans insisted that no government was above the law, but the English had moved beyond them to regard the lawmaker as legally sovereign, outstripping though (and perhaps thus) losing its aboutto-be-former colony. The Americans still defended—and in their written constitution made an institutional innovation to resurrect—an older understanding of law and the rule of law (Reid 2004, p. 75). These have not been the only themes and streams in Western traditions of thought, still less of political practice, and often they were submerged or even anathematized. They have mixed choppily with other streams, and their signiﬁcance is often exaggerated, but by comparison with www.annualreviews.org • The Rule of Law 207 many political orders, there has been something signiﬁcant there to exaggerate. And where, as often, practice did or was thought to betray the ideals, there has developed a rich critical language in which to condemn arbitrary exercise of power. Such views are not ancient history. Thus, two recent and exemplary works of sociolegal scholarship (Cheesman 2015a, Massoud 2013) have shown, of Myanmar and Sudan respectively, the deliberate and systematic use of law to serve ends contradictory to those of the rule of law. At the time of writing, an interesting experiment to change these realities, often cast explicitly under the rubric of the rule of law (both in English and in Burmese; Cheesman 2015b), has begun in Myanmar. It is too soon to predict its fate. In yet other polities, e.g., contemporary Poland, Hungary, and South Africa, rule of law values and practices exist and have been to some extent institutionalized, but they appear thinly so, and threatened (on Hungary, see Boz´oki 2012; on South Africa, see Issacharoff 2013; on Poland, see Sadurski 2016). Even where such values and practices are long-embedded, they can come under huge pressures in times of real or purported crisis, such as the War on Terror (see Holmes 2009) or the contemporary treatment of refugees in many parts of the world. Such a language, still less instantiation of the ideal it recommends, has not always or everywhere been available. A tradition in which the rule of law has been an animating value shared, always unevenly but still signiﬁcantly, among initiates, lay people, and institutions is a good one to have. It is not universal. Indeed it is rare (see Popitz in Poggi 2014, p. 48). For distinctive and strong rule of law traditions are not natural facts, in some times and places not facts at all. In the Russian imperial state tradition, for example, law was not a central cultural symbol, and to the extent that it counted, it did so as an arm of central tsarist power (see Pipes 1977), over which there stood no mortal superior. The notion that power should be framed and restrained by law; that law should have a power-tempering role, both horizontally among members of the society and vertically between political power-holders and their subjects; or that it should do anything but transmit central orders, was for long periods unknown, then heretical, more commonly alien, and late and weak in developing. Here law was viewed primarily as properly a subordinate—often indeed servile—branch of political, administrative, and at times theocratic power. This has not altogether changed. INTIMATIONS IN PRACTICE The rule of law has long been lauded in countries where it is claimed already to exist, and it has been advocated both from within countries said to lack it and by exporters/missionaries keen to
make it available to the world. I begin by looking at its invocations “at home” and then move abroad. At Home Associations between tempering of power, hostility to arbitrariness in its exercise, and the rule of law have been signiﬁcant themes in enduring and recurring dispositions and traditions, for long periods at least in the Western legal traditions with which I am familiar. Moreover, in several of the societies where these traditions exist, measures to restrain arbitrariness have permeated practices of law and more generally the exercise of power, as well as expectations as to how power will be exercised. They matter and are thought to matter in the everyday workings of a society. That is all good, even if one might often hope it could be better, and even if the rhetorical and other uses to which people might put such a salutary achievement are not always good at all (see Krygier 2006). 208 Krygier A separate point is that even where power-wielders ignore or reject or ﬂout or mock the ideal directly or through hypocrisy, there are concepts, values, and ideals available, and so too a language in which they might be condemned. This critical potential of the concept and the tradition is key but often forgotten, both by those who celebrate the rule of law as a panacea in the possession of some rather than others and also often by those critical of boosterism of this sort. The rule of law is no panacea, though it might well be a source of health. It is a practical ideal of great worth. As such, it should be invoked when the values it endorses are ﬂouted as much as or more than when they are served. Where all that is available, it is only partly traceable to the activities of contemporary actors or to particular rules and institutions, though these matter too. It is buttressed, made to endure, and made part of the legal culture by less obvious but no less important, indeed indispensable, legal traditions that underpin, institutionalize, and transmit the values and practices (many unwritten) that accompany them. There is nothing Whiggish in this claim, no historical script, no universal happy development. There are just some dispositions, of varying strength and prominence, embedded in and transmitted by traditions of some signiﬁcance. It would be nice if they did well, but nothing assures it, and they have often been radically, even tragically, maligned, rejected, ignored, or overwhelmed. Residents of modern Europe—indeed anyone who was alive in the twentieth century—should not need any reminders. Of course, we know from innumerable radical and Marxist critiques, from classic works in the sociology of law, and from common experience that even in the birthplaces of rule of law rhetoric, commonly “the haves come out ahead” (Galanter 2014). It is not clear that on its own the rule of law in the sense sketched here can ensure against all such inequities, because they depend on many things other than the ways power is exercised. They will often be a sign of arbitrary distinctions and uses of power, and so deserving of critique in terms of rule of law values, and arguably on other terms as well. But pursuit of ideals of social egalitarianism has other reasons and will need to supplement the tempering of power in other ways. Although that shows that tempering power is not all one should demand of a political order, it does nothing to show such tempering is not precious in its own right or, as the Greeks insisted, that it might not be a precondition for the safe and thoughtful (Waldron 2011a) pursuit of other worthy ends. Necessary conditions for some good ends are rarely sufﬁcient for all. But if they are real conditions for real goods, that should be recognized, even as one heeds their limitations and hopes for more. And thus, notwithstanding the storm of controversy he caused when he ﬁrst made the claim, I side with Thompson’s (1975, p. 266) impassioned insistence, at the end of a profoundly hostile critique of English eighteenth-century criminal law as ruling class law, that still there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath the law... [but] the rule of law itself, the imposing of effective inhibitions upon power and the defense of the citizen from power’s all-intrusive claims, seems to me an unqualiﬁed human good. As one of the most distinguished Marxist historians of his generation, Thompson did not need to be told that even where the rule of law was strong, law might be of use to ruling classes. Still he insisted that although this study has shown that for many of England’s governing ´elite the rules of law were a nuisance, to be manipulated and bent in what ways they could... I do not conclude from this that
the rule of law itself was humbug. On the contrary... the notion of the regulation and reconciliation of conﬂicts www.annualreviews.org • The Rule of Law 209 through the rule of law—and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal—seems to me a cultural achievement of universal signiﬁcance. (Thompson 1975, p. 266) Abroad Of course, rulers from the homes of these rule of law traditions did not always stay home. And thus imperialism, which came in many forms to many places, rested upon dramatic inequities of power and was often (though not always) quite untempered in its violence, exploitation, condescension, and humiliation of colonized populations. In some empires, prominently the British Empire, the whole combination was imbued with a certainty of mission, often proclaimed as the delivery of civilizational blessings, among them the rule of law, to benighted savages. Law was typically a central part of the colonists’ institutional and spiritual baggage (see Benton 2002, McLaren 2015, Pagden 1995). What does that tell us about the rule of law? Critics of colonial legalism have often claimed that it shows that the rule of law is merely an instrument of colonial exploitation, or an ideological cover and ﬁg leaf for the same (Guha 1998, Mattei & Nader 2008). However, some conceptual speciﬁcation might be useful here. If the concept is stretched, as it sometimes is, to encompass any use of law whatsoever, or rhetorical whitewash or ideological justiﬁcation that invokes the rule of law, then there is a lot to condemn (Krygier 2006). Because law, rhetoric, and ideology can be found in many places, some not at all attractive, it becomes easy to denounce the rule of law for a lot of things. Easy but empty. For if one attends to the traditions I have recalled, that conceptual looseness drains the rule of law, understood as a practical and therefore also critical normative ideal, of speciﬁc content. Just as People’s Democracy should not be confused with democracy, so what colonists called the rule of law was often not that at all, whatever they said. The ideal of the rule of law is always fundamentally compromised in colonial settings, if only because the ideal demands that persons be treated without arbitrary discriminations, and that is one thing colonists do not do. Does that make invocation of the rule of law in such settings necessarily a fraud or ideological cover for nefarious activities? Often simply yes, but not always and not only. Often the picture was more plural and interactive (Benton 2002) than that. And a further question remains: Does such invocation discredit the ideal? That ideal demands that the exercise of power be tempered, so as to lessen the chances of its arbitrary exercise. It is not enough that the ideal is invoked, or that those who do so also impose law. The question has to do with whether the ideal is actually in play and approached in the society in question, not whether the term is used. In terms of this discussion, that question becomes whether there were effective efforts to institutionalize ways of tempering power to avoid arbitrariness in at least the three senses discussed above. One source of complication is that nonarbitrary power can serve many different and competing interests, including those of rulers and ruled at the same time. Take, for example, the reduction of arbitrariness in the second sense discussed above: incalculability. As Weber (1968, pp. 846–48) understood so well, regularity and predictability can serve many different constituencies: rulers who want to know and control what is happening in the peripheries; ofﬁcials, so they can be employed throughout the realm; economic actors, so they can rely on predictable frameworks for “sober bourgeois capitalist” investment; or rights advocates, so that power is less able to take them by surprise. Even where colonial rule turns out to be nonarbitrary in this sense, however, the extent of arbitrariness remaining in colonial settings depends in signiﬁcant part on the two other dimensions of prevention of arbitrariness as well: control over power and provision for presence, voice, and attention to the interests of those to whom power is applied. On these scores, 210 Krygier particularly the second, colonialism typically fares poorly (see Washbrook 1999). And though an ex-colony, Singapore, to take a fascinating and complex example, fares well against arbitrariness in sense 2, and in some (primarily economic) domains in sense 3, it is weak (because strong) in sense 1, and in other domains (e.g., political) in sense 3. These bifurcations lead Rajah (2012, p
. 2) to speak of “a Singapore paradox: A regime that has systematically undercut ‘rule of law’ freedoms has managed to be proclaimed as a rule of law state.” That is not a simple paradox, still less a tautology, but a signal of the complexity—sometimes morally fraught complexity—of our subject. Of course and always, in matters of ideals one should never discount hypocrisy, the homage of vice to virtue. When some beneﬁt by taking things from others, this will rarely be far from the surface. Thus, where (colonial and other) rulers prate about the rule of law, as today and oftentimes they have, while exercising arbitrary power, we are dealing with hypocritical abuse of the rhetoric of the rule of law (see Krygier 2006), not the thing itself. Hurrah terms, such as rule of law, democracy, liberty, and equality, lend themselves to such abuse, precisely because they are thought to be good things to have, and so rulers tend to boast that they have them. In such circumstances, the ideal should be invoked critically to expose false claims in its name. That is another reason one should seek to clarify and hold onto the ideal, however one construes it, not simply let it be appropriated by impostors. Without it, immanent normative criticism has nowhere to stand. In many colonial encounters, realities were ambiguous and complex, maybe indeed “fatally confused,” with the law serving at times as a “a tool of liberty” and at others as “an instrument of despotism” (Washbrook 1999, p. 407). Thus, Massoud (2013) has written of the convoluted and often tragic legal history of Sudan from the time of British colonialism through a brief democratic interlude, to dictatorial successors, joined more recently by human rights advocates and aid workers. In the phase of colonial rule, there was great emphasis on creating legal institutions on the British model, integrating local elites into their activities, enlisting locals as jurors, and more generally “put[ting] the Sudanese under colonial control by advancing a weak rule of law and seeking to create an independent judiciary” (Massoud 2013, p. 44). Massoud ﬁnds many similarities between the uses of law by the colonists and those of later dictators whose rule, he stresses, was not “lawless” but heavily dependent on law. On the one hand, he describes this extension of a “weak rule of law” as part of a British strategy of legitimation, for which law rather than riﬂes, or law before riﬂes, or along with them, was well adapted (Massoud 2013, p. 47). On the other hand, Massoud acknowledges that under the British it was by no means all smoke and mirrors. Thus, he writes frequently of the attractions and uses of English law to anti- and immediate-postcolonial activists, and in cadences that evoke the complexities and ambivalences of Thompson, he reports, Like all foreign diplomats, members of the Sudan Political Service were appointed to serve the interests of the metropole. But unlike many of their colleagues stationed in other British colonies, many SPS ofﬁcials saw themselves as obligated to serve the Sudanese as well. They sought to promote an authority in Sudan greater than their own: the authority of law... the rule of law was not just lipstick on the face of an authoritarian pig. On some level, however limited it was, norms of fairness did guide Britain’s representatives in Sudan. But by cultivating an image of fairness and justice, the colonial regime was also able to maintain its essentially unjust and authoritarian rule. (Massoud 2013, p. 82) Similar tension-ridden observations have been made about many parts of the British Empire (on India, see Kolsky 2010, p. 13) and about other empires as well (see Benton 2002). There is no logical inconsistency between Massoud’s two themes—legitimation of exploitative imposition and salutary antiarbitrariness. Law can ultimately serve bad purposes even if it does some good; indeed, as Massoud stresses, doing good can be one way of doing bad because, for www.annualreviews.org • The Rule of Law 211 example, it legitimizes illegitimate power, distances it from (its own) distasteful acts, and can act as a pressure release valve. But sometimes, even in the midst of bad, doing good just does good; sometimes it is even intended to. Constraining arbitrariness in the exercise of power is one such good. We should leave conceptual space for those ambiguous possibilities, though it is not always easy to do that, and it is often not done. Finally, one should never confound the mere presence and active use of law, even when accompanied with rule of law rhetoric, with the rule of law itself. The
