Law And Society Research Paper

There are scholars in many parts of the world who share these identities, but the field, even in Britain, owes much to origins in the USA. The emergence in the USA relates to the fact that the legal profession has long held a dominant professional position in economic and state power, and social science disciplines in the USA developed very differently from their counterparts elsewhere. In the USA, the disciplines became more differentiated, more empirical, and more positivistic than in other settings. Those trained in the disciplines could challenge the hegemonic position of law in the USA, and this continuing challenge helped to produce the field of law and society. The relative success of this field in the USA made it attractive to others, including most notably the British. The two largest organizations are the Law and Society Association (LSA) in the USA and the Socio-Legal Studies Association in Britain. By 2000, the LSA had more than 1,500 members and the SLSA about 750. Both groups contain a diverse array of scholars, interests, and approaches. Common frames of reference include work on the legal profession, issues of gender and race, state regulation, courts and dispute resolution, and crime and criminal justice. These research topics define the mainstream of the field, which includes the full range of social science methods.

Recognizing the importance of the USA in defining the field of law is not inconsistent with seeing these fields as part of an international phenomenon. First, there are many scholars in a number of countries, including India, Japan, Korea, Europe, and Latin America who have been influenced strongly and have contributed to this field. The influence can be traced in large part to the law and development movement in the 1960s and 1970s, which promoted educational interchange and a range of interdisciplinary work on the legal profession and the courts in particular. Notable examples include the work of Rogelio Perez Perdomo in Venezuela, and Upendra Baxi and Rajiv Dhavan in India. Much work in the law and society tradition continues to be produced by these individuals and others.

A second international influence came from the fact that participants in the law and development movement from the USA, such as Lawrence Friedman, Marc Galanter, and David Trubek, took their insights from abroad and used them to develop theories and models that could be applied to the USA. The bestknown of such approaches is Galanter’s famous article on ‘Why the haves come out ahead’ (1974), which was in large part based on his experience in India.

More generally, a related but distinguishable field of ‘legal sociology’ took shape at roughly the same time that ‘law and society’ developed in the USA, and it continues to be important in Europe and elsewhere. The major institution is the Research Committee on the Sociology of Law, which is affiliated with the International Sociological Association and which also meets with the US Law and Society Association every five years or so. One of the pioneers of legal sociology in the USA, William Evan, joined with Adam Podgorecki of Poland—then visiting in the USA—to take the initiative in 1962 to form the Research Committee. The first president was Renato Treves of Italy, who built the Research Committee as a distinct entity devoted to legal sociology. Again, while there have long been overlaps with law and society, the scholarship associated with the Research Committee is more ‘European,’ which can be defined as more theoretical and less empirical than that typically associated with law and society or sociolegal studies.

The development of ‘law and society’ in the USA occurred at almost the same time as the founding of the Research Committee, but the story begins with the Legal Realists, who used the growing prestige of social science and especially sociology in the 1920s to mount an attack against the formalism of the generation that controlled the legal academy at the time. Centered at Yale and Columbia, the Realists carried out empirical studies of the legal system and challenged the assumptions of those they labeled as ‘formalists’—those who believed that the law was a self-contained system such that legal precedents actually dictated the results in legal cases. Among the prominent legal realists were Charles Clark, William O. Douglas, Jerome Frank, Underhill Moore, and Walter Wheeler Cook. Although the Legal Realist movement as such died by the end of the 1930s, its leaders had been absorbed into the mainstream of the legal profession, and the interest in social science had seemingly disappeared. The orientation of the Realists, however, helped set the stage for later developments.

A gradual revival of the interest in law and social science after World War II generated the people and momentum to create the Law and Society Association (LSA) in 1964. During this period the Ford Foundation invested substantially in empirical projects that focused on the legal system. One major grant was to the newly established American Bar Foundation to fund the Survey of the Administration of Criminal Justice, which was directed by Frank Remington of the University of Wisconsin. Another important grant was to the University of Chicago to support a variety of research projects, the best known of which was by Harry Kalven and Hans Zeisel on the American jury.

