SESSION 1: HISTORY AS PROLOGUE
Harry Scheiber, University of California, Berkeley, Chair
Jerome Skolnick, New York University (Emeritus)
The Center for the Study of Law and Society: The First 25 Years
Jerome Skolnick will recount the roles of Philip Selznick, Sheldon Messinger and the Russell Sage Foundation in the early years of the Center, which he joined in 1962 and directed from 1972 to 1985. Jerry will also tell of the large program training grant from the National Institutes of Mental Health which provided 5-years plus an additional 5-years of support to foster student research in law and society. This NIMH grant was pre-JSP, so the Center was the sole support of graduate students in law and society. On reflection, Skolnick says, “My most important contribution may have been hiring Rod and Margo.”
Malcolm Feeley, University of California, Berkeley
The Center, Social Science of Law, and the Disciplines: History as Prologue?
In my remarks I will canvas the major research themes advanced within the Center for the Study of Law & Society over its first fifty years in light of research themes in the social science of law more generally, and in terms of the agendas of the social science disciplines. In so doing, I will address two questions, first, what contributions has the Center made to law and social science? And second, what contributions have both of these—the Center and law and social science—made to the disciplines? Finally, I’ll ask, what implications does all this have for the future?
Robert A. Kagan, University of California, Berkeley (Emeritus)
Three Sociolegal Research Agendas
One can roughly divide sociolegal studies into (1) a “sources of law agenda ” -- explicating the factors that shape the law and legal institutions; (2) a “process agenda”— describing and explaining variation in legal processes and decisionmaking; (3) a“legal consequences’ agenda” -- examining the variable effects of law and legal processes on social, political, and economic life. I will reflect on the Center’s role in these areas, particularly on the challenging legal consequences agenda.
Lawrence M. Friedman, Stanford University
Fifty Years: A View from Across the Bridge
CSLS has been important in many regards; part of a law school, but with a separate identity, and even its own small home away from the law school. Legal education has been historically strongly normative; the last fifty years have seen a shift toward the practical (clinical education), and toward new forms of normativity (critical legal studies). CSLS has had its own trends and fashions; but it has successfully preserved its vision of a true social science of law.
SESSION 2: LAW, RIGHTS AND SOCIAL CHANGE
David Lieberman, Chair/Discussant
Michael McCann, University of Washington
Beyond Legal Mobilization: Rethinking Rights and Power
Much contemporary scholarship on group struggles over rights builds on a legal mobilization approach that attempts to balance attention to instrumental and constitutive dimensions of social practice. While such studies often generate important insights, they tend to lean heavily toward instrumentalist analysis, emphasize unilateral adversarial legal action through actual or threatened litigation, and feature case studies of disputes that are narrowly bounded in time, space, and policy scope. This paper will make the case for a somewhat modified type of study regarding rights practices and struggles. The key commitment is to reversing the usual balance of attention to instrumental rights advocacy and context, emphasizing the latter through thick, multidimensional, dynamic analysis of power relations in which rights are embedded, discounted, displaced, denied, contested, and/or reconstructed in ongoing relational practice. This effort to “thicken” understandings of institutional and ideological power can benefit from examining contexts of rights practices over longer historical periods, across and among multiple spatial and institutional settings, and along multiple lines of legal policy. This approach will draw on the research design for my (and George Lovell’s) NSF-funded study of Filipino workers’ struggles for rights over seventy-five years, in two interrelated national contexts (Philippines and U.S. mainland), and through engagement with multiple policy domains of—criminal, labor, immigration, constitutional civil liberties, and anti-discrimination—law. This approach sacrifices the precision and parsimony of instrumental models in an effort to facilitate more complex and rich understandings about the multiple, ambiguous ways that rights do and do not “matter” for subaltern subjects struggling amidst hierarchical global power relationships.