rulers of the Soviet Union, for example, made extensive use of law and legalistic rhetoric after Stalin ended the period (that he had instituted) of “legal nihilism” in the 1920s. He was never burdened, however, by concern for the rule of law (see Krygier & Czarnota 2006, Kurkchiyan 2003). The existence and use of law are facts of political organization and practice. They can be deployed for many purposes, some antithetical to the ideal of the rule of law, some supporting of it, some both at once. What role a particular legal order plays in the attainment of the ideal is a question; it should never be an assumption. CONTEMPORARY RULE OF LAW DISCOURSES This last point is not merely of antiquarian concern. For arbitrary power is as rampant in many parts of the world as it ever was, even though the world is full of law and, as never before, of rule of law missionaries. Often they travel to places where ﬁerce wars are ongoing or just over; where state structures are fragile; where all sorts of religious, ethnic, and cultural cleavages make everyday life “solitary, poor, nasty, brutish, and short” (Hobbes 1960, p. 82); and where the “facts on the ground” have no connection with the legal bric-a-brac that is being imported or polished up. These are simply “hard facts” (Di Palma 1990, chapter 1). The existence of such facts means the job is never easy, and success in limiting possibilities of arbitrary power is likely to be elusive or ephemeral. But apart from those facts, there are ways in which we think about them (or often do not) that do not make them easier. Here are a few. Some have to do with the ideals that spur interest in the rule of law, others with the relations between institutions and contexts. Ideals Ends and means.3 It is extremely common for the question “what is the rule of law?” to be answered with a list of purported institutional elements, as though they were ingredients in a recipe or a blueprint for institutional design, wherever in the world that seems called for. That seems to me quite the wrong way to proceed. It is the wrong way to begin, because as a normative notion, one needs to start with the point of the exercise before one can identify what achievement of that point might require. And it is the wrong way to go on, because the value(s) that animate concern with the rule of law might in principle be pursued and institutionalized in a variety of ways. Specifying the ultimate values that the rule of law is asked to secure is not yet to describe how these values are to be achieved. And perhaps such speciﬁcation can never be accomplished with any combination of generality and precision. In different societies with different histories, traditions, circumstances, and problems, these (and other) values have been secured in different ways. And there are also many ways, and often incentives, to fail. Starting with generally speciﬁed commitments—e.g., hostility to arbitrary power—one can seek to elaborate more speciﬁc conditions and intermediate and more concrete 3This section is drawn from Krygier (2016d). 212 Krygier principles—e.g., generate power to balance power, or do not put all power in the same hands. From these in turn one can seek to develop speciﬁc practical and institutional recommendations, in particular circumstances, with particular ways and means derived from and adapted to those circumstances. These intermediate principles can help in appraising whatever normative and institutional setups one has and suggesting modiﬁcations or alternatives to them. They are variably fulﬁlled, and fulﬁlled in various ways, in different societies and times. And again, there are many ways to fail, some of them quite likely to surprise missionaries of the rule of law. On the one hand, ideals of the rule of law have been better served in some nations and by some institutions than others. One need not conclude from institutional variety that new contexts are simply “sui generis” (Teitel 2000, passim) (as all contexts are in part but not completely). Institutional possibilities are not inﬁnite, institutions have consequences, different institutions have different consequences, learning can and does occur, and you have to start somewhere. So it would be absurd to ignore what Selznick (1969, p. 9), following Dewey, called the “funded experience” of generations, among them truisms that have proved valuable again and again. One of these might be, as Montesquieu and Niebuhr (1932, p. xv) insisted, that “power must be challenged by power.” One is, therefore, often warranted in starting with a (preferably weak) presumption in favor of institutional
models that have worked elsewhere. On the other hand, one should be wary of too swiftly converting general presumptions into prescriptions, particularly prescriptions that are highly speciﬁc, let alone that hold out particular institutions as universal models to be emulated. Even if it makes sense to think of the rule of law as any sort of technology at all, it has to be understood as a distinctive kind of technology: an interaction technology, not a production technology, to borrow a distinction from Stephen Holmes. The success of interaction technology depends crucially on how it engages with the speciﬁc sorts of interactions to which it is applied. Because the patterns and character of social interactions vary hugely with time, place, and circumstance, how they might be affected is not something to be understood a priori. Pursuit of the rule of law requires reﬂection on how some generally valuable goods might be achieved in particular contexts. Problems and predicaments will vary, and so too will the best ways to meet them. Wherever you are, the rule of law should be approached with a combination of its point(s) in mind, more speciﬁc principles derivable from those grounding values, and acquaintance with various attempts to secure and institutionalize such ends, together with a great deal of reﬂected-upon local knowledge. It is more common, however, to cut to what is imagined to be the chase, often without much idea of any particular terrain (other than one’s own), or of what fresh obstacles (and, for that matter, opportunities) might lie in wait. Thin and thick. On the view developed here, the ideal of the rule of law is concerned with the exercise of power. Distinctions have to be made, and matters of scale, character, and consequence matter, but the bottom line is that wherever power with signiﬁcant public consequence is in play, it is better that it be tempered than not. I ﬁnd it hard to understand how anyone can treat the problem lightly. It is perennial, examples of its tragic outcomes are close to inﬁnite, and those examples are not drying up. To worry about the problem is not original (which in this case I take to be a virtue). It is not unanimously endorsed, however, both because some people do not consider it worrisome and because others have other worries. There are certainly other things one might worry about, such as social inequalities, or public health, or education, or the predicament of refugees around the world. None of these is a small problem, but arbitrary power is not trivial either. We do better when there are some regular and reliable ways to diminish it. In the perspective of contemporary discussions, however, this focus might seem to attribute either too much or too little to the rule of law: too much if you are committed to what is called www.annualreviews.org • The Rule of Law 213 a thin, formal, institution-focused conception of the rule of law, and too little if one’s preference is for a thick, substantive, or material conception of it. Thin accounts identify the rule of law with a particular set of institutions, rules, and/or practices but exclude valued outcomes from the deﬁnition. Their concept of what the rule of law is is morally unencumbered, even though most of them appear to think it is by and large a good thing. Thick accounts are morally more ambitious and include substantive outcomes, from a larger vision of a good society and polity, as part of the conception itself. Thin and thick, formal and substantive, conceptions compete in countless discussions of the rule of law among legal philosophers (Raz 1979), comparative lawyers (Peerenboom 2004), and rule of law promoters (Kavanagh & Jones 2011). Positivist legal philosophers and legal comparativists tend to favor thin conceptions, what might be called rule of law–lite, for their lack of normative ballast: morally noncommittal, easier to identify, and able to travel further because they carry less baggage. Many governments, too, particularly authoritarian ones, prefer to be assessed against thin formal criteria, easier to satisfy than thick, morally demanding ones. Today international businesspeople, unwilling to buy into controversial questions about democracy, human rights, and other large values in, say, Singapore and China (with both of which they might want to do business), often prefer a formal, thin conception too. There are difﬁculties at both ends of this spectrum—thin institutions versus chubby values— and indeed with framing the issues along such a spectrum at all. On the one hand, thin accounts carry more weight than they admit. Typically they list features of legal institutions—ofﬁcial, state institutions—that are thought to be the primary vehicles of what we take to be the rule of law, in First World countries thought to have it. What then about the now notorious problems of “isomorphic mimicry... adopting the camouﬂage of organizational forms that are successful
elsewhere to hide their actual dysfunction” (Pritchett et al. 2010, p. 2, emphasis in original)? Institutions and rules are shipped or copied, but the outcomes expected do not eventuate. Does one then have the rule of law because the institutions appear to be in place, or lack it because nothing works as it should? More generally, and to anticipate a point elaborated below, given the focus of thin accounts on state institutions, what of the exercise of power by nonstate forces—social networks, prominent (dominant?) families, clans, religious leaders, Maﬁa bosses, or assorted fellowships of “dirty togetherness” (Podg´orecki 1994, pp. 51, 115, 131–32)? If, whatever the law says, they are free to act arbitrarily, capriciously, does it make sense to insist that nevertheless the rule of law exists because purported institutional underpinnings of a legal order are present, or standard practices have been mimicked? One (not small) problem with the activities of rule of law promoters, as an anonymous colleague of Carothers famously and in lapidary terms explained, is that “we know how to do a lot of things, but deep down we don’t really know what we’re doing” (Carothers 2006, p. 15). We simply do not know how institutions, even familiar institutions that we associate with the rule of law at home, will perform in the sorts of settings where we promote the rule of law abroad. For that matter, we do not know much about why such institutions perform as they do at home. So much is in place that cannot be wished away. Should we say we have achieved the rule of law when we have built courts, installed computers, and trained judges, but no one visits them and, more important, they have little effect on what goes on in the wider society (see Kilcullen 2011)? Or what should we say when the efforts of so-called rule of law or human rights–focused law reformers to train judges and build courthouses in Sudan, to enlist and reform the law in the service of the poor, turn out not to do much of that but rather legitimize the power of a dictatorship that is “already accustomed to using any available legal tools and resources for political gain” (Massoud 2013, p. 206)? Have they installed the rule of law, or 214 Krygier have they simply issued their best guess about what might serve rule of law values, which turns out not to? Or has what they have done anything to do with the rule of law at all? Again, Kleinfeld (2006, p. 53) observes that certain efforts, which may well satisfy thin accounts as rule of law measures, might turn out to harm precisely what they are supposed to help. Thus, she points out, Most pernicious, depending on how they are implemented, institutional reforms carried out under the banner of rule-of-law reform can actually undermine rule-of-law ends. For instance, in Romania, businessmen have pleaded for an end to legal reform: They can live with bad laws, but the constant “improvement” of key property laws by various bilateral and multilateral aid agencies creates an unpredictable legal environment. An end good of the rule of law—a stable, predictable legal system—has been undermined by the so-called reform process. So thin accounts are at once too thin, because they bear only a contingent relationship to what we would want and recognize as the rule of law, and too thick, because they are full of parochial assumptions about the workings and value of legal institutions, assumptions we have no reason to imagine will ﬂow as far as the institutions and rules that supposedly carry them. On the other hand, thick accounts too easily fall foul of Raz’s caution that to equate the rule of law with whatever we take the good to be robs the concept of any distinctive signiﬁcance. Loading wide-ranging, substantive ideals into the concept threatens to melt it into everything else we might like. As Raz (1979, p. 211) puts it, if the rule of law is the rule of good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just to discover that to believe in it is to believe that good should triumph. The interpretation of the rule of law recommended here does not choose between thick and thin substantive achievement at large, but looks somewhere else. Though its implications are not small it is modest. It has to do not with social values at large but rather with a speciﬁc issue: how power is exercised. The ends of the rule of law. The rule of law would not have received such applause if no one thought it was good for anything. And in truth, all sorts of goods are today claimed to �
��ow from it—e.g., economic development, human rights, and democracy. Indeed these claims are the lifeblood of the international rule of law promotion industry: If leaders of that industry did not think these results ﬂowed from the rule of law, they would not be interested in it. But partisans of the traditions recalled above still would be. Why? On the view developed here, the problem with which the rule of law is offered as part solution is that of arbitrary power. It makes sense, though it might not always be true, to think of law as a solution to problems that power disparities raise, because law is speciﬁcally and characteristically— at its core—a vehicle for the exercise of power. In certain conﬁgurations and circumstances, or so is the rule of law hope, it can also be a potent means, though never the only means, by which power might be channeled, directed, constrained, or tempered. If arbitrariness is successfully minimized, one might argue, as Weber did, that “sober bourgeois capitalism” is likelier to get off the ground, but on my interpretation of the tradition, and of Weber, that is a sociological argument about what reduction of arbitrariness in the exercise of power might facilitate. It is not itself a quality of the rule of law itself. Nor are democracy, the full panoply of human rights (apart from some of those rights, like the right to a fair trial, which are parts of the www.annualreviews.org • The Rule of Law 215 rule of law), and other things it is now fashionable to attribute to the rule of law. What difference might this make? On this account, the value of the rule of law is immanent and generic, that is, hostility to arbitrary power is intrinsic to the ideal of the rule of law, and it is relevant across the board. Hostility to arbitrary power might be grounded in some account of human persons and their interests and needs; thus, hostility to arbitrariness might stem from a commitment to liberty (Pettit 1997), moral equality (Gowder 2016, Sempill 2016), or dignity (Waldron 2011a,b) appropriate to that understanding of humanity and personhood. It might have other grounds as well or instead, for example, suspicion of human weakness, our fallen nature, or our tendency toward hubris. Whatever the grounds, those who connect the rule of law with hostility to arbitrariness are less likely than contemporary rule of law promoters to have a speciﬁc domain of life or purpose in mind. Nonarbitrary power is intimately tied to the concept of the rule of law in ways that other goods, for instance, economic development or even democracy, are simply not, though they might ﬂow from it. The former is not an external but an immanent value of the rule of law, its telos. The latter are external beneﬁts said to ﬂow from it. However, among its contemporary promoters, the rule of law is supported to the extent that it supports democracy, contributes to economic development, reinforces human rights, and so on. Treating the rule of law thus, as an instrument for attainment of particular ends, narrows the reasons to support it and renders it more fragile. The reigning accounts today are particularly well characterized by Sempill (2016, pp. 348, 349) as expressions of what he calls “the bureaucratic standpoint,” which seeks to understand how various features of social life, including those practices which embody the projects of one or more traditions, can be appropriated and adapted by possessors of the bureaucratic standpoint to serve as, or in support of, techniques for the effective control of the social world. From this perspective, which is indifferent to the moral goods animating traditions, traditions may nonetheless bequeath things of value insofar as they effectively provide instruments or tools that enhance the power of those whose ends this standpoint serves.... In the case of the Rule of Law, the bureaucratic standpoint interprets elements of inherited legal thought and practice according to a manipulative idea of instrumental efﬁciency which obscures their traditional signiﬁcance. The main target of Sempill’s article is not rule of law promoters but formalist philosophical accounts of the rule of law, speciﬁcally that of Raz. His argument is larger, however, and his characterization ﬁts promoters even more closely, much more closely, than it does philosophers. Economists’ new passion for the rule of law is a good example. Previously unnoticed, it is now in every nostrum for economic development. Is that a good thing? It depends. Even were we more conﬁdent than we have reason to be that neoliberal legal and market reforms were guaranteed to produce the economic outcomes intended, the selectiveness of their interests should worry anyone with a traditional commitment to the rule of law. Thus, from a World Bank expert on
