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Wednesday, May 23, 2007

The Empire Strikes Back: The 80s and the Interpretive Turn

It is familiar and tempting to see Ronald Reagan's presidency as a pivotal turning point in what we might think of as the political economy of empirical socio-legal studies.   Ideology is important and Reagan's real successes in restructuring government undoubtedly did make a difference in the demand curve for academy based socio-legal studies.   I'm more inclined to see the shift as one cutting somewhat orthogonally to ideology.  Presidents from FDR through Nixon governed in what  could be called a New Deal model of the state, one emphasizing heavy government investment in public infrastructure, a special relationship with  scientific expertise, a Realist stance on the role of law in society and (inevitably) high taxes with re-distributional effects.  (And just as importantly lots of state governments followed a similar course, under both Democratic and Republican leadership).

In place of the New Deal state emerged one that has been called neo-liberal, but which in any event emphasizes markets and privatization over public investment, distance from science (if not hostility), and more formalist approach to legality (one that corresponds to a mixture of autonomous law and repressive law in Selznick and Nonet's categories).

The change began in the 1970s at both the state and federal level (think Jerry Brown v. Pat Brown in California) and in both parties (Carter liked expertise but began to turn the country away from many of the other trappings of New Deal governance).  Reagan did mark a break, especially with the idea of science.  A notion that everything you need to know about governing you learned in Kindergarten (or at least undergraduate economics) seemed to take hold during the '80s.  Reagan also helped recast the relationship of the popular leader to the mass media, changing  the narrative from that associated government with policies, issues of  justice, and science, to one more tuned to emotions and personalities.

Within socio-legal studies this shift in the political economy of empirical socio-legal studies led to some reorientation of the kind of empirical studies of law and social change that researchers were doing (the activist state created change and access), and it helped direct new researchers coming into the field (including yours truly) toward a whole set of research strategies and targets coming out mainly from the qualitative social sciences and the humanities (rather than the traditional social science disciplines).   (For an extended version of this analysis with examples and citations  see my 1999 review essay, Law After Society, [may require access to a digital license])

The cultural turn, the historical turn, the interpretive turn, are all words  that can and have been used to describe this.  The merits of this work is a subject of another time (it ranges from the inspired to the derivative like most other literatures I'm familiar with).  What is important is that it was seen by many empirical socio-legal researchers as an abandonment of the empirical tradition.  Something akin to a culture war broke out in the Law & Society field in those years (although it was very civil as these things go) one that was read sometimes as between quantitative and qualitative scholarship, and sometimes  as between research modeled on the sciences and research modeled more on the humanities and philosophy. 

If I'm right that we are at new conjuncture for the political economy of socio-legal scholarship this culture war model may be very misleading and one that we would do well to abandon.  Tthe cultural/historical/interpretive turn has broadened  extraordinarily the field of social practices available for empirical study.  Qualitative research strategies like ethnography, historical discourse analysis, and open ended interviews, are vital for producing testable theories about the institutional and cultural dynamics in which law invariably operates.  Indeed, as quantitative researchers leverage more analysis out of randomizing opportunities presented by organizational practices (a real advance in many ways), they rely more on assumptions about what is actually going on at ground level in those organizations, assumptions that can be subjected to qualitative data collection.

As neo-liberalism seems to be entering a new phase (call it 2.0 if you like), government (or perhaps goverance, since it often involves the private sector as well) seems to be increasing its demand for socio-legal research and creating new opportunities for access (much of it at the state and local level).  If the New Deal state governed through large social institutions and organizations, and the first wave of neo-liberalism seemed to take the view that simple price signals were all that was needed, neo-liberalism 2.0 seems to emphasize subjectivity (cognition, emotion, knowledge) as the target of governance.  It is not surprising that such diverse discourses as critical race theory, cognitive science, behavioral economics, experimental psychology, therapeutic jurisprudence, legal consciousness studies, and game theory, should be flourishing in law schools (and elsewhere on campus) these and many others (including much of the new legal history which takes subjectivity very seriously) might be seen as producing knowledge about how law  governs subjects (or fails to). 

Naturally not all of this scholarship produces "results" that are immediately usable by those engaged in governance,  but it does contribute to a productive field of  knowledge about legal subjectivities that can be brought to bear on governance and policy issues by those with creativity and patience to produce those links and pathways.  What kinds of academic socio-legal knowledge would be valuable to police chief interested in whether she should intensify police on the streets to stop homicides but is worried that this may create more reactive grievance in communities long subjected to police violence. 

Nor do the more traditional studies of interpersonal relations or organizations become less relevant, indeed the way organizations manage and invest  the subjectivities of their members is one of the things being illuminated by the wave of recent work on organizational compliance with law and work place equality (including work by JSP colleagues Lauren Edelman and KT Albiston).  Equally important, by reading and working across these discourses we can learn more about nature of neo-liberal governance itself and the pathways of knowledge and power being opened up by it. 

While the revival of interest in the study of law and legal institutions and practices in the traditional social science disciplines like sociology, political science, economics and psychology is impressive and I think enduring, it makes special sense for law schools to be investing in the full range of socio-legal knowledge production, from empirical legal studies, to law culture and humanities.  Selznick and Nonet were right that law schools, if sufficiently invested by disciplinary knowledges, would be the right institutions to foster some of the best of this kind of research by integrating these knowledges together around the law's traditional emphasis on governance and normativity. 

In a subsequent posting I'll turn from research to pedagogy.  Creating genuinely interdisciplinary PhD level programs inside law schools can produce gains for both the JD classroom and the training of future legal academics

Posted by Jonathan Simon on May 23, 2007 at 07:09 PM in Life of Law Schools | Permalink

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