Vol. 10 No. 1 (January 2000) pp. 16-19.
SOCIAL SCIENCE, SOCIAL POLICY, AND THE LAW by Patricia Ewick, Robert Kagan, and Austin Sarat (Editors). New
York: Russell Sage Foundation, 1999. 387 pp. Cloth $49.95.
Reviewed by Mark Kessler, Department of Political Science, Bates College.
This well organized and provocative edited collection includes ten essays originally prepared for a 1997 symposium
to honor Stanton Wheeler, Ford Foundation Professor of Law and the Social Sciences at Yale Law School, an intellectual
leader in legal sociology, and an important influence on many prominent law and society scholars (several of whom
write essays for this volume). The collection asks several questions about the intersections of law, the social
sciences, and public policy at the center of Wheeler's scholarly interests: "What can social science contribute
to the study of law? Can the use of social science methods enrich our understanding of law? Can and should it
help us to formulate more reasoned and effective legal policy?" (p.1).
The volume is organized into three major sections (three chapters focusing on "Historical and Structural Analyses
of Law," four chapters exploring "Barriers to Influence," and two final chapters examining "law
and the Reordering of Social Relations") plus an introductory essay written by the editors. Substantive chapters
range broadly over diverse topics in legal policy. Malcolm Feeley examines the privatization movement in corrections
in historical perspective, emphasizing how penal reforms have expanded the reach of state control ("Privatization
and Punishment: Lessons from History"). Lawrence M. Friedman compares criminal justice trials to theater performances
and raises questions about the expressive and educational functions of legal processes and their connection to
popular culture ("On
Stage: Some Historical Notes About Criminal Justice"). Kenneth Mann writes about the important role of counsel
in constructing facts at trials and suggests that variations in the availability of time among defense lawyers
produce crucial inequalities in the production of "reality" at trial ("Beyond the Law of Evidence:
Facts and Inequality in Criminal Defense"). Deborah L. Rhode traces distortions in public views about lawyers
to media distortions that do not take account of social science research findings ("A Bad Press on Bad Lawyers:
The Media Sees Research, Research Sees the Media"). In a similar way, Neil Vidmar suggests that popular conceptions
of the tort system, especially in the area of medical malpractice, are at variance with a reality established by
social science research ("Maps, Gaps, Sociolegal Scholarship, and the Tort Reform Debate"). Jack Katz
assesses the historical evolution of social science research on inequality in legal processes and the political
implications of choices researches make about conceptual frameworks and methodologies ("Hunting for Bias:
Notes on the evolution of Strategies for Documenting Invidious Discrimination"). In an in-depth, nuanced
case study, David Weisburd examines some of the reasons why social science research
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did not play a more prominent role in a New Jersey appellate court case determining the death penalty's constitutionality
("Good for What Purpose? Social Science, Race, and Proportionality Review in New Jersey"). Diane Vaughan
focuses on the 1986 space shuttle Challenger disaster as a way of integrating individual-level, organizational,
and environmental explanations for organizational deviance and misconduct ("Boundary Work: Levels of Analysis,
the Macro-Micro Link, and the Social control of Organizations"). Finally, Susan P. Shapiro presents findings
of a study of 128 law firms in Illinois that suggest the conditions under which lawyers
regulate themselves regarding potential conflicts of interest ("When You Can't Just Say 'No': Controlling
Lawyers' Conflicts of Interest").
In a useful introduction, the editors situate these chapters in discussions among sociolegal scholars in the past
fifteen years or so about issues surrounding the interplay of law, public policy, and the social sciences. In
particular, the editors highlight important criticisms (e.g., Sarat 1985; Sarat and Silbey 1988) regarding legal
realism's project and law and society scholarship that emphasizes how the implementation of law often fails to
meet expectations in the written law, or how the law in
action often looks quite different from the law in the books (in 1985, Sarat characterized the continuation of
what he call "gap studies" in sociolegal research as " the unfortunate persistence of a research
tradition"). Among other things, such work assumed a conceptual distinction between "law" and "society"
as it sought to identify the influence of one on the other-"law" influences "society," "society"
influences "law"-that helped to explain gaps between law's aspirations and its effectiveness. In recent
years these assumptions have been challenged by scholars suggesting that "law" is not conceptually distinct
from "society," but rather constitutes "society" by providing the concepts that give it form
(e.g., Brigham 1996). Constitutive perspectives on law and society are often linked to broader interpretive challenges
to traditional positivist, social science methodologies employed in "gap studies" (e.g., Trubek and Esser
1989, Harrington and Yngvesson 1990; Sarat 1990). Finally
sociolegal scholars (Sarat and Silbey 1988) have raised important questions about the lack of critical distance
between sociolegal scholars and policymakers and the extent to which "the pull of the policy audience"
may shape the specific questions that are asked, the conceptual frameworks employed, and ultimately the findings
and suggestions provided by social science research.