development, we learn, A broad consensus has emerged on the centrality of the rule of law in the second stage of reform...The prevailing development paradigm rooted in the neo-liberal precepts of the Washington Consensus has elevated the rule of law to the altar of the institutional reforms required to sustain market reforms. (Santiso 2003, p. 113) 216 Krygier The “broad consensus” seems remarkably contingent, however, on the current state of economic theorizing. Thus, While the swift and decisive decision-making needed to implement ﬁrst generation market reforms often requires a pliant judiciary, second generation economic reforms aimed at anchoring the institutional foundations of the market economy require precisely the opposite. Market-oriented economic reforms are not sustainable without restoring and strengthening the credibility of the rule of law. As the reliability of the legal and judicial process increases, so does the credibility of the public policymaking process. More fundamentally, government by executive decree, while an asset in the initial phase of economic reform, progressively becomes a liability in the second phase of reform. (Santiso 2003, p. 119) What if the author, or the World Bank, or the post-Pinochet government were to change their view and decide that not merely “ﬁrst generation market reforms” require a “pliant judiciary,” but second generation reforms do too? Or what if the rule of law had once been enthusiastically promoted to generate liberal democracy but, like the present (mid-2016) Hungarian and Polish governments, we are over that? The logic of the argument, and some contemporary experience in those countries, appears to be that the rule of law would be out the window. And even when it has got in the door, it may skip a few rooms in the house, particularly those less opulently appointed. Thus, economic reformers are particularly interested in encouraging security of property rights, investment, and trade. That explains what institutional reforms they advocate. It also explains where they advocate them. That is rarely everywhere. So, note the reﬂections of one of the most sophisticated and dedicated advocates of the importance of the rule of law, as reforms in Latin America in the 1990s were made in its name: [I]n the present context of Latin America, the type of justiﬁcation of the rule of law one prefers is likely to make a signiﬁcant difference in terms of the policies that might be advocated. In particular, there is the danger derived from the fact that nowadays legal and judicial reforms (and the international and domestic funding allocated to support them) are strongly oriented toward the perceived interests of the dominant sectors (basically domestic and international commercial law, some aspects of civil law, and the more purely repressive aspects of criminal law). This may be useful for fomenting investment, but it tends to produce a “dualistic development of the justice system,” centred on those aspects “that concern the modernizing sectors of the economic elite in matters of an economic business or ﬁnancial nature... [while] other areas of litigation and access to justice remain untouched, corrupted and persistently lacking in infrastructure and resources.” For societies that are profoundly unequal, these trends may very well reinforce the exclusion of many from the rule of law, while further exaggerating the advantages that the privileged enjoy by means of laws and courts enhanced in their direct interest. (O’Donnell 1999, pp. 319–20) The values the rule of law serves are not absolute but they are general, and they are truly valuable. If they are to be favored merely insofar as they are thought instrumental to the achievement of some other particular goal, such as economic development or even democracy, then other ways arbitrary power can damage lives threaten to drop from consideration. This is a particularly serious issue because our knowledge in these areas is notoriously uncertain. There are intuitively plausible reasons, and some evidence, to support the belief that lessening the possibility of arbitrary power might support those further good things. But the evidence is equivocal (see Bugariˇc 2014, Haggard & Tiede 2010, Haggard et al. 2008), and if it were shown www.annualreviews.org • The Rule of Law 217 that though in a particular society power was not exercised arbitrarily the economy had tanked, for instance, this would not be reason to deny that the reduction of arbitrariness in the exercise of power was still a good thing. Afterawide-rangingreviewofliteratureonlawandeconomicdevelopmentthathadconfessedly “taken a highly instrumental view of the rule of law, stressing its utility for growth in particular,” Haggard et al. (2008, p. 221) caution, But our ﬁnal and most important point is that the rule of law is of great importance as a value in its own right and as a contributor to other values, such as human freedom. Yet precisely for that
reason—because we believe in the rule of law—it is all the more important that those who would offer development assistance make sure, ﬁrst, to do no harm. This warning has not always been heeded. Yet although tempered power is not necessarily or always more important than other goals, it has a speciﬁc focus and a general importance not reducible to other things, but often not separately considered or taken into account. There are many ways to exercise power, and doing so in a way that is not, and routinely can be expected not to be, arbitrary is salutary. That is so even independently of the particular substantive ends for which power is exercised [though arbitrary power arguably lends itself to some of the worst ends more easily than its opposite (see Fuller 1969, Rundle 2009)]. States and Societies According to Hadﬁeld & Weingast (2014, p. 22), Despite its centrality to many literatures, the concept of the rule of law is woefully undertheorized... Indeed, the great majority of academic and policy work takes the concept for granted, generally equating it with the institutions and practices in those (relatively few) parts of the world where the rule of law has been largely achieved. There are two points here: undertheorization and institutionalization. Earlier parts of this article conﬁrm the ﬁrst, but the second is also valid. Just to render explicit what the passage assumes, typically those are the “institutions and practices” of the formal, ofﬁcial, state legal order. Lawyers typically start and stop there, so too legal philosophers, economists, and political scientists, and most often rule of law promoters as well. This equation, I have argued elsewhere, is virtually universal in discussions of the rule of law (see Krygier 2011, 2016c; and see Kleinfeld 2006): If you deﬁne the rule of law, you enumerate features of central legal institutions; if you want to assess its strength or weakness, you look at features of precisely the same institutions; and if you aim to build it, that means building just those institutions or, because the originals do not travel under their own steam, some imitation or simulation of them. Here are two examples, one from the ﬁeld, the other from the study. First, as Jensen & Heller (2003, pp. 1–2, emphasis in original; see also Santiso 2003) point out, In legal circles in developing countries and in international development circles, rule of law has become almost synonymous with legal and judicial reform. Basic questions about what legal systems across diverse countries actually do, why they do it, and to what effect are either inadequately explored or totally ignored. In developed and developing countries, larger questions about the relationship of the rule of law to human rights, democracy, civil society, economic development, and governance often are reduced to arid doctrinalism in the legal fraternity. And in the practice of the international donor 218 Krygier community, the rule of law is reduced to sectors of support, the most prominent of which is the judicial sector. It is not quite the case that people have no other ends than serving the means chosen, but rather, as Kleinfeld (2006, pp. 50–51; and see Kleinfeld 2012) observes, When the rule of law is implicitly deﬁned by its institutions, rather than its ends, the latter tend to be assumed. Rather than considering the desired goals we are trying to achieve through the rule of law, and then determining what institutional, political, and cultural changes best achieve these ends, practitioners are tempted to move directly toward building institutions that look like those reformers know. Welcome to “isomorphic mimicry.” No wonder that Pritchett et al. (2010, p. 2) complain that “[t]he conﬂation of form and function... has been one of the most ubiquitous but pernicious mistakes of development policy over the last sixty years, and is manifest most clearly in widespread implementation failure.” A second example of institution-ﬁxation is not a product of the difﬁculties of recent practice; it is rather a more long-standing, perhaps discipline-inspired, failure of sociological imagination, common among lawyers and philosophers. One rare, notable, and noble exception to the standard in legal philosophy might prove the rule.4 Waldron is one of very few legal philosophers who have complained (rightly) about the narrow social and institutional focus of contemporary philosophical accounts of the rule of law. He makes the important point that getting to the Rule of Law does not just mean paying lip service to it in the ordinary security of a prosperous modern democracy: it means extending it into societies that are not necessarily familiar with the ideal; and in those societies that are familiar with it, it means extending it into these darker corners of governance as
well. (Waldron 2011b, pp. 3–4) He also observes that [w]hen I pay attention to the calls that are made for the Rule of Law around the world, I am struck by the fact that the features that people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions of this ideal... this formal conception is not what ordinary people have in the forefront of their minds when they clamor for the extension of the Rule of Law into settings or modes of governance where it has not been present before. (Waldron 2011b, p. 4) Waldron purports to capture such features, what “ordinary people are urging,” by supplementing Fuller-and-Raz-style formal features of legal rules with elements of legal procedure and the institutions like courts that embody them. He commends a list of 10 such features, mainly to do with the fair, impartial, open, and appealable conduct of legal hearings before “a legally trained judicial ofﬁcer” and with a “right to representation by counsel.” These are all admirable procedures, and well-motivated as well. However, they have in common with the accounts Waldron criticizes that they are all focused solely on the usual ofﬁcial institutional suspects. The big shift in institutional focus between Fuller and Waldron is from ofﬁcial legislatures to ofﬁcial courts, 4This condenses a section from Krygier (2016c). www.annualreviews.org • The Rule of Law 219 particularly criminal courts of kinds well recognized in the West. This is not, in comparative or sociological perspective, a huge distance to travel. Such procedures move barely an inch from the formalities they supplement. What of keeping faith with “what ordinary people are urging”? Again, this is welcome. But it is unclear that Waldron’s salutary supplement to traditional understandings goes anywhere near far enough. As he would doubtless agree, the vulnerabilities, aspirations, and values that lead people to clamor for the rule of law are not primarily to be judged by what it does for lawyers, still less legal philosophers. Indeed, elsewhere he says as much: “This ideal is not the property of the analytic philosophers and it is certainly not our job to go round reproaching laymen for not using the term in the way that (for example) Joseph Raz uses it” (Waldron 2012, p. 16). If the rule of law is a good, it is a social good, and it is challenged, inter alia, by social bads. Not all of these have much to do with what goes on before judicial tribunals with reﬁned adjudicative procedures. If Afghan citizens, or Syrians, for example, lament the absence of the rule of law in their societies and lives, is it obvious that they are talking only about receiving unclear legal messages from the parliament (Raz), or having a hard day in court (Waldron)? Perhaps the irrelevance of the law or any other institutional constraints, the capriciousness of normatively untempered power from warlords, terrorists, and others in their lives, might matter to them more immediately, more often, and simply more, than the character of any laws they are likely to encounter, or their (likely rare) appearances before judicial tribunals (where they exist). In pursuing Waldron’s agenda, then, we should be open to expanding the social and institutional range of our “conceptual geography” ( Judt 1990, p. 25), to use an apt phrase from another context. We need at least to consider whether the values that animate concern with the rule of law might need and draw support from other than Western standard-issue sources, as well as whether there might be other conditions for, and alternatives to, effective state-law contributions to that putatively charmed state of affairs. Though it rarely seems to be taken up by philosophers, this point is far from new. Indeed Desai & Woolcock (2015, p. 157) claim it is a constitutive lament of the rule of law promotion ﬁeld and has continued to be heard for 40 years. One question, which they tackle, is why members of the ﬁeld nevertheless continue to do as they have done for so long (Desai & Woolcock 2015), Tamanaha 2011). The work of Justice for the Poor, the group within the World Bank of which they are mainstays, is a salutary antidote to long-term tendencies, but it is not (yet) mainstream. Another question is why such criticisms seemed to have occurred to rule of law promoters only after repeated disappointments in the ﬁeld, whereas staples of sociolegal research over a century might have shortcut the learning process. The literature of “legal pluralism” (Tamanaha et al. 2012) suggesting that societies abound with
normatively signiﬁcant nodes and networks apart from the state is, after all, not young. Even if we leave aside Aristotle’s observations that “customary laws have more weight, and relate to more important matters, than written laws” (Aristotle 1988, §1287b, 5–6), and more extensively and deeply Montesquieu’s enumerations of the extralegal sources of moderation and immoderation, we have Ehrlich (2002), Petra˙zycki (1968), Malinowski (1926), and their descendants, such as Moore (1978) and Galanter (1981). All of them stress the range and signiﬁcance of sources of social normativity outside states and ofﬁcial laws (where there are states and ofﬁcial laws). Moore has recently reﬂected on a long life of discovering such phenomena, sometimes serendipitously, sometimes with intent, alongside the ofﬁcial activities she had investigated, of various sorts and in various societies. Those activities, Moore (2015, p. 13) states, have all been shown to exist only in the presence of ofﬁcially unacknowledged or parallel societal realities. The signiﬁcance of such parallel contexts to an understanding of the world in which law 220 Krygier functions is now generally recognized in studies of society. I would argue that the social context is a dimension that also belongs in the very study of law itself. Elsewhere I have sought to examine some implications of these sociological truisms for the rule of law (e.g., Krygier 2011, 2016c). Here I merely compress three themes: social causality, sources of threat, and sources of promise. Social causality. No account of law that systematically ignores the interactions, and the variable complexities of interactions, between ofﬁcial law and “semiautonomous social ﬁelds” (Moore 1978) or “indigenous orderings” (Galanter 1981) can come to terms with the fundamental questions of “social causality” (Moore 1978, p. 6) that lie at the base of any attempt to use law to affect life, and of any attempt to assess how and how much it does so. To take these truisms seriously requires a reassessment of relations between center and periphery in the relations between ofﬁcial law and those to whom it relates, indeed a reassessment of what is center and what is periphery. As well as noting that many law-affected interactions involve “bargaining in the shadow of the law” (Mnookin & Kornhauser 1979), we need to be alert to the many and varied ways law operates “in the shadow of indigenous orderings” (Galanter 1981). Because the ends of the rule of law depend on the causal efﬁcacy of the means chosen, and that only emerges from these interactions, some understanding of what that involves might be useful. Sources of threat. If society is full of networks, nodes, ﬁelds, and orderings that have power over people in and around them, and if arbitrary exercise of power is to be avoided, the conventional assumption, that threats of arbitrariness with which the rule of law is concerned are a state monopoly, needs an argument. I do not know a persuasive one from either the tradition or contemporary writings. The sources, scale, and signiﬁcance of arbitrary power are empirical matters, answers to which will vary in different societies and at different times. But then why has there been such an exclusive concentration on threats coming from governments, by writers on the rule of law? If there are reasons to be concerned about arbitrary exercise of power, then one would think these reasons should apply wherever it is to be found signiﬁcant enough to make them worrisome. Of course, if the power is inconsequential, or perhaps to be judged a private matter, or for some reason outweighed by beneﬁts of leaving it unregulated, then perhaps those reasons for concern would be overridden. But surely that depends upon evidence relating to, for instance, the magnitude of the power involved, the number of people who might be affected by it, the signiﬁcance of the effects, or the amount and kinds of arbitrariness to which they might be liable. None of this can be assumed to point exclusively in the direction of states. The power to harm individuals if exercised arbitrarily can plausibly be alleged of corporations within and without states; nonstate organizations, among them terrorist and ﬁnancial organizations, oligarchs, maﬁosi, warlords, and tribal elders; and international ratings agencies and ﬁnancial institutions. Banks can do a lot of damage too, and in recent relatively unregulated years and countries,