In the 1950s, one of the promoters of the legacy of Legal Realism, David Cavers, used his position as Associate Dean at Harvard Law School to influence a prominent alumnus, Walter E. Meyer, to provide in his will for the establishment of the Walter E. Meyer Research Institute of Law, which was to encourage law-trained researchers to use the tools of social science in their research. Once established in the late 1950s, the Institute made numerous grants over a 20- year period to help develop the field of law and society.

Even more than the Ford Foundation and the Meyer Institute, the Russell Sage Foundation’s grants served to institutionalize these collaborative ventures in the 1960s. Prior to the time of the establishment of the LSA, itself promoted by the Russell Sage Foundation, the Foundation had already invested more than a million dollars in law and social science. The major investment began with a grant to the Center for the Study of Law and Society at the University of California at Berkeley, and other grants were made to establish centers at Wisconsin (1962), Northwestern (1964) and Denver (1964). Later in the 1960s, after the establishment of the LSA, the Meyer Institute and Russell Sage Foundation funded six years (1967–73) of summer institutes in Denver for legal academics in a program entitled SSMILE: Social Science Methods in Legal Education. The National Science Foundation program in law and social science began in 1972 and reinforced the idea that this set of topics comprised a distinctive field.

The 1960s and early 1970s represented a kind of golden age for law and social science. There was a strong relationship between what was happening in the production of knowledge and what was happening in the streets and in the civil rights movement outside of the academy. Social science provided a new professionalizing expertise that offered ways to manage the new social agenda. Sociological knowledge thus gained in value as a new generation helped to define a political agenda of concern with urbanization, race relations, poverty, and crime. This social science learning could be used to challenge the postwar complacency of law schools and the training and expertise of lawyers for governing the state.

Remaining followers of Legal Realism, including such figures as Cavers and Willard Hurst of the University of Wisconsin, used this rising prestige of the social sciences to renew their own attacks against legal traditionalism and formalism. As both a cause and a reflection of this challenge, a few philanthropic foundations made it their missions to build institutions that would fly the banner of this new sociological expertise. Their investments in learning and in building institutions succeeded in bringing a new expertise to law and to the activist state.

The period of relatively high prestige for scholars bridging law and social science was in retrospect quite brief. The 1980s again brought a period of rapid social change, but social science generally and ‘law and society’ in particular declined in relative prestige. Indeed, just as law and society helped to build and legitimate the activist state (and the role of law in its construction), the competing movement of law and economics provided much of the learning and legitimacy for the later turn away from social welfare and state activism.

The way that law and society linked with the activist state, and the tensions within the law and society field, can be seen in the stories of two of the Russell Sage centers—Berkeley and Wisconsin. The Russell Sage Foundation grant to establish the Law and Society Center in Berkeley in 1962 began a process that continued through the closing of the School of Criminology and the establishment of the Jurisprudence and Social Policy program at the law school in the late 1970s. Phillip Selznick was the key individual in developing the idea of the Center. Selznick’s early work focused on organizations as institutions (Selznick 1949), but he became increasingly interested in law and its relation to the normative lives of organizations. In 1969, Selznick et al. published Law, Society, and Industrial Justice (1969), written in collaboration with Philippe Nonet and Howard Vollmer and published by the Russell Sage Foundation. Drawing on his studies of institutions, Selznick and his collaborators examined the general institutional setting of labor management relations, asking how ‘emergent law’—including due process—could be brought to and realized in the industrial setting as ‘industrial justice.’ Paralleling Selznick’s own move from institutionalism toward legal and even jurisprudential issues, the book asked ‘what it means to legalize an institution, that is, to infuse its mode of governance with the aspirations and constraints of a legal order’ (Selznick et al. 1969, p. 8).

