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The Limited Impact of Sociolegal Research

Bill Felstiner is a founder and currently the Vice President of the Chad Relief Foundation, which assists refugees in the Central African Republic.  Bill was long a professor of sociology at the University of California, Santa Barbara.  He has also been a professor at thee University of Cardiff, and he served as the Director of the International Institute for the Sociology of Law in Spain.  He has written on sociolegal perspectives on divorce, as well as on processes of dispute emergence.

Is sociolegal research related or unrelated to legal reform or social change? I argue not that SLR cannot measure reform, but that it does not form the basis of and lead to reform or change.  Of course, there is a big difference between law reform, that is reformulating the rule, and changing even a narrow range of legally-relevant behavior, and an even bigger difference between changing a narrow range of legally-relevant behavior and transforming the structural arrangements within which we live.  The farther we go along this line of changing the positive law to changing the structure of society the stronger my case, but I'll try to deal with the greater range of change.

Now mine is a contested proposition, Nicola Lacey asserts that the central ethical impulse of SLR should be "geared to effecting social change, to making the world a better place," but I am not alone.  The equally eminent David Luban laments that "I have often been haunted by the suspicion that what I had to say was simply irrelevant to the world as we find it."  Not irrelevant in the sense of disconnected to the world, just irrelevant in that the world does not pay attention.

Let us take the great icons--Macaulay on the use of contract, Galanter on the advantages the haves over the have nots, Kagan's analysis of adversarial legalism as the root cause of gridlock in American reform, Feeley's insight that the process is the punishment, Christie's discovery of a crime control industry, Trubek et al's demonstration that the overwhelming preponderance of litigation in both state and federal courts in the U.S. involved limited stakes, small amounts of lawyer time and even less judicial resources, Abel, Sarat and my work on naming, blaming and claiming (that it, the transformation of disputes), Black's analysis of the effect of social distance on police behavior, Heinz and Laumann's conceptualization of the two hemispheres of legal practice, or Abel's characterization of the history of the legal profession as serial acts of self-interested market control.  

American businessmen do or don't use contract without any regard to Macaulay, the haves still come out ahead and for the same reasons as they did in 1973, adversarial legalism is still the order of the day impeding action on health care, social security, environmental management, tax reform, military spending and many more critical concerns, processing misdemeanors has not changed, the crime control industry is a growth stock, court reform is still based on many false premises, the early stages of disputing are as invisible as they ever were, the police still react to social distance as well as social behavior, and the bar continues to pretend that the profession is unitary and that its supervisory efforts originate in quality control. 

This is not an arbitrary list.  take my word for it that these are among the most cited, most admired instances of American SLR of the past 40 years.  Yet they are as best I can tell unconnected even to law reform, not to say to behavior or social change, whatever the motives or intentions of the researchers.  To begin, it is hard, if not virtually impossible, to connect to social change, even if we want to do it.  Here are ten reasons why.

First, much of the very best work is at too fundamental a level to be helpful to policy.  Such projects make more clear the way the legal world works, they illuminate its hidden origins, agendas and consequences.  But they do not originate in problems, they are not designed to solve anything, they are rather intended to fill in the blanks of a legal mosaic.  

Second, other research makes little imprint for exactly the opposite reason: the questions involve issues of such complexity and contingency and are linked to such disputed perspectives about the nature of human behavior that no research program can take it all into account.  I think for example of the sophisticated, but endless, research on the cause of crime and on the effects of different punishment regimes.  

Third, much SLR is contradictory so the social changer, determined to take advantage of soundly interpreted wisely gathered SL data, doesn't know who to believe, what to implement.  Look at the history of research on plea bargaining in either the US or UK.  Is it a good or bad thing? Can we manage without it or not? Does it occur in civil law countries or not? There is no end of good research on both sides of each of these questions.  

This point is illustrated in a complicated way by the famous Minneapolis experiment.  The question was which type of intervention in domestic violence cases was most effective: arrest, family mediation or removing the violent person from the family.  The first phase of the experiment indicated that arrest led to a lower recidivism rate.  the researchers, aware of the way that research results get lost in the world made sure that their work received massive attention from the public media.  This effort was spectacularly successful and police departments all over the country changed their intervention procedures.  Unfortunately in further research arrest did no prove to be the preferred path across the board: a complicated set of intervening factors centering on social class proved to be equally influential.  But the media had switched their attention to something else and the police were wedded to a new SOP.

Fifth, the perversion by politics.  Many policy makers do not operate from data to policy.  Rather, they proceed from ideology to policy.  This I take to be the fate of Ellsworths' magnificent series of studies on the biases inherent in death-qualified juries.  As long as this research did not come out in a way that pleased a majority of the Supreme Court, it had to be recast and redone.  In my own case, I was part of a group that identified the small portion of funds expended in asbestos cases in the US that ended up in the hands of injured workers.  This finding became the cornerstone of a concerted attack on tort litigation engineered by the very insurance companies that were responsible for most of the excessive costs.  They made a strategic alliance with conservative legislators who saw trial lawyers as a major source of liberal campaign financing.  In this context, the research's actual lessons were irrelevant.

Sixth, social researchers are often not trusted.  They are viewed as somewhere between revolutionaries and unremitting critics of the status quo.  For example, US tort reformers today seem to trust only that small group of conservative researchers concentrated at think tank like the Manhattan Institute of Posnerian economics financed by the insurance industry.  

Seventh is the issue whether there is, as some allege, a significant gap between what is useful to courts and what is possible for social science reliably to provide.

Eighth is the visibility problem, which is particularly acute in the US with its huge size, decentralized government, oversupply of books and journals and absence of a tradition of commissioned SLR.   

Ninth is the distortion of research results introduced by media coverage and paid media campaigns that constitutes a road block between research results and public understanding of them.    

Tenth is the parochial American difficulty inherent in the lack of a centralized political system to which research and researchers can relate.  

Now beyond all these difficulties, what are the reasons that scholars might not even want to do research that is linked to law reform or social change.

First, as Sarat & Sibley have said in their famous paper "The Pull of the Policy Audience," policy research diminished the critical potential of scholars, particularly by letting government and foundations set the research agenda.   

Second. Policy researchers are often forced to cater to a policy audience that demands unambiguous answers to complex problems.

Third.  The most prestigious social science discourse is driven by its own internal questions; the more abstract the work, the higher the status of the worker, but the less the product is transferable into policy propositions.

Fourth.  Underlying the work of some academics is a worldview or conceptual order that trivializes work on policy that defines policy work as a betrayal of their identity.  People who consider that social science's role is to understand things, not to fix them, do not want to be involved in efforts where that is the goal.

Well, what then does SLR do, what is its values, why do we do it?  I think what Mills and Geertz would say is that sociolegal   research, like social science generally, can be considered a response to a human drive as basic as that for food and sex, the drive to know, the drive to understand the world in which we live, to identify the mechanisms that appear to make it function, the implicit rules that seem to govern it, to carve out the distinction between the way things are and the way they might be.  To want, to need, to secure this understanding is the most human of activities.  In Geertz's words, it is the drive to encompass reality.  It is a matter of solving puzzles for the satisfaction of the solving rather than the utility of the solution.  

Sometimes the consequences are breathtaking in their sweep and power.  Take Franz Boas.  His studies of folk tales resulted in no less than the currently orthodox view that culture is a learned rather than inherited phenomenon.  So I would say we perhaps can come full circle with my inquiry.  Is SLR connected to social change? No, in the short term, which is where I began, but possibly yes in the long term by helping constitute the fundamental ways in which we understand human interaction and its potential.

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