they have. Nothing in the tradition (except its silence on the issue) explains why we should not have an interest in tempering signiﬁcant power with public consequences, whoever or whatever is exercising it. Sources of promise. Why imagine that the state has a monopoly on effective responses to arbitrary power? In some times and places, state law will be of great signiﬁcance in tempering arbitrary power, in other times and other places, less so. If not there, then given the signiﬁcance of avoiding arbitrary power, we will need to look elsewhere for help. And there are likely to be many places to look, though that too will vary from society to society, time to time, source of www.annualreviews.org • The Rule of Law 221 arbitrariness, and available response. If sources of the illness to which the rule of law is supposed to be a cure might come from entities other than states, so too might it be with cures themselves. Though even that is not self-evident. Nonstate causes might have state cures, and vice versa. Universalizing assumptions about variable social processes are unhelpful here. POSSIBLE FUTURES “A Social Science that Does Not Quite Yet Exist” The concerns that have led to discussions of the rule of law—what problems it needs to cope with, what might be helpful in the attempt, and how this might vary—are multiple, as are the sources we need to draw on to appreciate them. They include social and political theory, jurisprudence, history, and several of the social sciences. If there were ever a subject that could beneﬁt from historical awareness and interdisciplinary mixing, it is the rule of law. But such ecumenism is not common. For inmates of disparate rule of law ﬁelds do not mix much. You are unlikely to stumble over many philosophers or historians of political thought at rule of law promoters’ conferences, for example. The compliment is commonly returned. Remind me of the last book on the rule of law that was philosophically adept and betrayed close familiarity with social scientiﬁc discussion, the huge rule of law index industry, and the activities of rule of law promoters. Actually, there is one (Gowder 2016), but it was only published this year, and its author rightly claims it to be distinctive for this very combination. And yet everyone agrees that the rule of law is supposed to be not just something but a good thing, so it is odd that the thoughts of those who have reﬂected deeply on the nature of the good(s) that might be associated with it are so resolutely ignored by those who want to generate them.5 Conversely, the rule of law is a practical ideal; its partisans think it can make some difference in the world. But should lawyers and philosophers learn some more about how law works in the world, maybe from sociolegal research? Apparently not—not their ﬁeld. Philosophers speak about the rule of law, of course, but as I suggested in the last section, they tend to do so in a socially and often historically unanchored way. However, a sociology speciﬁcally concerned with wrestling with the normative and explanatory grounds of the rule of law and their policy implications is not a well-populated ﬁeld. Almost 50 years ago, Selznick (1968, p. 52) argued that, given its centrality among legal values, the rule of law “must be a chief preoccupation of legal sociology,” and he pointed to a good deal of research that spoke to that theme. Though they might have spoken to it, however, in the sense of bearing on it, most sociologists did not speak of the rule of law or analyze it particularly closely. The rule of law has not until recently been a mainstream sociological concern. In recent years, as we have seen, some mainstream social scientists have become interested in what they understand as the rule of law (see Acemoglu & Robinson 2012; Fukuyama 2011, 2014; Hadﬁeld & Weingast 2014; Heckman et al. 2010; North et al. 2009), in part because of internal disciplinary developments, particularly in institutional economics, and also because the rule of law export industry has brought attention to problems, and postulates connections, that are interesting for social scientists to explore, and the issues are large. However, social scientists rarely engage closely with philosophical issues of either a conceptual or normative sort. Their conceptual investigations are often perfunctory or focused on identifying measurable entities rather than exploring contested ambiguities of meaning, and their normative concerns, where 5Though see, for a collection of essays that cover quite some ground, Fleming (2011), and for an author unusually familiar with and illuminating about these issues, Tamanaha (2004, 2011). 222 Krygier these are allowed,
are typically commonsense utilitarian. They are generally uneasy to say much about values, perhaps because it remains largely true, as Selznick (1973) long ago lamented, that “[t]o put it bluntly, our keenest minds in the social sciences didn’t know what to do with an ideal except handle it gingerly and view it with alarm.” A bit of pooling—past/present, specialism/specialism—might help. So I would advocate (once again) plagiarizing a phrase coined for another purpose by Sołtan (1999, p. 387; 2002, p. 357), the cultivation of “a social science that does not quite yet exist.”6 In my interpretation, this would begin with a normative range of questions, among them, what are the reasons for which people have clamored and we might still clamor for the rule of law? And are they good reasons? This essentially philosophical task would involve examining existing answers, perhaps revising them, perhaps devising new ones. If persuaded that the reasons justify the quest, one might then seek to think about how this clamor might be satisﬁed. It would then need to be asked where the dangers to whatever values were settled on were likely to come from, where effective responses might be found, and what those might be. Because many of the key dangers are likely to be socially and politically generated, many of the major goods that ﬂow from tempering arbitrary power (or whatever other value is chosen) will be delivered in the wider society, and many of the major sources of defense against arbitrariness need to be found there too, the normative quest would likely lead us to undertake observations and theorizations about things other than law. And to understand how law does what it does, and why it does not always do what we might like it to do (among other things effectively temper the exercise of power), we need to understand the workings of law in society and of society in law. Politics as well and in spades, because at base we are dealing with incentives, and even in the tropics temperate incentives do not grow on trees. It takes a lot for them to grow where they seemed crazy, weak, or suicidal just a short time before and often still (see Ginsburg 2011). That is true for both victims and victors, wieldees and wielders, of arbitrary power. So the accounts of the rule of law, the billions of dollars spent on rule of law promotion, and the anatomical dissection of the essential elements of the rule of law that focus their energies almost exclusively on central, state, and legal institutions are misconceived. These are exceedingly complicated matters, where lawyers’, or philosophers’, or anyone’s ﬁrst intuitions are unlikely to be helpful. So we would necessarily be led beyond intuitions, however intelligent, to facts about the social world, and in particular about causality, variety, and contexts in that world. We would need to consider, and maybe even do, some empirical research and social theory, asking how those values have been secured (where and if they have), how they might be where not, and how much of what we have discovered to work somewhere is likely to work elsewhere. There is, or that is an implication of this argument, no single, all-encompassing recipe to be found, and it is a waste of time to look for one. But there might be fruitful possibilities; law is likely often to be among them; and intelligent, self-consciously modest extrapolations from one place to another might be available. Beyond the Rule of Law? In an unpublished conference paper, Braithwaite (2011) pointed out that though many people speak of the rule of law as a “good thing for its own sake,” it is not that. Rather, he contended, 6I (repeatedly) borrow the phrase from Karol Sołtan. He has used it of Philip Selznick, Lon Fuller, and Charles Anderson, whom he considers pioneers of such a science, that of “civics,” or, using Fuller’s coinage, “eunomics.” Because Selznick and Fuller are arguably also pioneers in the sociology of the rule of law, I justify myself with the thought that it is not plagiarism but merely respectful homage to have borrowed the phrase from Sołtan. www.annualreviews.org • The Rule of Law 223 it “is best thought of as part of a separation of powers rather than the reverse.” Why should the order matter? According to Braithwaite, who is a card-carrying classical republican (not in the American sense of that word, no tea parties for him; his concern is avoidance of domination), Conceiving the separation of powers as a rule of law question constrains a republican imagination in how to struggle for more variegated separations of powers. It tracks political thought to a barren, static constitutional jurisprudence of a tripartite
separation of powers. This when conditions of modernity require us to see private concentrations of power such as ratings agencies and private armies... as both dangers and contributors to productive balances of power. (Braithwaite 2011, pp. 2–3) Later he comments that Webs of institutions are needed to strengthen governance by making it accountable for effectiveness and integrity. Webs of state and nonstate institutions that control domination and enable innovation, enterprise and learning, can be mutually enabling and mutually checking of one anothers’ accountability failures.... For most tasks of modern governance, networks get things done better than hierarchies. But networks must be coordinated and sometimes, but only sometimes, the state is the best candidate to coordinate. For most problems, strengthening state hierarchy to solve problems is not as effective as strengthening checks and balances on hierarchy as we also strengthen private-public partnerships, professions with technocratic expertise on that problem, civil society engagement and vigilance, and other networks of governance, while at the same time strengthening co-ordination of networked governance. (Braithwaite 2011, p. 11) I am not totally persuaded. I do not believe, for example that separation of powers should be regarded as the ultimate end in view, and I hang on to the tempering of arbitrary power as closer to that. Separation is one technique to that end, not to be valued in itself but for what, in certain forms and for certain purposes, it can support. We need power to accomplish and enable many good, some indispensable, purposes, but it must be tempered and channeled. Separations of certain sorts are important sources of such tempering and channeling, but they are not the only ones and are not to be applauded merely because separation is accomplished. If separation disintegrates sources of salutary power (e.g., for peacekeeping or enforcement of bargains), or if it leads to new sources of “autistic corporatism” among newly released and then independent subordinates, such as judges in post-despotic conditions (Holmes 2004, p. 9), or to state failure, we should not applaud. In any event, there is Montesquieu’s point, that mixing and blending—distributing—are more important than separation (see Craiutu 2012, p. 49). I do not believe that Braithwaite would disagree with any of this, and he certainly shares my hostility to arbitrary power, but I fear that putting separation front and center might mislead. However, I do believe that we would gain greatly by following his suggestion that the law be viewed, not as the always-necessary centerpiece of power-tempering policy to which other measures are inferior or supplementary addenda, but as one implement among several, of potentially unique importance in some respects and circumstances, but dependent for its success on many other things, and perhaps not more important for the achievement of its own goal than they. That in no way diminishes the importance of the ideal that the rule of law traditions I have mined here uphold, nor does it suggest that law is unimportant. But it might enable us to see its importance in (variable) perspective(s), give due weight to other phenomena that might need enlisting to serve such goals, and release us from the hold of a mantra that in its modish ubiquity 224 Krygier threatens to obscure the valuable purposes for which it was once pushed into the fray, and instead has come to serve virtually any purpose you might want to name. 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 ﬁrst draft of this article was delivered at the inaugural INFAR conference: Changing Narratives of the Rule of Law, Erasmus University Rotterdam, January 28–29, 2016; later drafts were presented to a seminar sponsored by the Center for Study of Law & Society and the Kadish Center for Morality, Law & Public Affairs, University of California, Berkeley, March 2, 2016, and the Law Schools of the Interdisciplinary Center, Herzliyah, and the Hebrew University, Jerusalem. I am grateful to the conference and seminar participants for their discussions, and to Julian Sempill and Mark Brown for their insights and comments on the written drafts. LITERATURE CITED Acemoglu D, Robinson JA. 2012. Why Nations Fail. New York: Crown Bus. Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh, (2011) 5 S.C.C. 29 [65] Aristotle. 1988. The Politics. Cambridge, UK: Cambridge Univ. Press Benton L. 2002. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge, UK: Cambridge Univ.
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and thereby deepen our understanding of the law ﬁrm as a unique organizational form. 459 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 Research on law ﬁrms as organizations has largely grown up in literatures that rarely, if it all, speak to one another in sustained ways. Whether drawing from economic, ecological, network, or neo-institutional frameworks, organizational scholars often use law ﬁrms as sites for research without necessarily considering the unique qualities of a professional ﬁrm (for example, their ethical responsibilities or the type of legal work they perform). Legal scholars, meanwhile, largely focusonthelegalcharacteristicsoflawﬁrmswithoutexamininghowtheir organizationalstructures or broader environments inﬂuence their behavior. Dialogue between these approaches can add signiﬁcant theoretical grist to the organizations literature by identifying how the rules of different ﬁelds inﬂuence organizational behavior, while at the same time deepening legal scholarship by situating study of the law ﬁrm in broader theoretical discourses. In this article I review the scholarly literature on organizational theory as it has been applied to private corporate law ﬁrms. These ﬁrms are recognized as the most prestigious sites of legal practice, their lawyers are among the wealthiest and most powerful in the profession, and they provide services to the highest-proﬁle corporate clients. I survey research on the development of the corporate law ﬁrm as a particular kind of organizational form, the changes in these ﬁrms resulting from their broader organizational environments, and the ﬁrm as a network of connections among lawyers and among lawyers and their clients. I then connect these bodies of research to the sociology of the professions and suggest ways that each approach can beneﬁt from a deeper interaction. There are multiple, speciﬁc reasons for situating the study of these ﬁrms in the broader context of organizational theory. First, a key proposition in much of organizational theory concerns the primary inﬂuence of the broader ﬁeld in which an organization is situated, including other relevant organizations and regulatory structures (DiMaggio & Powell 1983, Fligstein & McAdam 2012, Granovetter 2005). The ﬁeld in which law ﬁrms sit is unique in that they are regulated in such a manner so as to maximize their professional status (forbidding nonprofessional ownership and prohibiting noncompete agreements) while sustaining ﬁercely competitive markets largely oriented toward large private corporate clients (Regan 2002). In addition, the study of any profession without consideration of professional organizations is necessarily incomplete, because socialization into professions is controlled almost exclusively through organizations. In the legal profession, most lawyers’ initial points of entry are through a legal organization, be it a government ofﬁce, a public interest organization, or the most common initial employer: a law ﬁrm. Many lawyers spend at least a portion of their careers in law ﬁrms or dealing with ﬁrm lawyers, and these organizations in turn shape their careers and their understanding of the profession (Heinz et al. 2005, Kagan & Rosen 1984, Patton 2005). Although law ﬁrms have been the subjects of many important works of social science research, this review does not attempt to review all such studies. I do not assess the literature on stratiﬁcation within the legal profession, though the law ﬁrm has been a fruitful site for such research (Chiu & Leicht 1999, Hull & Nelson 2000, Kay & Gorman 2012, Ladinsky 1963, Payne-Pikus et al. 2010; see Kay & Gorman 2008 for an excellent review of the literature on gender and the legal profession). Nor do I survey the literature on lawyer satisfaction and lawyer career mobility, though quite obviously the large law ﬁrm is a major inﬂuence in both areas (Dinovitzer 2011, Dinovitzer & Garth 2007, Kay & Wallace 2010). This review also does not address the literature on lawyers in nonlegal organizations, who individually perform within organizations the tasks of boundary deﬁnition and role construction that law ﬁrms perform on an institutional level (Chayes & Chayes 1985, Edelman & Suchman 1999, Nelson & Nielsen 2000). Instead, I focus primarily on work from the perspective of organizational theory regarding the corporate law ﬁrms that developed in 460 Kluegel the United States during the twentieth century and underwent spectacular growth over the last 30 years. In the sections that follow, I deﬁne the corporate law ﬁrm as a unique type of organization and discuss its structure and position in the economy. I then
