Monday, May 21, 2007
Something Happened: Why so few followed JSP into the pool after '78
The impressive energy around the theme of empirical legal studies today, and frankly the overreaching claims of some whose work can be gathered there, makes it easy to miss that in between JSP's launch in 1978 and the present, the status of empirical socio-legal research as a form of political knowledge has taken some unpredicted turns.
The founders of JSP (Philip Selznick, Sanford Kadish, Sheldon Messinger and Philippe Nonet among them) saw the demand for empirical socio-legal research as rising on the tide of the federal government's active social and institutional reform agenda (see, Joyce Sterling & Bryant Garth 1998 [link requires JSTOR subscription]). As Selznick and Nonet (1978) put it in their programmatic essay Law & Society in Transition: Toward Responsive Law (published in a convenient cheap paper back that struck me as a starting students as being a socio-legal version of Mao's Little Red Book) describing the immediate backdrop to the conjuncture in which their intervention was lost.
The politics of the time placed justice high on the agenda of public concern. Civil rights, poverty, crime, mas protest, urban riots, ecological decay, and the abuse of power gathered unprecedented urgency as social problems. They strained the political community to its limits. The legal order was asked to take on new burdens, find new expedients and examine its own foundations. Suddenly "law and society" became a topic of the first importance, posing problems far beyond the competence of its votaries to meet or even comprehend. (2)
As the language of "strain" and "burden" suggests, their vision was not wholly optimistic about the mostly liberal policy reform agenda they cite, but they did clearly expect that the pressure for social change and institutional legitimacy would produce a continued demand for empirical socio-legal research. JSP would help meet that demand not simply by bringing the tool kits of the social sciences to bare on a common set of legal institutions and problems, but also by integrating this work with the internal jurisprudential work of refining the values of "legality."
But while Selznick and Nonet seemed to anticipate that social reform project of government would continue, the election of Ronald Reagan in November 1980, and the subsequent twelve years of Republican administration, seemed to many observers to mark a fundamental turn in American political economy away from the socially active high tax and redistributive state of the post New Deal period, into a new regime both more (classically) liberal, in the sense of market oriented, and conservative in the sense of wanting to use law to shore up rather than challenge authority. (In fact, this turn, if we can fairly understand it as such, was far broader and deeper than Reagan or the Republican Party, but more on that later... "
Whatever else one makes of the turn that begin sometime in the mid-1970s (I like 1973, the year that Joseph Heller published his novel Something Happened), it is clear that JSP was launched right into it, and that it was redefining the currents of knowledge and power into which the program sailed.
In many ways law and society knowledge remained important in these years, but it was being contested and redefined by neo-correctional criminology and law and economics, sometimes speaking out of the same megaphone. This posture, exemplified by the influential work of scholars like James Q. Wilson and Richard Posner, suggested that empirical studies of law and social change problems was not very important because most of what we needed to know about policy we could learn by reasoning form basic micro-economic theory with little or no empirical input necessary. In most cases the message would be "less is more" when it comes to government. The one exception to this rule would be criminal justice, which quickly became the one kind of activist government allowed to feed and grow in these years. Ironically here JSP's legal process values and law school setting made it an unlikely channel for neo-correctional research to support the burgeoning war on crime. Indeed, Selznick, and other early JSP faculty like Jerome Skolnick and Caleb Foote, had already defined themselves as critics of that war.
If you've read this far you probably can detect where I'm going. Things can change, and things can change back. JSP is tanned and rested and ready for what seems to be a new spring of social policy debate and funding for empirical research, just in time for the 40th anniversary of the Summer of Love...
Well its not that simple. But I do think that some of the fundamental conditions that restrained the growth of a socio-legal research and pedagogy strategy with strong empirical commitments and a critical normative tradition coming out of social theory have changed. In the next few postings, I want to talk about some of them, including, law schools, the new empirical law and economics, the return of law to the disciplines, the prestige of governance itself as a problem for both liberals and conservatives.
Of course you can't go home again. And my optimism is a shadowed both by the sense of what has been lost (rent Bobby if want to be reminded in stirring but fairly predictable ways) and by the ghostly way in which our current leaders echo the past but point uncertainly into the future (e.g., consider Arnold Schwarzenegger promising to restore rehabilitation and proportion to California's prisons but only by adding 53 K new beds first).
