Social Science, Social Policy & the Law

Social Science, Social Policy & the Law

Patricia Ewick
Robert A. Kagan
Austin Sarat
Copyright Date: 1999
Published by: Russell Sage Foundation
Pages: 400
https://www.jstor.org/stable/10.7758/9781610441919
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  • Book Info
    Social Science, Social Policy & the Law
    Book Description:

    Social science has been an important influence on legal thought since the legal realists of the1930s began to argue that laws should be socially workable as well as legally valid. With the expansion of legal rights in the 1960s, the law and social science were bound together by an optimistic belief that legal interventions, if fully informed by social science, could become an effective instrument of social improvement. Legal justice, it was hoped, could translate directly into social justice. Though this optimism has receded in both disciplines, social science and the law have remained intimately connected.Social Science, Social Policy, and the Lawmaps out this new relationship, applying social science to particular legal issues and reflecting upon the role of social science in legal thought.

    Several case studies illustrate the way that the law is embedded within the tangled interests and incentives that drive the social world. One study examines the entrepreneurialism that has shaped our systems of punishment from the colonial practice of deportation to today's privatized jails. Another case shows how many of those who do not qualify for legal aid cannot afford an effective legal defense with the consequence that economic inequality leads to inequality before the law. Two other studies look at the mixed results of legal regulation: the failure of legal safeguards to stop NASA's fatal 1986 Challenger launch decision, and the complicated effects of regulations to curb conflicts of interest in law firms. These two cases demonstrate that the law's effectiveness can depend, not only on how it is drafted, but also on how well it harmonizes with pre-existing social norms and patterns of self-regulation.

    The contributors to this volume share the belief that social science can and should influence legal policymaking. Empirical research is necessary to offset anecdotal evidence and untested assertions. But research that is acceptable to the academy may not stand up in court, and, as a result, social science does not always get a sympathetic hearing from legal decision makers. The relationship between social science and the law will always be complex; this volume takes a lead in showing how it can nonetheless be productive.

    eISBN: 978-1-61044-191-9
    Subjects: Law, Political Science, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Contributors
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
  5. Introduction Legacies of Legal Realism: Social Science, Social Policy, and the Law
    (pp. 1-38)
    Patricia Ewick, Robert A. Kagan and Austin Sarat

    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? These questions provided the basis for a symposium of leading sociolegal scholars who were brought together in April 1997 to consider the relationships among social science, social policy, and law. The purpose of this symposium was to take stock of what social science has contributed, what it might contribute, and what barriers stand in the way of using social science more effectively to make...

  6. PART I HISTORICAL AND STRUCTURAL ANALYSES OF LAW
    • Chapter 1 Privatization and Punishment: Lessons from History
      (pp. 41-67)
      Malcolm M. Feeley

      In this essay, I examine two seemingly unrelated episodes in the history of penal sanctioning: transportation of felons from England to North America in the seventeenth and eighteenth centuries and the movement for the privatization of corrections in contemporary America. I link these two seemingly disparate policies separated by centuries and continents by focusing on features they share in common. I want to show that the same dynamics and consequences that are readily observable in the past policy of transportation (owing perhaps to historical distance and perspective) also occur in contemporary policies on correctional privatization. This effort will reveal what...

    • Chapter 2 On Stage: Some Historical Notes About Criminal Justice
      (pp. 68-100)
      Lawrence M. Friedman

      Crime has been a major political issue in the United States for many years—certainly for most of the period since 1950. In recent years, according to television and the daily press, crime has become either the number one issue or something close to it; it has gained at the expense of health care, welfare reform, nuclear proliferation, the budget deficit, unemployment, toxic wastes, the high cost of living, the crisis in Yugoslavia, and whatever other rivals are out there.¹ Election campaigns are often heavily canted toward the issue of crime.

      If crime is a major issue, then so is...

    • Chapter 3 Beyond the Law of Evidence: Facts and Inequality in Criminal Defense
      (pp. 101-136)
      Kenneth Mann

      The criminal trial is in large part a process of image-making through the control of facts. Each of the parties seeks to present its own image of what “actually happened.” Trials, of course, are not only about facts. Sometimes the facts are assumed, and the parties dispute only the legal consequences of those facts. Trials vary in the degree to which factual issues as opposed to legal issues predominate. In this chapter, I focus on the control of facts in criminal trials, and I view the trial as a process of image-making. In so doing, I seek to show how...