summarize each of the major organizational theoretical perspectives (which I broadly group as economic, environmental, network, and neo-institutional) and assess the literature on law ﬁrms using these perspectives. I next brieﬂy review the prominent theories of the professions and show how those theories connect to different organizational perspectives and inform their models of law ﬁrm behavior. My conclusion identiﬁes potential areas of further research and argues that the study of the law ﬁrm as a professional organization necessarily requires an exploration of the interaction between the professional project and the organizational ﬁeld. THE BIRTH OF THE LAW FIRM AS A NEW ORGANIZATIONAL FORM The multimember law ﬁrm ﬁrst emerged as an organizational form around the turn of the nineteenth century (Friedman 2005, Hurst 1950). In contrast to the standard professional forms of the time (solo practitioners and single-partner law ofﬁces), which were regional and handled mostly personal legal business (e.g., wills, real estate, and criminal law), law ﬁrms sprouted up in cities and handled primarily corporate work (Swaine 1948). Historians studying this period generally attribute the emergence of the law ﬁrm to the post–Civil War economic turn toward industrialization and the establishment of large corporations that elite lawyers in ﬁrms came to service (Hobson 1984). Large corporations were greater consumers of legal services than other kinds of clients, both encountering heavier litigation burdens than small businesses and engaging more frequently in legally demanding ﬁnancial transactions, such as railroad mergers (Pinansky 1986). Thus, the implicit conclusion of these historical accounts is that client demand for the services of the top practitioners increased so dramatically that they had no choice but to combine forces with other established practitioners to satisfy these new corporate clients.1 By the middle of the twentieth century, the corporate law ﬁrm was well established as the most prestigious, if not the most common, organizational setting for the practice of law. Examining the legal profession in mid-twentieth-century American society, C. Wright Mills (1951, pp. 122–24) adopted a functionalist explanation—the societal shift to a “new economy of the big corporation”— for the development of the modern law ﬁrm. For Mills, the rise of the large industrial corporation was responsible for the stable of “three or four hundred metropolitan law factories specializing in corporation law and constituting the brains of the corporate system.” Erwin Smigel (1969) conducted the ﬁrst in-depth study of the modern law ﬁrm in The Wall Street Lawyer, which identiﬁed several core organizational features of the ﬁrm—specialization by practice area, a team system for handling a client’s matters, a formalized partnership structure with identiﬁable management, a clear power hierarchy between partners and associates (with power among the partners distributed based largely on control of business), and a path for promotion to membership in the ﬁrm. In his account, Smigel was struck by the “looseness” of the organization, particularly in comparison to other corporations of similar size. Smigel theorized that one of the factors that allowed for such an informal organization was what he termed “professional 1Aside from the preceding references, there is simply not much scholarship on the law ﬁrm’s initial emergence from the primordial swamp. Scholars know that law ﬁrms arrived on the scene concurrent with the rise of the corporation, the birth of the ﬁnance sector, and the ﬁrst major wave of consolidation—but correlation does not equal causation, and, as we see, theories regarding the development of professions and the emergence of organizational forms cast some doubt on this rational-functional explanation for the birth of the law ﬁrm. www.annualreviews.org • Firm as Nexus of Organizational Theories 461 bureaucracy”—rules of conduct that are formed outside of the organization but necessarily become part of the organization itself. Thus, Smigel anticipates later institutional theory by hypothesizing a relationship between characteristics of an organization’s ﬁeld—in this case, the existence of a professional association regulating practitioners and enforcing jurisdictional boundaries—and the structures that the organization adopts. THE MODERN CORPORATE LAW FIRM Today, the typical corporate law ﬁrm is divided into two major practice areas: transactional and litigation (some practices, like bankruptcy or intellectual property, straddle this divide), with each of those further divided into areas of specialization. The services that large corporate law ﬁrms provide are tailored to assist mature businesses in navigating their legal environment. Broadly speaking, the practice areas of corporate law ﬁrms are designed to further three goals: protecting the client’s market share, maintaining the client’s access to capital, and minimizing the client’s regulatory or litigation losses. As such, most large ﬁrms offer a similar menu of specialized practice areas: intellectual property and antitrust litigation (protect market share); mergers and acquisitions,
capital markets, and structured ﬁnance (access to capital); and class action/mass tort defense, tax, insurance, and securities fraud/white collar defense (minimize losses). The focus in each of these practice areas is on large-scale matters where the client is less sensitive to price concerns and thus where the law ﬁrm can maximize proﬁts, such as multibillion-dollar transactions, “bet the company” litigation, or securities lawsuits/government investigations where the company (or its directors and ofﬁcers) are at risk. Much as in Smigel’s day, these corporate law ﬁrms generally hire lawyers in large cohorts straight out of law school and then have those lawyers work a period of several years as salaried associates before becoming partner, which traditionally entails receiving an equity stake in the ﬁrm (this is called the Cravath system, named after a market-leading law ﬁrm). In this system, most attorneys either leave or are ﬁred prior to achieving membership in the ﬁrm, as ﬁrms loosely adhere to an up-or-out policy of associate promotion and retention (Gilson & Mnookin 1990). However, deviations from this ideal type, even among well-established ﬁrms, have become more common in recent decades. Large ﬁrms have begun to hire established attorneys from other ﬁrms (lateral hires) in increasing numbers (Henderson & Bierman 2009). In addition, law ﬁrms have expanded their range of positions in the ﬁrm beyond associates and partners to include permanent nonequity positions for attorneys who do not win the prize of partnership but who still retain value to the ﬁrm (Galanter & Henderson 2008, Gorman 1999). Even with these developments, corporate ﬁrms at the top of the market generally adhere to the up-or-out promotion to partnership model. The retention of the partnership structure is particularly interesting, given the startling expansion in the size of these ﬁrms over the past half-century. In 1960, the largest ﬁrm in the country had 125 lawyers, and only 20 ﬁrms had more than 50 attorneys (Fox 2008). By 1983, the average size of the top 100 law ﬁrms was roughly 217 attorneys (Gilson & Mnookin 1984). And in 2012, the average size of the top 100 ﬁrms had grown to roughly 880 attorneys, and the largest law ﬁrm employed 3,800 lawyers (National Law Journal 2012). To simply describe the functions, practices, and growth of the modern law ﬁrm, however, fails to fully explain these features. (It brings to mind Dylan Thomas’s line about children’s science books that would tell you “everything there was to know about the wasp... except why.”) Organizational scholars representing distinct research programs have used law ﬁrms as their object of study—either to explain the law ﬁrm and its development as an organizational form or to test organizational theories using law ﬁrms as a site for research. I now turn to these theories, each of 462 Kluegel Table 1 Organizational theory perspectives on the law ﬁrm Theoretical framework Actor rationality Participants Goals Economic Rational Actors within ﬁrms Efﬁciency Environmental Mostly rational, limited information during times of exogenous shock Firms Clients Other ﬁrms Educational system Survival, innovation Network Shaped and bounded by relational commitments Actors within ﬁrms Firms Clients Other ﬁrms Educational system Exchange, trust Institutional Reality as a social construction, culturally contested and shaped by normative commitments Actors within ﬁrms Firms Clients Other ﬁrms Educational system Legal regulations Professional norms Other institutions Legitimacy, status which I explain in detail below. They are roughly grouped as economic (rational, exchange-based), environmental (resource dependence, organizational ecology), network (external and internal ties, intraﬁrm embeddedness), and institutional (organizational legitimacy, isomorphism, conceptions of control, rules of the ﬁeld) theories of organizational behavior. I group these theories in this manner, and in this order, for two reasons. First, they are arranged from most reliant on an assumption of actor rationality (in the classic rational utility-maximizing actor of the economic models) to least reliant (as with the taken-for-granted socialization model of institutional theory). Second, they are also ordered from methodologically individualist perspectives (that of the economic incentives of the individual actors that make up an organization) to social-level perspectives (that of the community of institutions, organizations, actors, and logics that make up an organizational ﬁeld). Table 1 summarizes these groupings along these dimensions. ECONOMIC THEORIES OF THE LAW FIRM The traditional economic theory of the law ﬁrm, initially articulated by Karl Llewellyn (1934), posits that �
��rms are the product of a simple exchange relationship between older attorneys and newer attorneys. Partners, who are generally older and more established, have more clients than time available to service them, whereas younger associates have time but have fewer clients to service. Thus, each party makes their contribution, with the associates giving their time (and surplus fees) to the partners in exchange for a salary and a future shot at partnership. Implicit in this theory are all the traditional assumptions about social behavior common to classical economics— utility-maximizing actors, shared perceptions of the social world, and rational informed decision making. Scholars have used this rational economic model of the law ﬁrm either to criticize the “law factories” it produced (Mills 1951) or as a baseline model of ﬁrm behavior to further develop with www.annualreviews.org • Firm as Nexus of Organizational Theories 463 added considerations and nuances (Galanter & Palay 1994, Gilson & Mnookin 1984, Ribstein 2010). One of the ﬁrst major theories to emerge from the legal academy regarding the organization of the modern law ﬁrm was portfolio theory—the idea that ﬁrms add attorneys and practice areas to hedge against the loss of a client or an economic downturn in a particular sector (Gilson & Mnookin 1984). In this model, the agglomeration of numerous specializations within a single ﬁrm is a rational response to market uncertainty—a ﬁrm’s bankruptcy practice as something like insurance for a ﬁrm’s transactional attorneys. Gilson & Mnookin (1989, 1990) also explain the associate-partner structure of a ﬁrm as a rational response to uncertainties regarding human capital, arguing that the monitoring period prior to partnership serves as a way for partners to evaluate and incentivize attorneys, whereas the up-or-out system represents a credible commitment to associates that they will not be exploited indeﬁnitely. This theory has been recently expanded to explain why large law ﬁrms have advantages in maintaining their reputations (more repeated interactions) and prefer proﬁt-sharing among partners (insurance against shirking) (Iacobucci 2012). By far the most prominent economic-oriented theory regarding the organization and growth of the large law ﬁrm was advanced by Marc Galanter, who posits that the ﬁrm’s management of human capital is the driving force behind its organizational form (Galanter & Palay 1994). In Tournament of Lawyers, Galanter & Palay (1994) argue that the promotion-to-partner tournament prevents associates who have accumulated human capital from gaming the system by shirking work, leaving the ﬁrm, or stealing clients. However, the tournament itself generates internal pressure to grow: So long as the number of promotions exceeds departures from the partnership, each promotion to partner will lead to net increases in both the number of partners and the number of associates at the ﬁrm. Because the promotion percentage is constant and the associate-to-partner ratio is constant or increasing, the ﬁrm’s percentage growth rate will be constant (exponential) or increasing (faster than exponential). (Galanter & Palay 1994, p. 107) Galanter’s tournament theory remains a popular explanation for law ﬁrm behavior (Kordana 1995, Rebitzer & Taylor 2006), even as the promotion-to-partner tournament has been modiﬁed in ways such that it no longer ﬁts the model—such as softening the up-or-out requirement for advancement and creating nonequity positions for senior attorneys (Galanter & Henderson 2008, Gorman 1999)—and even though empirical evidence supporting a logical mathematical function of ﬁrm growth remains largely nonexistent (Heinz et al. 2001, Nelson 1988, Wilkins & Gulati 1998). Indeed, the mass layoffs of associates following the ﬁnancial crisis suggest that ﬁrms view the tournament as something less than an imperative and do not necessarily consider young associates a critical resource (Burk & McGowan 2011, Henderson & Bierman 2009). Ribstein’s (2010) “reputational bonding” theory represents a more recent entry into economistic theories of the ﬁrm, positing that the law ﬁrm performs a signaling function in the market for legal services, which in turn enables rational actors to avoid inefﬁcient transaction costs (see also Akerlof 1970, Spence 1973). Ribstein argued that where the reputational beneﬁts of the ﬁrm are greater for any given lawyer than their individual reputations, the lawyer will associate with the ﬁrm as a means of legitimating and vouching for their work. As a result, ﬁrms attract more lawyers, whose (presumably high-quality) work reinforces the ﬁrms’ reputations and
contributes to their long-term growth. Other scholars have lent support to this view, such as Wilkins et al. (2011), who report that many law ﬁrms function more as networks of cobranded cooperative teams than as integrated ﬁrms. 464 Kluegel Although this review focuses primarily on sociolegal and organizational scholarship that has incorporated this rational economic framework into its analysis of ﬁrms, it should be noted that professional partnerships are a fertile object of study in the economic literature.2 One study of specialization in law ﬁrms concludes that, contrary to Gilson & Mnookin’s portfolio theory, “agents form partnerships because specialization requires sharing opportunities” (Garicano & Santos 2004). Another economic explanation for the organizational structure of law ﬁrms is that partnerships are necessarily forced to be more selective in hiring because of their proﬁt-sharing structure, and that selectivity serves as a signal of quality to potential purchasers of legal services who lack full information (Levin & Tadelis 2005; but see Wilson 2012 for a challenge to this view). While these works add needed nuance to the classical economic model, they share a common rationalist explanation whereby ﬁrm structures (in particular, the partnership arrangement) arise to address problematic market inefﬁciencies, and generally underplay broader environmental, social, or legal factors in ﬁrm development.3 THE FIRM AS A PRODUCT OF ITS ENVIRONMENT Environmental perspectives on the law ﬁrm move beyond the analytic focus on individual ﬁrm dynamics to view legal organizations as members of a larger population of legal organizations. Consequently, scholars employing these perspectives to study law ﬁrms focus on (a) how these organizations respond to changes in their resource base and (b) how these organizations compete with the other organizations that share their environment. The Resource Dependence of Law Firms Resource dependence theory extends John Donne’s “no man is an island” mantra to organizations, holding that organizational adaptation is often a product of exogenous changes to the resource bases that organizations rely upon (Pfeffer & Salancik 2003). Law ﬁrms are certainly no exception to resource dependence, as they are ﬁnancially dependent on the organizations that they service; that is, their success or failure depends not only on their immediate environment (their internal demography and their competitors) but also on the environmental conditions of the large corporations that they serve. Firms also rely on the supply of lawyers from elite schools, and in periods of high competition and relative scarcity of such elite graduates, law ﬁrms have adapted by changing their personnel structures (e.g., keeping permanent associates on in nonequity roles or hiring graduates from less prestigious law schools into staff attorney positions) (Sherer & Lee 2002). Sociolegal scholars who focus on the relationship between clients and lawyers—instead of on transactional models of the ﬁrm—have also embraced a version of resource dependence. Heinz et al. (2005) see the growth of the mega-ﬁrm as a transformation driven largely by growth and consolidation of corporate clients, who over time have grown bigger and are more likely to be ﬁnancially oriented rather than industrial in nature. Corporate law ﬁrms well placed during this economic shift “had a substantial competitive advantage in capturing the resultant demand” and grew, while the shrinking pool of clients led directly to the failure of other ﬁrms (Heinz 2009, Heinz et al. 2005). Likewise, changes in compensation within the ﬁrm are directly related to the 2Many thanks to an anonymous reviewer for pointing this out. 3For example, Levin & Tadelis (2005) conclude from their model that law ﬁrms can use noncompete agreements to control human capital investments, when in fact such agreements are legally prohibited. www.annualreviews.org • Firm as Nexus of Organizational Theories 465 increased demand for graduates of elite schools (a necessary resource for these ﬁrms, `a la Sherer & Lee 2002). Indeed, there is a fair amount of evidence for this narrative, especially in light of macroeconomic changes increasing the concentration of wealth and the rise of ﬁnancialization (Krippner 2005), which are consistent with demands for legal services from highest-status ﬁrms capable of handling complex ﬁnancial transactions (Olson 2014). The Ecological View of the Law Firm From an ecological perspective, the organizational behavior of ﬁrms depends not only on the status and control of the ﬁrm’s resources but on the ﬁrm’s efforts to adapt to the environmental conditions of the organizational ﬁeld as a whole (Hannan & Freeman 1993). Organizational ecology theorists apply biological concepts—birth, mortality, extinction, equilibria—to communities of organizations (Cook & Ormerod 2003). In this view, law ﬁrms are not just free agents offering services to clients
