Vol. 21 No. 3 (March, 2011) pp.107-111
MAKING RIGHTS REAL:
ACTIVISTS, BUREAUCRATS, AND THE CREATION OF THE LEGALISTIC STATE, by Charles R.
Epp. Chicago & London:
University of Chicago Press, 2010. 368pp.
Cloth $72.00. ISBN: 9780226211640. Paper: $22.90. ISBN: 9780226211657.
Reviewed by Laura J. Hatcher, Department of Political
Science, Southern Illinois University. Email:
hatcher [at] siu.edu.
As a professor who teaches administrative law and politics
and is interested in the intersection of administrative law and constitutional
litigation, I am always in search of theoretically-engaging and empirically
grounded research for my upper division seniors and graduate students that is
also readable. Charles Epp has
produced such a work. In lucid
prose, Epp develops an argument for understanding administrative change that
takes into account pressures from within bureaucracies as well as from outside
them. With a combination of
interviews, content analysis of professional publications and court cases, as
well as original survey data, Epp also gives his readers an excellent example of
multimethod research that is driven by the question rather than a specific
methodology. Through a close
comparison of three case studies – policing, sexual harassment, and playground
safety – Epp demonstrates that dynamic interactions among bureaucrats and
activist reformers produced a framework for accountability that both
proliferated throughout the country and has remained surprisingly resilient.
In short, this is a book that is a must-read not only for administrative
law and public administration scholars, but also for anyone interested in
organizational change, social change, and litigation as a political process.
Many of Epp’s early pages are devoted to laying out a
conceptual framework that provides an explanation of bureaucratic change over
the course of the last 25 years. He
introduces us to a policy framework he calls “legalized accountability” (p.2).
He argues that beginning in the late 1970’s, reform-minded professionals and
activists pressed for transformation in policy arenas where bureaucrats resisted
(or sometimes simply refused) reform-oriented change.
“Legalized accountability,” according to Epp, was a “law-styled attempt
to bring bureaucratic practice in line with emerging legal norms” (p.3).
Reformers wanted to see bureaucracies do more than simply adopt reforms
on paper, and pushed for deeper implementation processes that included “written
rules, formal systems of training, and internal systems of oversight to assess
compliance with rules” (ibid.).
These rules were not required through statute or legal decisions, but rather
were adopted after the managerial professions sought ways to resolve conflicting
norms within the professions themselves in response to the pressures from
activists and reformers. Epp
provides an analysis of how legalized accountability developed in the complex
dynamics that developed between activists from outside the agencies and
reform-minded bureaucrats within them. [*108]
According to Epp, pressures on bureaucracies to reform
various practices came to a “critical juncture” in the late 1970’s and early
1980’s when “growing litigation threats against agencies and an emerging
professional reform campaign within them fused, yielding an explosion in the
fear of liability among professional practitioners” (p.3).
One of Epp’s most intriguing findings is that the
threat of liability (rather than the
actual finding of liability by a court) became a lever to push for change among
professionals seeking a mechanism to reform their agencies.
Again and again in his case studies, we see professionals in bureaucratic
organizations responding to the possibility of litigation as a threat to their
professionalism, not merely as a financial threat.
The possible embarrassment that a negative finding by a court would bring
to their agency proved, according to Epp, to be more important than the
potential financial loss. As Epp
explains, “…bureaucratic reformers on the inside of the system – ostensibly the
targets of liability – enthusiastically joined with external activists in using
the threat of liability as a lever of reform” (p.3).
Epp devotes four of his 10 chapters to policing reform in
the U.S., and includes a
fifth chapter that provides a comparison of police reform in Britain.
Laying out the issue and history of police corruption with meticulous
detail, Epp develops an argument for understanding legalized accountability’s
emergence in the context of legal changes in attitudes toward police corruption,
particularly in the form of racial discrimination and excessive use of force.
In explaining his case selection choices, Epp reminds us that policing is
particularly important because “the police affect people’s lives almost daily
like few other institutions, and police scandal and reform are key issues in the
development of American public law…” (p.33).
Indeed, the reader is vividly reminded of the central place policing
reform played to the judicial activism of the Warren Court.
Epp highlights for us that police reform is made far more difficult in
the U.S. because of the decentralized nature of policing: “Unlike almost every
other governing system in the world, the United States places police authority
in tens of thousands of local police forces, and for a very long time neither
the national government nor the state governments made much effort to regulate
these local forces” (ibid.). After
the Warren Court period, many scholars and
activists believed that police reform would be virtually impossible.
In contrast to their concerns, Epp traces what he believes was a
revolution in policing reform that occurred in the 1980’s and 1990’s.
He argues that, in part thanks to support of liability claims in federal
courts, reform movements made up both of activists outside police departments
and police professionals within individual departments were able to combine
forces and press for adoption of administrative models that addressed police
misconduct. These models, combined
with the threat of liability, placed the responsibility to fix existing problems
within police forces onto the shoulders of individual departments.
In turn, this increased responsibility led to a revolution in thinking by
police professionals who determined that they did, in fact, have a problem and
would need to address it to maintain their professional authority and
Epp compares the U.S.
in order to highlight the difference the threat of liability can make, even in
contexts where widespread corruption and a desire for reform are present.
Reform occurred within the U.S. context in ways that, despite major strides
to correct serious problems, has not occurred as fully in the Britain.
There the police force is much more centralized than in the
U.S., and as Epp reminds us, has considerably
broader powers to stop and search.
Moreover, the British constables maintain a very high degree of independence
from any other governmental agency or body.
Epp tells us that “No elected
body directly controls the country’s police forces” and that British law makes
the constables “answerable only to ‘the law’” (p.143). The judiciary did not
check policing at all until very recently, and has historically given the police
broad discretion in searches and evidence collection.