Others who joined the Center followed in Selznick’s footsteps, advancing the study of law as an institution; these scholars included Sheldon Messinger, Jerome Skolnick, and Jerome Carlin. Within the law school, there was relatively limited but growing support for the Center and for sociolegal studies, in particular from Geoffrey Hazard and Caleb Foote. A new cohort of law professors, led by Sanford Kadish, began to move much closer to the Center later in the 1960s. Carlin initially decided to focus his research on solo practitioners, and the result was a pioneering account of that world, entitled Lawyers on their Own (Carlin 1962). He moved to the Bureau of Applied Social Research at Columbia, where he produced another major work, Lawyers’ Ethics (Carlin 1966). He then moved to Berkeley to work at the Center and the sociology department. Beginning in 1963 at the Center, his first project explored the relationship between the legal system and the class system. The project, which also involved Messinger and Jan Howard, resulted in the well-known article in the first issue of the Law and Society Review on ‘Civil justice and the poor’ (Carlin et al. 1966), and a book on the same topic. The conclusions emphasized the unequal access to law by the poor and helped make the case for the redistribution of legal services. It fitted very well with the ‘war on poverty’ and the ferment that was building around new legal services programs. The research connected closely to the social and legal activism of the time.

Also in Berkeley, but less oriented toward the Center, was Laura Nader, one of the few women involved in the early years of LSA and also a creator (or re-creator) of the subfield of legal anthropology. Nader’s Harvard dissertation was based on fieldwork in Mexico with a focus on law cases. She joined the Berkeley anthropology department in 1960 with a specialty in the anthropology of law, which she then helped to develop. She organized the first major conference on law and anthropology, which resulted in a book that helped define this emerging subfield of legal anthropology. She also organized her students into the Berkeley Village Law Project, which focused on villages and ‘disputing,’ and became very influential in law and society as well as in legal anthropology. Legal anthropology continued to be a very live field into the 1970s, contributing to the emerging interest in alternative dispute resolution.

Eventually the Center moved into the law school, in part because of the Berkeley administration’s decision to close the School of Criminology. What was left of the criminology school was merged in 1977 with the Center for Law and Society under the auspices of the new Jurisprudence and Social Policy (JSP) program. The social scientists moved to the law school. The law school, for the most part, remained dominated by the legal mainstream, but the legacy of the origins in sociology remained evident—even in the jurisprudential component of the JSP program.

Wisconsin, in contrast to Berkeley and the other centers, already had a thriving interdisciplinary community in the 1950s. It centered in the law school and was built on Willard Hurst and the legacy of Legal Realism. The Hurst contribution can be traced to Lloyd Garrison, the Dean at Wisconsin Law School during the 1930s. At Wisconsin, Hurst worked enthusiastically with Garrison to develop first-year teaching materials for a course on ‘law in society,’ and he also invested substantially in the cohort of young professors in the law school. The group built an identity that helped to constitute law and society.

Following Hurst’s lead, Stewart Macaulay also moved toward the sociology of law and the attack on legal formalism. Hurst also encouraged Lawrence Friedman, and many others, to write about law in the specific context of the state of Wisconsin, which led to the publication of Contract Law in America in 1965 (Friedman 1965). Macaulay and Friedman teamed up to produce one of the early sets of materials on ‘Law and the behavioral sciences’ (Friedman and Macaulay 1969). This Hurst-inspired group then expanded in the 1960s with the law school at the center.

One of the most important individuals was Harry Ball, a sociologist recruited initially to work on the ABF Survey of the Administration of Criminal Justice. Not only was he a key person in the Russell Sage grant, but also he was one of the leaders with Robert Yegge (Dean at the University of Denver College of Law) and Richard (Red) Schwartz (the first editor of Law and Society Review) in establishing the Law and Society Association in 1964. Along with Ball, Fried- man, Hurst, and Macaulay, the law and society contingent grew to include Joel Grossman (Grossman 1965, Grossman and Grossman 1971), Joel Handler (Handler 1967, Handler and Hollingsworth 1971), Herbert Jacob (e.g., Jacob 1965), Stanley Katz (Katz 1971), Jack Ladinsky, Frank Remington, and others.