but must actively position themselves within their environment to survive. Thus, law ﬁrms that by virtue of their competitive environments are in a more feeble state and face a greater chance of mortality adapt by offering ﬁrm attorneys greater chances for advancement to partnership (Phillips 2001). Similarly, when new law ﬁrms are founded by prominent members of well-established ﬁrms, the life chances of the parent ﬁrm decrease relative to other established ﬁrms, and the life chances of the new ﬁrm increase relative to other new ﬁrms (Phillips 2002). THE FIRM AS A NETWORK Network theory, as posited by its adherents, offers a theory of action somewhere between the undersocialized atomistic utility-maximizers found in much economic theory and the oversocialized dupes merely following cultural scripts found in much sociological theory (Granovetter 1985). Instead, concrete relations (connections or ties) between actors form social structures that allow for diffusion of information and norms, facilitate trust and exchange, and shape individual perceptions. Network analysis has been criticized for not offering much in the way of explanation for how networks form and for not specifying the causal mechanisms by which these ties affect organizational behavior (Salancik 1995). Yet, the network perspective has been helpful in revealing both the internal structure of the profession and the internal structure of law ﬁrms themselves. Networks of Lawyers Early network analysis was used to study the legal profession in Chicago and revealed the social and professional connections that comprise the different hemispheres of the bar (Heinz & Laumann 1982, Heinz et al. 1997). According to these groundbreaking studies, the bar was composed of two main practice settings: individual and small business clients (which tended to be poorer) and corporate clients (which were represented by large law ﬁrms). Further, the identity of a lawyer’s client base was the primary determinant of the lawyer’s social and professional network. By positing the profession as a network, Heinz and his coauthors were able to provide support for the proposition that a law ﬁrm’s main resource and largest inﬂuence were the corporate clients that they served. Lazega (2001), informed in part by resource dependence theory, used the mapping of ﬁrm networks to show the interdependence of ﬁrm lawyers (even though these lawyers were often competing for status with each other) and traced how those partners who could leverage their status in favor of policy changes contributed to the cohesion of the ﬁrm, even within law ﬁrms too large for any one person to effectively manage. Briscoe & Tsai’s (2011) network analysis of a law 466 Kluegel ﬁrm after an acquisition reveals that organizational change can lead to new client-sharing networks between central actors in the acquired and acquiring ﬁrm—but at the cost of disrupting existing networks in the acquired ﬁrm. A network study of the Nashville legal industry found long-lasting advantages to law ﬁrms that maximized ties between themselves and other ﬁrms, hypothesizing that they were channels for the diffusion of new information and new practices among lawyers (McEvily et al. 2012). An individual lawyer’s network ties are important as well, as the presence of a high-status lawyer within an individual lawyer’s network increases the social capital of that lawyer (Kim 2009), a ﬁnding that may explain the draw of joining a high-status law ﬁrm as a junior attorney even when the expected development of human capital at such ﬁrms is low. Finally, Burk & McGowan (2011) offer a theory of law ﬁrm structure and growth as functions of a ﬁrm’s “internal referral network” that allows attorneys to share information, refer clients, and pool skills among the lawyers in the ﬁrm. As the internal referral network grows, it provides increasing beneﬁts to the ﬁrm consistent with Granovetter’s (2005) thesis that economic performance can increase with an integrated network improving information and trust. The Client Network Network theorists also have moved outside the law ﬁrm to examine the structural embeddedness of organizations in client networks, speciﬁcally exploring how ties with clients foster trust between market participants and facilitate ongoing relationships (Uzzi 1996, extending Granovetter 1985). With regard to the legal market, strong ties between ﬁrms and clients allow for greater control and less uncertainty in setting prices for legal services (Uzzi & Lancaster 2004). Firms that forge strong ﬁrm-wide ties with clients are likely to maintain stable relationships over the long run, compared with ﬁrms whose client ties reside at the level of the individual lawyer or department, even with increases in individual lawyer mobility (Wilkins et al. 2011). THE NEW INSTITUTIONALIST VIEW OF THE LAW FIRM The new institutionalist perspective deviates from each of the preceding theories, even as it often
borrows from all three. In contrast with the economic theorists, who are preoccupied with the technical environment of the law ﬁrm (and assume rational actors seeking efﬁciency within that environment), new institutional theorists instead examine the institutional environment of the law ﬁrm (and posit actors seeking legitimacy and support within conceptions of appropriate action provided by the environment) (Scott 1987). And in contrast to the resource dependence or adaptive perspective—whereby rational ﬁrms constantly change to adapt to changing environments—the new institutionalism concentrates on how ﬁelds become structurated and create homogeneity among organizational forms (perhaps even when organizations should be adapting to environmental changes) (DiMaggio & Powell 1983). Finally, the new institutionalism is more concerned with the rules of the game and the relations within and across ﬁelds than with the network structure of the ﬁeld itself—even though institutionalists generally acknowledge that networks are an important component of understanding how ﬁelds form and reproduce themselves. The Myth and Ceremony of Law Firms As we have seen, many legal scholars ironically view the law ﬁrm much as earlier organization scholars perceived the corporation: as a scientiﬁc-rational organization driven by efﬁciency concerns, with brief forays into inefﬁciency or instability caused by human frailty or irrationality. The new institutionalism compels scholars to step back from rational assumptions and accept www.annualreviews.org • Firm as Nexus of Organizational Theories 467 that law ﬁrm decision making encompasses multiple motivations and meanings. From the new institutional perspective, the professional status of these organizations necessarily prevents ﬁrms from pursuing claims to legitimacy through technological rationales (professions rely on unique and quasi-mystical claims to complex knowledge, and efﬁciency narratives undercut those claims) or through adoption of new management techniques (as the rules of the profession limit the role of management to maintain exclusivity of practice and control over practitioners). Instead, professional ﬁrms must shape their responses to their environment by complying with preexisting institutionalized professional norms (Leicht & Fennell 1997). Thus, ﬁrms maintain cultural conceptions of status through symbolic acts—the hiring of only graduates of elite institutions, the tournament to achieve partnership, proﬁt-sharing among colleagues—that are decoupled from whatever rational origins they might have had (rational myths) and are used because they carry legitimacy within the ﬁeld (as signiﬁers of selectiveness and exclusivity) (Meyer & Rowan 1977). This system of hiring elite graduates and putting them in a tournament for partnership thus becomes institutionalized despite no particular evidence that it is superior to any other form of lawyer hiring and promotion, and it in turn shapes the perceptions of lawyers within these ﬁrms (Wallace & Kay 2009). From an institutional perspective, therefore, elite legal graduates are not necessarily a resource upon which the ﬁrm depends, contrary to the assumptions of Galanter & Palay (1994) and Sherer & Lee (2002). Indeed, it is not clear why the ﬁrm would collapse upon admitting a different batch of untrained lawyers, or even upon hiring no new legal graduates whatsoever and simply picking off the “losers” of the other ﬁrms’ tournaments. Instead, the tournament system is a sign of legitimacy used to maintain the resource upon which these ﬁrms truly rely (the ﬁrm’s clients). And once a law ﬁrm has established a taken-for-granted status the ﬁrm must be careful to adhere to norms regarding membership in the high-status community and loyalty to their clients in order to maintain its legitimacy (Phillips et al. 2013). Conceptions of Control and Law Firm Culture Another facet of institutional theory is that normative beliefs about the practices, goals, and power structures of organizations—“conceptions of control”—are subject to change, and therefore become sites for competition during periods when ﬁelds are unsettled (Fligstein 1990). Although changes in these conceptions, or archetypes, can be initiated by external shocks—a nod to resource dependence and ecological theories—the ultimate resolution of these power struggles depends on how the actors in the ﬁeld interpret and respond to them; thus, different professional organizations can respond differently to the same changes in their environment (Malhotra et al. 2006, Pinnington & Morris 2003). Within law ﬁrms, these shared understandings about how things are done and who has power are generally referred to as a ﬁrm’s culture (Tolbert 1988, Wallace 1995), and these conceptions are subject to both path dependence—the “sedimentation” effect whereby new conceptions build on old conceptions rather than displace them (Cooper et al. 1996, Empson et al. 2013)—and contestation by insurgents within and actors external to the
ﬁrm (Chambliss 2010). For law ﬁrms, such contestation has been framed as a culture clash between professional norms committed to the traditional partnership form with its diffuse loci of power and managerial logics that use the insurgent-managed professional form, typiﬁed by the centralization of managerial authority (Greenwood & Suddaby 2006, Muzio & Kirkpatrick 2011). From some perspectives, this culture conﬂict represents an existential threat to the law ﬁrm as managerial logics threaten to undermine professional norms and ﬁrm loyalty, perhaps even threatening the structure and status of the profession itself (Empson 2012, Greenwood & Lachman 1996). Recent research suggests, however, that professional norms are resilient even in the largest law ﬁrms, and much more resilient in law ﬁrms than in other professional contexts, such as accounting 468 Kluegel (Ackroyd & Muzio 2007, Pinnington & Morris 2003). Core professional norms, such as collegial decisions on the promotion of partners and control over professional work, manage to survive even in the largest ﬁrms, whereas norms less central to professional identity, such as the equal distribution of ﬁrm proﬁts and increases in partner-associate leverage ratios, are abandoned in favor of market logic (Faulconbridge & Muzio 2008, Sherer 1995, Tolbert & Stern 1991). Indeed, a major critique of this archetype theory of managerial change is that it presents the change to professional management as an evolutionary process rather than a conception of control subject to contestation (Faulconbridge & Muzio 2008, Fligstein 1990). Institutional Isomorphism among Law Firms According to neo-institutional theories, organizations can come to take the same form for reasons either competitive (i.e., economic) or institutional (i.e., social) (DiMaggio & Powell 1983). DiMaggio & Powell identify three distinct kinds of institutional isomorphism: coercive, normative, and mimetic. Coercive isomorphism results from imposition of common regulations on an organizational ﬁeld, and I discuss this phenomenon in the next section on the legal environment of law ﬁrms. Normative isomorphism, by contrast, is the result of the dissemination of organizational structures and practices through professionals in organizations. However, because law ﬁrms are by deﬁnition composed exclusively of professionals, it is not at all clear how normative isomorphism would inﬂuence legal organizations. Indeed, the primary mechanism by which normative isomorphism operates—individuals within organizations leveraging their professional status to shape organizational behavior/structure—would be impossible in an organization where everyone possesses the same professional status. Mimetic isomorphism offers both a clearer explanation for the observed organizational homogeneity in the legal ﬁeld and a way to account for the effect of power disparities within the profession. According to this theory, during periods of uncertainty organizations look to their most respected peers and—consciously or unconsciously—adopt their forms, practices, or goals as a means of trying to maintain legitimacy in their ﬁeld (Haveman 1993). Mimetic isomorphism thus provides a powerful explanation for why law ﬁrms have coalesced around certain practices shared by market-leading law ﬁrms (e.g., the Cravath partnership structure, lock-step compensation systems, or choice of schools to hire from). Another potential source of mimetic change for law ﬁrms comes from the ﬁrms’ interactions with their clients (who are often themselves professional organizations, such as investment banks or hospitals). Caplan’s (1994) study of the law ﬁrm of Skadden, Arps, Slate, Meagher & Flom LLP4 details how Skadden’s organizational focus changed along with the focus of its clients—for example, opening overseas branches as the merger-and-acquisition work that formed the ﬁrm’s corporate practice increasingly serviced foreign or multinational companies. This isomorphism also involved a corporeal dimension as the ﬁrm opened new ofﬁces to physically resemble the multinational structure of the client. At the same time, Skadden partners invoked the specter of competitor ﬁrms opening overseas ofﬁces to justify their own expansion (Caplan 1994). The sources of mimetic isomorphism can also carry a temporal dimension: The ﬁrst major wave of overseas law ﬁrm expansion occurred at the behest of clients, whereas the second wave unfolded 4Law ﬁrms are generally named after prominent members of the ﬁrm (past and present); this is a function both of state bar requirements that law ﬁrms avoid names that mislead their clients (e.g., “Obama Law Group” would be prohibited) and of the professional custom to keep ﬁrms named after their founders
. Deciding how to rename ﬁrms after mergers or lateral hires is often a balancing act between professional decorum and organizational need for retention of brand capital. www.annualreviews.org • Firm as Nexus of Organizational Theories 469 as a costly scramble to maintain legitimacy in the face of peer law ﬁrm international expansion (Spar 1997). The Legal Environment of Legal Organizations A ﬁnal insight of new institutional theory resides in the primacy of the organizational ﬁeld, especially regulatory structures, for understanding organizational operations (Powell & DiMaggio 1991). Regulations on actors in an organizational ﬁeld (imposed by either the state or other institutions within the ﬁeld itself) are critical in determining the structure of the organizational ﬁeld and, by extension, the actions available to the organizations (Zucker 1987). The organizational ﬁeld of the modern law ﬁrm is no different and features several unique regulatory characteristics that have shaped the development of the ﬁrm. First, law ﬁrms, unlike many other organizations, are speciﬁcally forbidden from placing restrictions on members leaving the organization and cannot use contracts to ameliorate losses from employees leaving to join a rival ﬁrm or to start up their own practice (Ribstein 1998). The ethical codes of legal practice bar noncompete and nonsolicitation agreements between ﬁrms and attorneys—under the theory that such agreements infringe on a client’s right to select the representation of their choice—and courts have consistently enforced this principle against any contract seen to inhibit the free movement of lawyers from and between ﬁrms (Stroud 2001). The popularity of the up-or-out model of the Cravath system can be seen as a response to the threat of client theft (Rebitzer & Taylor 2006). Second, legal ethics regulations prohibit ownership of law ﬁrms by nonlawyers, and therefore neither investors nor managers can be given an equity stake in a law ﬁrm (Nelson 1988). In practice, this means that lawyers determine the organizational form of their ﬁrms (with the most powerful lawyers in the ﬁrm having the greatest say), and likewise lawyers dominate the formal managerial positions within a law ﬁrm (save the specialized positions over which other professions have made successful jurisdictional claims, like accounting or human resources). Finally, conﬂict of interest rules prohibit law ﬁrms from taking clients whose interests might be opposed absent an onerous process involving both client waiver and ﬁrm restructuring. Unlike accounting, in which ﬁrms are not prohibited from doing business for and even advising competitors (and as a result, the ﬁeld is dominated by relatively few enormous ﬁrms), there is a limit to the amount of business law ﬁrms can take, and consequently there are limits to law ﬁrm consolidation by merger (Fischel 2000). Although it is generally true that organizations do not respond perfectly to formal legal dictates, instead operating in areas of contestation and ambiguity regarding the law (Suchman & Edelman 1996), by virtue of their expertise and position, purely legal organizations are uniquely aware of their regulatory environment (if not always compliant). From this perspective, the regulatory regime of the law ﬁrm casts doubt on accepted ecological theories of organizational inertia, including Stinchcombe’s (1965) famous observation that newness was a liability for organizations. Although this conclusion may be generally true for industrial organizations with real property and other capital assets (or even high-tech businesses that can erect barriers around their intellectual property and human capital), in the world of the law ﬁrm, there are no legal/structural impediments to remaking the ﬁrm entirely, changing its personnel or mission, and thereby inviting the risk of failure. Indeed, the relatively high recent mortality rate for law ﬁrms appears to be equally spread among young upstarts and century-old white-shoe ﬁrms (Henderson & Bierman 2009). In addition, these considerations of the legal environment carry implications for theories of organizational isomorphism. The rules regarding free movement of lawyers, combined with the eat-what-you-kill structure of the profession, mean that ﬁrms can choose to grow via lateral hiring/ﬁrm merger without a large up-front expenditure of resources (provided they can avoid 470 Kluegel Table 2 Interaction between organizational and professional theories Organizational theory Theory of legal profession Reason for law ﬁrm Economic Functional/monopolistic Efﬁciency gains Environmental Social closure Control competition Network Collegial Enable exchange, trust Institutional Contestation and control Establish legitimacy conﬂicts of interest). Firm growth, then, is a potential form of legitimacy-seeking behavior and not necessarily a consequence of success/survival in a competitive environment (c.f., Heinz et al. 2005). BRINGING THE “PROFESSION” BACK INTO PROFESSIONAL ORGANIZATIONS Aside from the literature