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Interesting post. Can you explain a bit more why the election of Republican Presidents in '80, '84, and '88 interfered with JSP's success? Put another way, who is the audience for JSP's work -- and why did that audience get turned "off" from JSP's approach when American politics shifted to the right? The connection isn't directly clear to me.
Posted by: Orin Kerr | May 21, 2007 5:23:09 PM
Jonathan -- I look forward to more. In filling out the story, I wonder whether you can address a couple of things. Historicizing JSP makes me wonder whether the right book title is "You Can't Go Home Again." Do you really think the new empirical legal studies is a return to JSP? It is not just the difference in the political vision, and the sense of mission some felt in the early 70s that law was a tool of social change, and the legal academy was a place to hone its use. If JSP was starting from scratch in 2007, would it seek the same kind disciplinary diversity that it did at the beginning? Here I'm thinking especially (as you might guess) about the historians. Legal historians have always been a part of JSP. But it's unclear to me what the relationship is between the new empirical legal studies and legal history. Legal historians, of course, do empirical research. The new ELS often involves quantitative work that is historical. But it seems as if we have two different fields that aren't really talking to each other. What about at JSP?
Posted by: Mary Dudziak | May 22, 2007 5:59:58 PM
As I recall the impetus for the JSP Program was Berkeley's decision to abolish its school of criminal justice and the issue of what to do with its few distinguished tenured members. One important name you don't mention was Shelly Messenger. By the time JSP was founded, Nonet and Selznick were about as theoretical and unempirical in their work as Posner and Wilson, and, indeed, even less prone to draw on (supposedly) rigorous empirical literature in making their arguments. Their philosophical stance was, of course, considerably different, and I thought the Nonet and Selznick volume you mention was an important contribution - more than most of what I have read it influenced my thinking.
I think from the outset JSP's important contributions were in the realm of training and symbols. The acceptance of social scientists in a top law school (though the JSP folks seemed divided between the more and less fully integrated) carried an important message to other law schools and the world of law and social science. In addition, JSP created a degree program (you being a good example) which turned out significant scholars and also had the respect of both law schools and, more importantly and more difficult to accomplish, social science departments. While from the get go JSP has always had some outstanding empirical researchers, I see the empirical work produced by the Program's scholars as individual rather than institutional products and not distinctively different from or better than the work of many individual scholars in many other institutions.
Posted by: Rick Lempert | May 23, 2007 12:13:10 PM
I'm not claiming that the empirical work produced by JSP students and faculty is always better than the work of other law and society or socio-legal scholars at other institutions. I do think there are distinctive features to much JSP scholarship, however, which comes from its interdisciplinary character and its close relationship to the normativity of law. This past fall I was privileged to co-teach our JSP orientation seminar with colleagues Bob Cooter and Lauren Edelman (our topic was appropriately enough "whats new about the new empiricism in legal studies"). Bob and Lauren have each made important theoretical and empirical contributions on law as seen both from the legal academy and their own different disciplines (economics and sociology). The students (and I) got to watch them struggle with each other (intellectually of course) and the limits of their own disciplinary tool kits (I intervened regularly on the side of the cultural/interpretive/historical discourses). We can't afford to replicate that kind of staffing pattern in most of our classes, but that kind of debate pervades the program and I would say leaves its mark on the kind of empirical research most of our PhD students produce in their dissertations.
More importantly, my brief is not so much for JSP as for interdisciplinary programs with real institutional coherence and a strong relationship with or even in a law school. They exist in implicit form at many universities. Your law school is an excellent example of a place that could create a first class interdisciplinary PhD program tomorrow with a few cross appointments to your disciplinary colleagues. Given the fact that the disciplines there have had a difficult time sustaining a critical mass of socio-legal scholars it would be major contribution to the university and its graduates would be highly competitive for teaching jobs in both law schools and the disciplines.
I think the legal history that is being produced today is quite distinctive and must be seen as part of the revitalization of empiricism that is signaled (if not exactly represented) by the banner of Empirical Legal Studies. I'd be interested in your views on both the continuities and differences between the more recent work (including your own research on the politics of civil rights law) and the first post-Willard Hurst generation of empirical socio-legal historians (e.g. Friedman, Gordon, Horwitz, Scheiber).
My most recent post was intended to be responsive your comment, thanks.
Posted by: Jonathan Simon | May 24, 2007 10:08:25 AM