Such a situation lends itself to corruption, and as Epp tells us, the
police force in Britain was in crisis by the end of
1980s. Making use of the work of
Stuart Hall and his colleagues (1978) on the construction of moral panics, Epp
moves over very familiar scholarly terrain in his description of the ways
various media outlets covered growing tensions between police and racial
minority populations during the economic crisis of the 1970s.
Policing practices led to deep resentment among racial minority
populations who believed themselves (rightly) to be targets of harassment and
corrupt police practices. The early
media coverage of these tensions certainly tended toward sympathy for and on
behalf of the police. Such sympathy
produced, perpetuated and amplified images of minorities, particularly black
men, as “inherently criminal” (p.142).
As the complaints grew in number and resentment grew in intensity,
researchers began studying and documenting various cases of alleged harassment.
These studies demonstrated that the complaints of harassing searches and
discriminatory police practices were valid, and that the media’s coverage
combined with certain policy responses was leading to a “moral panic” (p.142;
see also Hall et al. 1978).
Eventually, police misconduct led to scandals in the
prosecution of several cases in which people convicted of crimes were released
by the courts because of police misconduct.
Ultimately, Epp says, “[b]y the late 1980s, in sum, the British police,
like their American counterparts a generation before, had compiled a record of
scandal and discrimination” (p.143).
These scandals led to calls for more accountability, and eventually the
development of a version of the legalized accountability model.
Yet, as already mentioned, while adopted to some degree, the full blown
model has never been completely institutionalized in the
Epp’s explanation for this difference relies on the absence of the threat
of liability in Britain.
While the U.S. courts had invited liability
claims made by activists, the British courts cut off the ability of activists to
use torts to bring liability pressure on bureaucrats.
At the very least, without that pressure there were fewer opportunities
for reform-minded bureaucrats to lever institutional reform in the direction
Epp’s rich descriptions and his careful analysis provide us
with an impressive account of the process by which new [*110] systems of
governance come into existence. In
this review, I have discussed his policing case studies in some detail, but his
studies of sexual harassment and playground safety bolster Epp’s claim that the
threat of tort liability provided the
key ingredient for the spread of legalized accountability and its deep
institutionalization as an administrative model.
What is less clear, at least to this reader, is why any form of legalized
accountability developed in the UK without
liability as a lever. Epp’s
argument in the beginning of the book is that the threat of liability was a
mechanism that professionals within bureaucracies could use to push for change.
In Britain, this mechanism disappears
early in the reform process. Yet,
we do see a form of legalized accountability (albeit much weaker) take shape.
The key to understanding this tension in the book, I think, is the theory
of law that Epp finally turns to in his conclusion:
“law [emerges] out of social relationships rather than imposed from above
and, at the same time…law [emerges] from elites’ interests and power” (p.216).
In Britain, perhaps, the elites had
enough of an interest in maintaining legitimacy and enough power to pressure the
system that some limited form of legalized accountability could emerge.
Much like many sociolegal scholars, including Michael
McCann (1994) and John Brigham
(1996), Epp relies heavily upon the idea that law is a constitutive force in
both creating the interests of political actors and in the structure of
governance. These are not his
terms, though his ideas lend themselves to another body of literature that
contains many of the same themes (see for example, Hunt and Wickham 1994; Merry
2001; Cooper 1998). Like
these other scholars, Epp sees the constitution of governance as a highly
dynamic process, and one that relies upon the relations of power as they play
themselves out not only among individuals, but among individuals and
institutions, and bureaucracies and other parts of government (see also, Epp,
1998). Power – in the form of
demands, threats, and possible consequences, as well as more tangible resources
-- is an integral part of the emergence of legalized accountability.
Put another way, the tensions between administrative rules and
constitutional rights – and the relationships among the people making the rules
and making rights claims and other political claims – are a critical element of
modern governance (McClure 1995).
This is not because the institutions simply respond to pressures of various
groups; rather, the institutions and agencies in them provide the practices and
forms that give shape to the claims and, ultimately, change the way people think
about what it means to govern or be governed.
By highlighting this process and making clear the legalized framework
that emerged, Epp contributes to the sociolegal literature on governance and
institutional development as well as the public policy and administrative law
literatures in political science.
CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York, NY: New
York University Press. [*111]
Cooper, Davina. 1998. GOVERNING OUT OF ORDER: SPACE, LAW
AND THE POLITICS OF BELONGING. Rivers Oram, London
and New York:
New York University Press.
Epp, Charles. 1998.
REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE.
University of Chicago Press.
Hall, Stuart; Chas Critcher, Tony Jefferson, John N. Carke,
and Brian Roberts. 1978. POLICING
THE CRISIS: MUGGING, THE STATE AND LAW AND ORDER.
London: Palgrave Macmillan.
Hunt, Alan and Gary Wickham. 1994. FOUCAULT AND LAW:
TOWARDS A SOCIOLOGY OF LAW AS GOVERNANCE. Sterling, VA:
McCann, Michael W. 1994.
AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago, IL: University of Chicago Press.
McClure, Kirstie. 1995. “Taking Liberties in Foucault’s
Triangle: Sovereignty, Discipline, Governmentality and the Subject of Rights,”
IDENTITIES, POLITICS AND RIGHTS. Austin Sarat and Thomas R. Kearns (eds.). Ann Arbor:
of Michigan Press.
Merry, Sally. 2001. “Spatial Governmentality and the New
Urban Social Order: Controlling Gender Violence Through Law,” AMERICAN
ANTHROPOLOGIST 103(1): 16-29.
© Copyright 2011 by
the author, Laura J. Hatcher.