The Wisconsin tradition built around Hurst, which can be characterized as that of ‘law as the dependent variable’ or, perhaps more accurately, ‘law in context,’ provides one enduring approach in the field of law and society. It is characteristic of the work of Friedman and Macaulay, for example, and others from the same group such as Joel Handler. To take an example from the early days of the ‘war on poverty,’ Handler criticized the proposition, identified with Yale’s Charles Reich, that the legalization of welfare and the provision of due process hearings would be sufficient to deliver concrete gains for welfare recipients. Criticizing the faith in legal formalism, he suggested that a careful examination of social context could make sure that the law would deliver better substance. In the writings of Hurst and other followers, the idea that law is a dependent variable was not inconsistent with idealism or an active role for law. Educated lawyers aware of social and economic contexts could make law a much more effective instrument for social progress.

Wisconsin was able to maintain a critical mass within the law school, nourished by the other departments of the university. It was able to sustain a law and society tradition that self-consciously offered a different model than that found in the elite law schools, which remained outside of the LSA orbit. The group in Madison identified its approach with the LSA organization, with Friedman, Macaulay, Handler, Jacob, and Marc Galanter, who came later, all serving as presidents, and Joel Grossman, serving also as editor of the Review.

This University of Wisconsin approach—built around law professors—both complemented and competed with the more sociological and jurisprudential orientation in Berkeley. Wisconsin’s center was dominated by the law school and the personality of Hurst, while Berkeley’s center was initially dominated by sociology—especially Selznick. The law professors at Wisconsin developed their approach by emphasizing in their struggles with the legal establishment that law was the dependent variable. This strategy allowed them to use social scientists and social scientific tools to attack legal formalism and the legal establishment on behalf of the concept of ‘law in context.’ The idea, especially in Hurst’s works, was that the context was necessary to make the law more effective and better able to solve social problems.

The Berkeley sociologists, in contrast, emphasized jurisprudence and legal philosophy, which they—in particular Selznick—could see that sociology lacked. Scholars of institutions, as Selznick argued, needed to bring law to those institutions. The sociologists also could emphasize their superior training for social research. The law professors, they suggested, were incapable of making serious contributions to important theoretical questions of concern to social science, which was necessary to solve social problems. When the Berkeley sociologists and the Wisconsin lawyers found themselves on similar terrain, however, the opposition tended to turn into one between law and social science. Depending on what position one took in this competition, therefore, the sociologists at Berkeley could be seen as ‘merely sociologists,’ lacking any real legal expertise, or they could be characterized as ‘real scholars,’ in contrast to ‘atheoretical’ or dilettante lawyers.

The relative positions can be seen in the approaches to legalization and procedural due process. While Handler, from the perspective of law and context, based his criticism of law professors such as Charles Reich on their neglect of the social factors that would limit the impact that welfare rights and hearings would have on the lives of the poor (Handler 1966), Selznick’s Law, Society, and Industrial Justice (Selznick et al. 1969) emphasized due process as ‘the primary source of concepts and doctrines used in bringing the rule of law to new settings’ (Selznick et al. 1969, p. 274). The different approaches relate to the fact that Handler was initially using social science to challenge legal formalism, while Selznick was initially using law to show its relevance to the study of social institutions.