More than a trace of the traditional "gap study" paradigm remains in some of the work contained in this
book, but contemporary critical perspectives and constitutive understandings of law and culture clearly inform
much of the discussion and analyses throughout the chapters. Revisions of the dominant gap paradigm noted by the
editors in the introduction are seen most clearly in the way in which some of the authors frame their work. For
example, Lawrence Friedman suggests that we begin to examine criminal justice processes "as a kind of social
theater, as a web of communication, as an aspect (or product) of popular culture, rather than as an engine of
crime control" (p. 69). Criminal trials, he suggests, should be viewed as drama, "a story acted out as
if onstage," for the benefit of the jury (p. 79). In this sense, juries mediate between written law and applied
law by attaching meanings to the stories they hear and see in court.
Kenneth Mann sees the criminal trial as "a process of image-making through the
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control of facts" (p. 101). Employing a modified social constructivist perspective (he is careful to write
that "my concept of image-making is not radically subjectivist, for it admits to the existence of an objective
event" (p. 107), Mann suggests that the controlled presentation of facts is a "discourse" that may
shape the version of "reality" ultimately held by legal decisonmakers. Both Deborah Rhode and Neil Vidmar
focus on the construction of legal reality, concerning lawyers and the tort system respectively, by mass media
and other critics.
Although many authors make persuasive cases that legal reality is constructed by legal and non-legal actors, and
that these constructions contain patterned distortions, most of the authors seem reluctant to explicitly address
and position themselves in the debate over positivist and interpretivist methodological approaches. In fact, most
of the works included in the volume seem to suggest that distorted realities produced by media, political officials,
and others, and false impressions relied upon more generally by policymakers ought to be replaced by more accurate
depictions of reality produced by social science. In this regard, this collection is firmly linked to the traditional,
positivist, law and society paradigm that sees social science as providing accurate maps of reality-as "a
project of revelation, of bringing the unseen to light" (p. 7).
The selection that goes furthest in the direction of questioning the role of social science methodology in the
production of reality (or in thinking of it as only one version of reality) is Katz's examination of research on
discrimination. In this fascinating historical study, he traces the evolution of what he calls the "hunt
for bias" from work focusing on bias in individual attitudes, to inequitable organizational outcomes, to differential
pressures on official decisionmakers. Throughout this analysis he comments on the varying political implications
of asking about prejudice, discrimination, and bias in these different ways. Katz concludes that these varying
conceptions of bias produce different "versions of evil" embedded in research narratives and that, over
time, these narratives of evil have "been radically transformed in a direction that threatens to undermine
the moral fervor of the hunt" (p. 211).
Regardless of their approach and methodological assumptions, chapters in this volume are consistently well conceived
and stimulating. All of the selections, in their own way, are excellent examples of rigorous thinking about important
problems in legal policy studies. This collection provides an impressive portrait of the past and present in sociolegal
policy studies, as well as providing a vision for the future. Indeed, as a whole, selections in this volume are
a fitting tribute to Professor Wheeler-they ask significant and interesting questions, provide reasoned and well
defended answers to these questions, and suggest useful avenues for future
inquiry.
REFERENCES
Brigham, John. 1996. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF
RIGHTS. New York: New York University Press.
Harrington, Christine B. and Barbara Yngvesson. 1990. "Interpretive
Sociolegal Research." LAW & SOCIAL INQUIRY 15: 135-148.
Sarat, Austin. 1985. "Legal Effectiveness and Social Studies of Law: On the
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Unfortunate Persistence of a Research Tradition." LEGAL STUDIES FORUM 9:
23-32.
Sarat, Austin. 1990. "Off to Meet the Wizard: Beyond Validity and
Reliability in the Search for a Post-empiricist Sociology of Law." LAW &
SOCIAL INQUIRY 15: 155-170.
Sarat, Austin and Susan Silbey 1988. "The Pull of the Policy Audience."
LAW & POLICY 10: 97-168.
Trubek, David M. and John Esser. 1989. "Critical Empiricism' in American
Legal Studies: Paradox, Program or Pandora's Box?" LAW & SOCIAL INQUIRY
14: 3-52.