on the contested managerial versus professional conceptions of control within law ﬁrms, much of the organizational theory work on law ﬁrms ignores or downplays the inﬂuence of the professional project. Although it is certainly not the case that organizational theory has nothing to say about professionals—after all, a professional organization like a law ﬁrm shares many characteristics with other organizations, particularly information-oriented organizations— it is important to examine how theories of the legal profession might inform and interact with the organizational theories of the large law ﬁrm. Table 2 summarizes how these organizational theories interact with existing theories of the professions to arrive at explanations for the law ﬁrm as an organizational form. In the following section, I ﬁrst give a brief explanation of each of the theories of the professions and then show how different organizational perspectives borrow from and incorporate different theories of the professions. Classic Theories of the Professions Although there is no consensus deﬁnition of a profession, the various theories of the professions share a few general traits, including (a) knowledge and practices generally recognized as “essential, exclusive and complex” and (b) occupational autonomy (i.e., freedom from control by nonlawyers) (Forsyth & Danisiewicz 1985, p. 64; Tolbert & Stern 1991). The practice of law is considered one of the classic professions5—almost an ideal type—and as such lawyers identify these traits (specialized knowledge and occupational autonomy) as core to their professional status. There are four major theories regarding the legal profession. The functionalist perspective (traditionally associated with Talcott Parsons) holds that professional norms and structures ensure quality and efﬁciency among practitioners of essential services, which includes lawyers (Parsons 1954). The monopolist perspective on the legal profession (associated with Max Weber’s theory of “social closure”) sees the professional project as collective action to control the production and producers of law through specialized education, licensing requirements, and professional membership (Abel 1986, Weber 1978). The conﬂict perspective sees professions as the result of organized sectors of society applying their political and economic power to shelter themselves from market forces, thereby reinforcing their power (Larson 1977). Finally, institutional perspectives see the development of the legal profession as a constitutive project—not just defending jurisdictional 5Though not the oldest! www.annualreviews.org • Firm as Nexus of Organizational Theories 471 boundaries from interlopers but deﬁning their knowledge base (Abbott 1988), establishing criteria for legitimacy (Suchman & Edelman 1996), and using its unique relationship with the state to shape its environment (Halliday 1987). Theories of the Legal Profession in Organizational Theory Rational-economic theories of the law ﬁrm view organizational structure as arising out of a need to ensure (or signal) lawyer quality, which accords with either the functionalist or monopolistic perspective of the legal profession. The favorable view of the profession posits that corporate lawyers (and, by extension, their law ﬁrms) are “transaction cost engineers,” providing services that create efﬁciencies by providing intangible knowledge-based services for their corporate clients (Gilson1984,p.243;Hittetal.2001).Justaseducationandlicensingproceduresinthefunctionalist view keep unqualiﬁed lawyers out of the profession, the hiring and promotional structure of a law ﬁrm exists to weed out lawyers who do not possess the human capital necessary to adequately provide these services to corporate clients (Galanter & Palay 1994, Gilson & Mnookin 1989). However, many economic-oriented appraisals of the profession as a whole—and not just of the law ﬁrm as an organizational form—are far more critical of the monopoly on the provision of legal services by lawyers (see, e.g., Hadﬁeld 2008, citing economists, legal ethicists, and others challenging self-regulation of the legal profession). Law ﬁrms still function as rational efﬁciencymaximizers in this view (and these critics concede that lawyers play a utility-maximizing role for their clients), but they do so within a market that is artiﬁcially constrained by ethical rules. Resource dependence and ecological theories tend to side with the critics of functionalism and see the professional project as a method of achieving monopoly over a given market—creating a closed ecosystem in which lawyers and law ﬁrms can dominate as long as they can exclude competitors, such as accounting ﬁrms, banks, and consultants (Heinz et al. 2005). The rise of the large law ﬁrm creates challenges for this monopoly by widening the gap between the corporateclient and individual-client “hemispheres” of lawyers, a division that constrains collective action around a united professional project (Seron 2007). Network theory, by contrast, does not contain
theoretical assumptions about professional projects, instead testing the assumed traits of the professional. Emmanuel Lazega and colleagues (Lazega 2001, 2005; Lazega & van Duijn 1997) demonstrate, through a combination of detailed network analysis and qualitative interviews, how consultation, negotiation, exchange, and trust— the dynamics of collegiality among legal professionals—predominate in law ﬁrms. However, scholars have challenged traditional conceptions of practitioner autonomy from clients by demonstrating relational commitments to networks of corporate clients (Rosen 2010). Not surprisingly, institutional theory takes the professional project as an attempt to not just control a particular market but shape an organizational ﬁeld through, as Scott (2005, p. 130) puts it, “the ability to create and apply a set of cultural-cognitive and normative constructions that provide guidance in confronting numerous types of uncertainty [which] spills over into the regulative arena.” Unlike the functionalists or even the social closure/monopoly adherents, the new institutionalism sees the professional organization as both responding to and shaping its environment. Whereas Smigel early on identiﬁed professional values as being inculcated in lawyers through training and socialization into the profession (and therefore both widely shared and external to the ﬁrms), neo-institutional scholars argue that elites construct professional values within the ﬁeld to rationalize existing structures, which in turn take shape amid power struggles within and between ﬁrms (Fligstein 1987). Thus, in law ﬁrms, even as professional values compete with managerial values for legitimacy and control, professional values themselves are contested (Nelson 472 Kluegel CONCLUSION There is a bright future for research on the law ﬁrm as a unique type of organization. Management scholars are increasingly focusing on the professional service ﬁrm as a vibrant area of study (Von Nordenﬂycht 2010). Following Abbott (1988), these scholars view the profession as a process—“a negotiated settlement which emerges from the interactions between different actors pursuing their own institutionalization projects” (Muzio et al. 2013, p. 705)—that necessarily includes professional organizations. This line of research examines the ways professional organizations inﬂuence how professions at the ﬁeld level acquire resources, create boundaries, and redeﬁne www.annualreviews.org • Firm as Nexus of Organizational Theories 473 professional rules and values, and how professional norms shape organizations themselves (Faulconbridge & Muzio 2012, Liu 2013, Muzio & Kirkpatrick 2011). The subﬁeld also received a boost with the launch in 2014 of the Journal of Professions and Organization, a new specialty journal speciﬁcally devoted to professional service ﬁrm scholarship (Brock et al. 2014). The increasing visibility of this work presents an opportunity to apply new theoretical tools to the study of the law ﬁrm and to examine the ﬁrm from a multidisciplinary perspective. Moreover, failing to integrate these multiple perspectives can lead to trouble. In an otherwise valuable examination of the expanding role of in-house corporate counsel, Chambliss (2009) embraced archetype theory and argued that the managerialization of law ﬁrms was inevitable. Chambliss used the example of Bingham McCutchen LLP as a ﬁrm that has embraced managerial logic and reaped the rewards. However, ﬁve years after the article appeared, Bingham imploded, the victim of a revolt by the ﬁrm’s partners against “overly centralized, opaque” ﬁrm management (Triedman 2015). Bingham’s failure—which showed that violating professional norms has real consequences, that the rules of the ﬁeld inﬂuence organizational power, and that contestation for control is an ongoing process—suggests that a broader institutional perspective is needed. In the end, law ﬁrms are neither a collection of autonomous professionals nor an organization like any other. Studies of ﬁrms show that the professional project carries with it norms of behavior and rules of practice that constrain and shape organizational behavior, while organizational structures mediate and reshape professional goals and values. Organizational theorists, management scholars, legal academics, and sociologists of the professions each have valuable theoretical and empirical lenses with which to understand the law ﬁrm, and ought to be brought together in future work. 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 wish to thank Catherine Albiston, Lauren Edelman, Calvin Morrill, and an anonymous reviewer for their incredibly helpful comments on drafts of this essay. Further thanks to Heather Haveman for introducing me to the study of organizations in the ﬁrst place. All errors are my own. LITERATURE
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environmental problems materialize across the globe. Despite early success in regulating easily identiﬁable single sources of pollutants from large industries, law alone has struggled to address the signiﬁcant complexity and dynamism inherent to modern environmental and social problem scales, epitomized by the challenges of global climate change (Chafﬁn & Gunderson 2016, pp. 81–82). Indeed, the fact that the world’s biodiversity, climate, land, air, ecosystems, and water all continue to face serious peril (UNEP 2012) is for many onlookers a telling indictment of the failure of environmental law to evolve in tandem with the complexity and severity of environmental challenges at all levels, both ecological and jurisdictional (Biermann & Pattberg 2012). Signiﬁcant scholarly effort has accordingly been exerted to understand, identify the ﬂaws in, and reform environmental law in recent decades. A deﬁning feature of this literature has been a gradual shift in thinking away from a focus simply on law to one on regulation and, more recently with the restructuring of the regulatory state, new governance. We treat these as three points on a spectrum. At one end is highly speciﬁc state-based law, that which is promulgated by parliament, implemented by agencies, and interpreted by the courts. Regulation is a broader category and includes much more ﬂexible and innovative forms of social control. For example, it may involve persuasion, self-regulation, and coregulation; it may use both commercial interests and nongovernmental organizations (NGOs); and it may invoke surrogates for direct government regulation—mechanisms that are only partially or indirectly related to state law. But it still involves the state as a central player because even mechanisms that are not reliant on legislation for their authority are negotiated directly with the state and operate in the shadow of the state. For example, Australia’s tradeable water permits, an economic instrument that relies heavily on market forces, nevertheless must operate according to statutorily deﬁned caps and trading rules that are underpinned by agency enforcement. In contrast, at the other end of the spectrum, new governance does not privilege the state, and state law is simply one node among many in a world of diffused power and responsibility. The consequence is a polycentric landscape, characterized by multiple centers in which governments and nongovernment actors at all levels (local, national, or international) seek to steer the ﬂow of events by enabling sociopolitical interactions, encouraging various arrangements for coping with problems, and distributing services among several actors (Harlow 2005, p. 144; Rhodes 1997). Although movements between law, regulation, and governance have been under way in a variety of areas, such as health, education, and security, there has been much greater and conscious experimentation with all three approaches within the sphere of the environment (Sabel & Simon 2011, p. 83). We begin this article by mapping the development and status of environmental law and regulation. We then chart where the ﬁeld is going by highlighting three important issues, namely, fostering instrument mixes through Smart Regulation, using new technologies to enhance compliance, and exploring the role and operation of the New Environmental Governance (NEG). We conclude by discussing a fundamental challenge confronting the ﬁeld, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrums. In such a short article, we have no choice but to be selective, with the result that we inescapably fail to capture some of the richness of experience and debates in the ﬁeld. For example, we focus 274 Gunningham· Holley largely on the domestic context of Anglo-Saxon jurisdictions and do not address the diversity of environmental law and governance arrangements elsewhere (on the latter, see, e.g., Mukherjee & Chakraborty 2015), although consideration is also given to related trends at the international level. Moreover, we do not consider a range of related ﬁelds and subﬁelds, such as land use planning, disaster governance, risk governance, or environmental rights. Nevertheless, this account does aim to provide a coherent and big-picture account of the status of the ﬁeld and identify where environmental law, regulation, and governance may be headed. ENVIRONMENTAL LAW AND THE STATE Modern states have a lengthy history of exercising sovereignty over natural resources within their territorial boundaries (Gess 1964; c.f. Scott 2009). It made sense, then, that Anglo-Saxon societies ﬁrst looked to the state and to the law as the primary political response to the environmental activism of the early to mid-1900s (e.g., Carson 1962). Domestically speaking, the birth of environmental law dates back to 1970, with the creation of major environmental legislation and agencies in the United States and Australia, and shortly thereafter in