The same basic contrast between law and sociology was also evident in the approaches of the Walter Meyer Institute, which was close to law, and the Russell Sage Foundation, which was closer to sociology. The Law and Society Association was initially the creation of people who, in terms of this relative opposition, were much closer to Russell Sage and to sociology. Yegge was the only law professor among the major founders, and the Russell Sage Foundation provided the initial funds. The contrasting structural positions, however, should not obscure the close proximity of these players on the emerging field. These were the lawyers closest to social science and the social scientists closest to lawyers. Even at the personal level, the protagonists were all friends and collaborators in building interest in the field of law and society. They shared a position against legal and sociological traditionalism, but they disagreed about how to define the new field of law and social science—and the relative positions of lawyers and social scientists within that field. They tended naturally to want to define the field in terms of their own expertises and approaches.

By the mid-1960s, this general field of law and social science had not only developed a number of institutions and adherents, but also served to define and build much of the expertise of the state as the ‘war on poverty’ began and added further resources to the field. Many of the people intersected with the new set of state programs, and indeed the relative success of the field is reflected in the career successes of those who developed this field. At the time of the development of the LSA, in short, the expertise of law and social science—including but not limited to the LSA—was gaining legitimacy and moving rapidly into the state.

The field that was constructed and the LSA itself gradually tilted in favor of law. By the late 1960s law had incorporated enough social science to stave off the social science challenge. This shift in the center of gravity of the field of law and social science generally was also evident in the 1970s in the relative power within the LSA of law professors and in particular professors linked to Madison. The presidents of the LSA were almost all law professors linked to Madison. A later indicator of the shift in the center of gravity occurred when the Berkeley Center for Law and Society was brought into the domain of the law school. Put another way, much of the investment in the field of law and social science in the 1960s ultimately found its way into the LSA and the law schools. Indeed, for a short period of time in the early 1970s, this movement seemed to have found a place at the core of the law.

The relative value of social science expertise declined in the 1980s. A know-how that served to help construct an activist state seemed to lose some of its relevance. Academic investment in economics by the mid to late 1970s tended to pay richer legal career dividends than investment in the disciplines that were built more into the LSA. Just as bright and ambitious people were drawn to social science in the 1950s, many were drawn to economics in an era where inflation and the state were considered the great enemies of progress. Economics seemed to define the problems and the solutions for the 1980s just as sociology did for the 1960s.

Nevertheless, once established, the LSA developed its own organizational dynamic. A second generation brought up within the LSA came to define the scholarship around the LSA as a ‘field’ distinct from law and from the social science disciplines. The link of the LSA to the progressive politics of the 1960s also helped to give the LSA an enduring progressive political imprint.

The next group of leaders in the LSA, followed an approach similar to that of the Wisconsin pioneers. Rather than emphasizing ‘law and context’ as an antidote to optimistic progressivism, however, the new generation—many educated at Wisconsin by the pioneers—took aim at the politically leftist legal scholars of the Critical Legal Studies movement and suggested that they needed more social science to understand and substantiate their leftist critiques. The ‘Amherst seminar,’ which produced much of the LSA leadership in the 1980s (including Austin Sarat, Susan Silbey, Sally Merry, Christine Harrington, Barbara Yngvesson, and Kristin Bumiller), showed how the ‘constitutive’ nature of law prevented the social change that had been sought in the 1960s.

As an ongoing organization with both established scholarly tools and an openness to those looking for an identity to challenge the legal mainstream, the LSA continues to thrive as an organization many decades after it was founded. The tensions and hierarchies present at its creation, however, continue to play a prominent role in shaping the organization and the field that it represents.

As the field entered the new millennium, it renewed the commitment to internationalization that characterized it in the 1960s and 1970s. There is a new law and development movement anchored in places such as the World Bank that adds momentum to the internationalization of the field. With unprecedented educational interchange both in the social sciences and in law, in addition, the US-centered field is opening up to many scholars from outside the USA. Much of the growth of the LSA in recent years, for example, has come from its international membership. It remains to be seen whether the field will continue to be a vehicle for primarily US-based scholarly approaches—dominated by the domestic tensions that have characterized it since its formation—or will become a more broadly based and cosmopolitan scholarly domain.

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