  7. PART II BARRIERS TO INFLUENCE
    • Chapter 4 A Bad Press on Bad Lawyers: The Media Sees Research, Research Sees the Media
      (pp. 139-169)
      Deborah L. Rhode

      Jokes about lawyers have become so common in American culture that there is now a recognized subspecialty in jokes about lawyers. A recent addition to this collection summarizes some of the sleaziest conduct that humorists attribute to the profession and then asks, “How many jokes about lawyers are there? Answer: One. The rest are all documented case histories.”

      For those of us who study the legal profession, the quip captures an unintended insight. It is dispiriting to note how readily folklore passes for fact in discussions about lawyers. On topics involving regulation of the legal profession, systematic research plays at...

    • Chapter 5 Maps, Gaps, Sociolegal Scholarship, and the Tort Reform Debate
      (pp. 170-209)
      Neil Vidmar

      This chapter is about mapping the tort system and a body of empirical knowledge that has only developed over the past dozen years. Stan Wheeler was among the first to draw attention to the need for systematic information if we are to understand the legal system and develop rational policies rather than rely on anecdotes and intuition. In the early 1970s, Wheeler spelled out the concept of legal indicators and proposed collecting standardized data on variables such as litigation filing patterns, disposition patterns, legal manpower resources, and public knowledge and attitudes about the legal system (Wheeler 1971; see also Hensler...

    • Chapter 6 Hunting for Bias: Notes on the Evolution of Strategies for Documenting Invidious Discrimination
      (pp. 210-257)
      Jack Katz

      Since the 1950s, academic research has increasingly sought to document the reach of invidious discrimination in U.S. society. As a quick indicator of the scale of change, we can take an electronic look at the annual increases since the mid-1970s of the research literature on bias. A search, conducted in mid-1998, of the title word “bias” inSociological Abstractsproduced five articles for 1972, ten for 1976, sixteen for 1985, twenty-five for 1990, and thirty-six for 1995.¹ The increase in numbers is less revealing about the dynamics of social thought than is the expansion of targets. What has expanded are...

    • Chapter 7 Good for What Purpose? Social Science, Race, and Proportionality Review in New Jersey
      (pp. 258-288)
      David Weisburd

      Social scientists stood for many years on the sidelines of the law, calling for courts to make greater use of social science evidence in decisionmaking. The initial references to social science in court opinions in the first half of our century were scarce and often prefaced with cautions noting that social science facts were not legal facts as they were conventionally understood in the law (Monahan and Walker 1988). In part, it was that social science did not constitute a traditional source of evidence in the law that inhibited its use. But it is likely that the scarcity of social...

  8. PART III LAW AND THE REORDERING OF SOCIAL RELATIONS
    • Chapter 8 Boundary Work: Levels of Analysis, the Macro-Micro Link, and the Social Control of Organizations
      (pp. 291-321)
      Diane Vaughan

      Much theory and research asserts that the violative behavior of organizations cannot be explained solely by the actions of their individual agents but is explained more accurately as a predictable and systematic product of certain characteristics of organizational systems: industries, professions, professional networks, the workplace (Abolafia 1997; Baker and Faulkner 1993; Braithwaite 1984; Calavita, Pontell, and Tillman 1997; Coffee 1977, 1981; Coleman 1987; Cullen, Maakestad, and Cavender 1987; Ewick 1981; Finney and Lesieur 1982; Fleisher, Goff, and Tollison 1992; Geis 1967; Gross 1978; Hawkins 1984; Kramer 1992; Leonard and Weber 1970; Passas 1990; Reed and Yeager 1996; Reichman 1992, 1993;...

    • Chapter 9 When You Can’t Just Say “No”: Controlling Lawyers’ Conflicts of Interest
      (pp. 322-376)
      Susan P. Shapiro

      Conflict of interest in the practice of law is like unprotected sex: you sleep with everyone your lover ever slept with. More precisely, you can be infected by every client you ever had and every client your partners ever had, even partners you do not know and never met, who practice in offices thousands of miles away, and partners of your partners—people who worked at the firm before you arrived and colleagues and clients they worked with in other jobs before they joined the firm. Actually, it is worse than unprotected sex. You can be infected by clients that...

  9. Index
    (pp. 377-387)