Canada and Britain. Designed to prohibit or restrict environmentally harmful activities (particularly pollution), these laws used command-and-control mechanisms that identiﬁed an environmental target, such as a limit on emissions of a pollutant to water or the air (the command), with penalties that would be imposed if this target was not met (the control). Direct regulation of this type echoed earlier command and control conservation policy (e.g., the creation of Yellowstone in 1872, see Andrade & Rhodes 2012; Holling & Meffe 1996) and broader notions of the active state promoted by the US New Deal and Keynesian thinking (Keynes 1933). However, environmental legislation also took on several distinctive forms. The most common involved uniform design or speciﬁcation standards (e.g., best available technology or maximum emission concentrations), which tell duty holders precisely what measures to take (rather than specify outcomes or the desired level of performance). These requirements were imposed on broad categories of activities (for example, all chemical plants of a certain type, or all scheduled industries) and enabled ﬁrms to continue to emit pollutants, but only at levels that did not breach the relevant standards. Permits and licenses were (and largely still are) the favored instrument through which such standards were to be achieved. In fact, the oldest agency, the US Environmental Protection Agency (EPA), is still using this traditional approach under the Clean Air Act to set pollution standards that address one of the most cutting-edge environmental problems, namely, carbon emissions (see US EPA 2015a). Around the same time as these domestic developments, similar events were taking place internationally. Groups of states began to mobilize and act primarily through treaty-based international rules addressing problems such as trade in endangered species and pollution from ships. These rules were to be developed and overseen by international organizations, such as the United Nations Environment Program (Kelemen & Vogel 2010). Much like the state-dominant approach at the domestic level, this international approach relied on a very Westphalian view of the world, with states believing they understood environmental problems clearly and that these problems could be deﬁned in advance and managed through largely uniform, mandatory rules (De Burca et al. 2013, p. 730). Broadly speaking, these state-centered approaches to law were relatively effective, achieving several gains in halting and reducing environmental degradation (Cohen 1986, Najam et al. 2006). Indeed, a range of ﬁndings suggest that state law approaches are the single most important driver of improved environmental performance, particularly of large industries (Gunningham et al. 2003, KPMG 1996). www.annualreviews.org • Law, Regulation, and Governance 275 Nevertheless, by the 1980s direct law was widely criticized for being inﬂexible and excessively costly. At the international level, treaty congestion and fragmentation led to claims that international environmental law was unwieldy, incoherent, and ineffective in confronting increasingly serious global environmental challenges (Najam et al. 2006, Scott 2011). Similar claims were raised at the domestic level, where the centralized and uniform nature of command and control was increasingly maligned as costly, cumbersome, inefﬁcient, and insensitive to local contextualities (Holley et al. 2012, Karkkainen 2006, Stewart 2001). A major source of these command-and-control critiques were business groups, who called for a reduction in the economic burdens that compliance with environmental law placed upon them (Hodges 1997). Adversarial enforcement by deterrence-oriented agencies, primarily in the United States, did little to allay these concerns and produced counterproductive resistance from regulated businesses and individuals (Bardach & Kagan 2002, Hawkins 1984). These critiques of direct regulation can be seriously overstated and often overlooked the emergence of more ﬂexible and cost-effective arrangements, the limited resources that prevented regulators from fulﬁlling their mandates, and even that some businesses supported these rules for their predictability and the level playing ﬁeld they provided. But the fundamental critique—that direct regulation, whatever its effectiveness, scores poorly in terms of efﬁciency and ﬂexibility— was becoming increasingly pertinent as regulators sought to expand their reach. As they did so, it became apparent that the relative strengths and weaknesses of direct law vary substantially with context. In broad terms, the more complex the environmental problem, the more obvious become the limitations (and the inefﬁciencies) of direct law in addressing it. For example, it is one thing to regulate point-source pollution caused by large, homogeneous industrial facilities operating within a single jurisdiction—and as indicated above, command and control has done this reasonably well. But it is quite another to apply the same approach to pollution caused by heterogeneous enterprises, where it may prove to be an extremely costly and inefﬁcient approach, as neoclass
ical economists have been quick to point out (Stavins 2005, Sunstein 1990). Equally, direct law is a crude and often inappropriate tool for engaging with such complex problems as diffuse source pollution from agriculture (Gunningham & Sinclair 2005) or biodiversity loss on private land (Holling & Meffe 1996, Perrings et al. 1994). Aligned with this new mentality was a simultaneous turn toward neoliberalism, particularly in the United States and the United Kingdom. Drawing on the normative thinking of economists like Frederick Hayek (1945) and Milton Friedman (1962), neoliberalism sought to enroll others away from the center (such as businesses and civil society) by embedding market values and structures within economic, social, and political life (e.g., Osborne & Gaebler 1993). Although public opposition precluded the sort of wholesale deregulation desired by many businesses and neoliberal thinkers, environmental regulatory budgets were substantially cut in almost all jurisdictions and converted many seemingly hard-nosed legal mandates into little more than a symbolic aspirational declaration (Lazarus 2009, p. 1156; for a general discussion of other modes of nonenforcement, see Deacon 2010, pp. 807–16). Nevertheless, because environmental problems appeared to be increasing rather than going away, and because the public still appeared to value environment protection, the question for neoliberal politicians became, what was to replace or operate alongside direct law? ENVIRONMENTAL REGULATION: ECONOMIC, VOLUNTARY, AND LIGHT-HANDED REGULATION By the early 1990s, policy makers had responded to the above concerns by devising a range of less intrusive regulatory interventions that capitalized on more ﬂexible, imaginative, and innovative 276 Gunningham· Holley forms of social control. These approaches typically maintained a state underpinning but looked to engage with business and NGOs in ways that were considered more effective and efﬁcient, while also maintaining cooperation and trust of regulated actors. This was primarily achieved by accounting for, and facilitating the use of, nonstate knowledge and capacities and harnessing related motivational drivers, such as proﬁts (through internal management or market incentives), social license (through negative publicity about businesses by NGOs), and other informal sanctions (Gunningham & Sinclair 2002, p. 191). One important development was the shift toward economic regulatory instruments, such as capand-trade schemes, taxes, subsidies, offsets, and payments for ecosystem services. By inﬂuencing or mimicking the market, these approaches properly valued the environment, rendered externalities visible, and were considered far more efﬁcient than direct law because they provided industry with the ﬂexibility and autonomy to make least-cost decisions (Coase 1960, G´omez-Baggethun & Muradian 2015). Arguably the most prominent economic instrument to emerge at both the domestic and international level was cap and trade. Pioneered by the Acid Rain Trading scheme in the United States under the Clean Air Act Amendments of 1990, the cap-and-trade approach was used to establish new markets for pollutants and natural resources like water, ﬁsh, and biodiversity. Unlike free markets, a fundamental feature of these schemes was a centralized regulator who protects the environment by establishing an overall cap on acceptable pollution or resource use levels and assigns and enforces tradable rights to polluters or extractors (G´omez-Baggethun & Muradian 2015, Karkkainen et al. 2000). Having constituted the market’s architecture, the regulator leaves the rest to Adam Smith’s invisible hand, which is thought to guide rational, self-maximizing individuals to promote public interests by shifting pollution abatement and natural resources to the highest-value uses (Karkkainen et al. 2000, p. 693). Notwithstanding their theoretical attraction, in practice economic instruments were used to only a limited extent to address traditional pollution issues, in part because regulated businesses consistently opposed the introduction of taxes and charges, preferring the certainty of regulation to the uncertainty of novel approaches. However, economic instrument approaches have progressively been employed to address other, more complex environmental problems, including climate change (McKibbin & Wilcoxen 2002) and related forestry sinks (Maguire 2014), water rights and trading (Godden 2008), biodiversity (UNEP 2004), and ﬁsheries (OECD 2013). Even so, many of these approaches have often been slow to mature, confronting various challenges, including ensuring the environmental resources are fully fungible, establishing acceptable caps, developing efﬁcient trading regimes, and establishing new regulatory agencies to underpin the economic instrument (Holley & Sinclair 2012). In addition to economic approaches, and more popular with many businesses, were a variety of voluntary initiatives. Although voluntarism and similar soft approaches had been used in areas such as agricultural and natural resource policy for
many years (see Martin & Gunningham 2011), three types of business voluntary arrangements came of age during this period: unilateral commitments, which are set by the industry without any involvement from a public authority (e.g., the Responsible Care program in 1985); public voluntary programs, which involve commitments devised by government and in which individual ﬁrms are invited to participate (e.g., the US EPA’s 33/50 Program); and negotiated agreements, which involve commitments for environmental protection developed through bargaining between a public authority and industry (most prevalent in the European Union) (Parker 1999, Webb 2004). Unfortunately, by the late 1990s, several systematic reviews of the various voluntary initiatives concluded that demonstrated beneﬁts rarely went beyond soft issues (such as information diffusion and consciousness raising) (Gibson 2000, Harrison 2001, OECD 2003). There may be a variety www.annualreviews.org • Law, Regulation, and Governance 277 of reasons for this limited success, including the central role of industry in the target-setting process, the scope for free-riding, nonenforceable commitments, poor monitoring, and lack of transparency (Gunningham & Sinclair 2002). Around the time that the weaknesses of voluntarism were revealed, a transformation began to take place in the attitude of some parts of business. Rather than a conventional reactive approach (regarding law as imposing a largely unjustiﬁed economic burden), a growing number of corporations identiﬁed a business case for going beyond compliance (Hoffman 2001). This case was typically embraced by large, reputation-sensitive companies, which are regularly scrutinized by environmental groups and local communities (e.g., Shell and Greenpeace UK concerning the proposed dismantling and disposal at sea of the Brent Spar oil rig) (Gunningham et al. 2003). Many cases were made for making business greener, including cost reduction, competitive advantage, and reputational enhancement (see, e.g., Mol & Sonnenfeld 2000, Vogel 2005, Walker & Howard 2002). Regardless of the driver, businesses were beginning to see good reasons for achieving levels of environmental performance at least as high as that required by law. However, business had problems with the form of regulation (particularly command and control), which they argued imposed unnecessary costs upon them and constrained their own environmental initiatives (Amoco/EPA 2009). In part responding to this changing attitude of business, and in part because of the manifest failings of many of the alternatives to direct law, by the mid-1990s a renewed emphasis was placed on hard law, albeit in a form softened by neoliberalism. Regulators and policy makers increasingly aspired to light-handed regulation, which sought to prevent intrusion on business ﬂexibility or competitiveness by encouraging enterprises to ﬁnd new ways of saving money, improve their compliance assurance, and enhance environmental performance (Hart 1997). In contrast to the voluntary approaches described above, light-handed regulation sought to integrate with, rather than substitute for, command and control. Thus, early efforts focused on a shift away from speciﬁcation- or technology-based environmental standards toward legally mandated performance standards that specify outcomes but free up enterprises to respond in the way they best think ﬁt (Porter & van der Linde 1995). However, performance standards still have a substantial limitation; namely, they require enterprises to achieve only minimum standards and provide no incentives or encouragement to go beyond those minima or to engage in continuous improvement. Accordingly, the Clinton-Gore administration, along with several other Anglo-Saxon governments (most notably in Canada and some Australian states), began experimenting with regulatory ﬂexibility initiatives, including an innovative approach to standard setting variously termed process-based, systems-based, or management-based regulation (Coglianese & Nash 2006, Orts 1995). Capitalizing on the emergence of business management tools (for example, the International Standards Organization’s ISO 14001 environmental management systems standard), this management-based approach involved ﬁrms developing their own management system standards and developing internal planning and management practices designed to achieve regulatory goals. Such standards have the considerable attraction of providing ﬂexibility to enterprises to devise their own least-cost solutions to social challenges, of facilitating their going beyond compliance with minimum legal standards, and (in contrast to direct law) of being applicable to a broad range of circumstances and enterprises. For those reasons, management-based approaches quickly dispersed across a diversity of policy domains (see, e.g., Coglianese & Nash 2006), including some variants that were mandatory (e.g., Risk Management Planning required under the US Clean Air Act) and others voluntary [e.g., environmental improvement plans in Australia (Holley & Gunningham 2006); see also Webb 2004]. Taken one step further, management-based regulation can become a form of meta-regulation in which governments (or corporations seeking to regulate their multiple facilities
), rather than using 278 Gunningham· Holley law directly, risk manage the risk management of individual enterprises or facilities [epitomized by the UK “safety case” regime for North Sea oil and major hazards facilities (Gunningham 2007, pp. 71–80)]. Here, the role of law shifts to be one of encouraging industry or a facility to put in place self-regulatory processes and management systems, which are then scrutinized by regulators or corporate auditors (Parker 2002). Despite their popularity, the outcomes of light-handed regulation initiatives remained relatively underwhelming. Operating more or less at the margins of the existing regulatory system, they tinkered with incremental changes and focused limited resources on leaders, rather than concentrating on the most serious problems or on the compliance of underperformers (Crow 2000). And the efﬁcacy of environmental management systems (particularly those that are mandated) remains hotly contested, with only limited evidence currently available as to how they work in practice (Coglianese & Nash 2006; Natl. Database Environ. Manag. Syst. 2003; Potoski & Prakash 2005). In the case of meta-regulation, the evidence is more positive. Although objective evidence is hard to identify, conventional wisdom is that the safety case model has achieved considerable success (Heiler 2006, Øystein Saksvik & Nytro 2005). Mirroring to some extent the ﬂexible and light-handed approach that was becoming inﬂuential at the domestic level were developments in the international sphere, where nonstate actors, such as businesses, were encouraged to take on a greater role in the “steering” and “rowing” of environmental regulation (Osborne & Gaebler 1993). For instance, new transgovernmental environmental networks of state ofﬁcials and private actors emerged to combat the above-mentioned delays and fragmentation in the international system (De Burca et al. 2013, Slaughter 2004). International organizations also sought to use their mandates and expertise to extend regulation beyond the point of state agreement. This was achieved through establishing new partnerships and niches of environmental regulation, including the uptake of integrated water resource management and community-based biodiversity management (Andonova 2010; De Burca et al. 2013, p. 734; Glasbergen et al. 2007). A different approach to international networks and partnerships was the Forest Stewardship Council’s certiﬁcation scheme. Unlike state-led approaches, this scheme was established by civil society organizations (De Burca et al. 2013) but evolved to incorporate environmental, social, and economic chambers within its governance arrangements and, through this, a clear role for business. Although the Council does not have authority from or over states, and notwithstanding competition from several industry-based (and predictably weaker) schemes, its inﬂuence in promoting sustainable forestry, at least in developed countries, has been considerable (De Burca et al. 2013, p. 734; Overdevest & Zeitlin 2014). Such an approach was emblematic of emerging and diverse actions of international and domestic NGOs and communities to protect the environment, which was sometimes termed “civil regulation” (Bendell 2000, p. 241). However, civil regulation was not entirely divorced from state intervention. Light-handed regulatory instruments, such as “information-based regulation” (Fung & O’Rourke 2000, Sabel et al. 1999), epitomized by the US Toxic Release Inventory, saw facilities required to estimate and report their emissions (see also certiﬁcation and labeling, Minneti 2010). This simple state-backed Toxic Release Inventory strategy had broad ramiﬁcations, including empowering community groups to shame bad corporate behavior, enabling markets and shareholders to make more informed judgments, and encouraging internal corporate self-reﬂection on how things might be done differently. Similar initiatives have been introduced elsewhere (Karkkainen 2001)—the Global Reporting Initiative being the most recent and arguably the most important international initiative of this type (Karevia et al. 2015). Although initiatives like the Global Reporting Initiative have certainly led to increased corporate awareness of sustainability issues, others argue that their substantive effect is often limited. www.annualreviews.org • Law, Regulation, and Governance 279 This is because informational approaches depend on the quality and type of information reported, its relevance to the intended audience, and the resulting capacity to change business behavior (Sunstein 1999, pp. 626–29). Many informational approaches have tended to present detailed descriptions of processes, such as management and compliance, but neglect to disclose complete environmental impacts. The result can be a pattern of selective disclosure that makes companies look good but rarely links to observed improved performance (Delmas et al. 2013, Karevia et al. 2015

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