Javier Couso, Universidad Diego Portales (Chile)
Law, Rights and Social Change in Latin America: Competing Models of Constitutionalism in an Era of Uncertainty
Ever since the ‘Law and Development’ movement, the study of law, rights and social change in Latin America (and more generally, in the global south) has been premised on the need to close the gap between the situation prevalent there and the ways of the ‘consolidated’ and economically ‘developed’ democracies of the north. Although in recent years there has been a move away from this approach in some scholarship, we still lack appropriate perspectives to make sense of developments in the constitutional arena of some countries of the region, in which post-Marxists radical movements that appeal to human rights discourses have launched constitutional assemblies aimed at introducing charters that completely challenge received notions of liberal constitutionalism (such as an autonomous judiciary). To what extent are these developments new to the region and not the re-play of the traditional ‘caudillo’ leadership that has historically been so strong in Latin America? Are the ‘constitutional revolutions’ experienced in recent years by countries like Bolivia and Ecuador likely to inaugurate a new path to radical-democratic constitutionalism or a form of populism that ultimately undermines some of the basic features of the constitutional ideal? Finally, which socio-legal approaches are best suited to study the phenomena?
Laura Beth Nielsen, Northwestern U. & American Bar Foundation
Law in Motion: The Multiple Futures of Law and Society Research
(with Robert L. Nelson and Ellen C. Berrey)
The future of Law and Society research lies in our discipline’s history. Our future is to do what we have always been doing. The future is one in which socio-legal scholars are mindful about the connections between theory, method, and practice to build on and create newempirically-informed, theoretically-rich analyses of contemporary legal and policy questions. While topics, goals, and methods may be familiar as part of our rich tradition, law, legal analysis, and legal advocacy always are in motion which gives rise to multiple considerations. Law & Society faces new problems, new methods (dynamic), and new practical needs (giving voice to and for different audiences). This agenda meets up with new opponents, new power dynamics, and new challenges. This paper focuses on the multiple futures of Law & Society: multi-methdological; multi-persepctival; and multi-vocal. This paper combines analysis of some of the research in Law & Society that exemplifies these trends and my own research on employment civil rights litigation to interrogate the necessity of a “multiple” approach for our “multiple futures.”
Charles Epp, University of Kansas
Rights, Inequality, and the Administrative State
Formed in the civil rights era, the Law & Society community’s research has since been broadly framed by that era’s aspirations and failings. Thus, core research agendas have examined how social movements have deployed law and rights claims to challenge traditional hierarchies and how these hierarchies are changed but also reinforced by the law in action. Fifty years on, American law and formal legal processes are now “color-blind” and “gender neutral”—and still plagued by racial, gender, and class disparities. Too often our research has simply documented the fact of these disparities and has assumed that their source lies in inchoate prejudices and power relations. We need to do more: to empirically identify the institutional processes that facilitate or encourage the individual choices that generate inequalities in the law. In this paper I briefly summarize my past research on how rights emerge and are modified in the interaction between social movements and the institutions of the administrative state. I then focus in more detail on my current research on the institutional sources of racial inequalities in official legal processes, with specific attention to the police policy of investigatory stops, how this policy emerged from the legal reforms of the civil rights era, and how it generates deep racial disparities in police stops and searches.
SESSION 3: LAW, CULTURE AND INEQUALITY
Catherine Albiston, University of California, Berkeley, Chair/Discussant
Kitty Calavita, University of California, Irvine (Emerita)
Terms of Engagement: Sociolegal Research in an Era of Mass Incarceration
A common theme of Law & Society Association presidential addresses over the last two decades is a call for scholarship that speaks to the major social issues of the day, with race and inequality recently being important foci. I take up this challenge, and extend it, as I argue here that in this era of mass incarceration, prison is one of the most significant institutions reproducing racialized inequality, yet it is relatively understudied. Important work has been done on the racial disparities that lead to the disproportionate warehousing of people of color in the United States and on the collateral and lasting damage of a prison record. But, at a time when one in every hundred adult Americans—and one in every eight young Black men—is in prison, we know relatively little about the impact of prison itself as an institution. In this paper, my empirical focus is on the inmate grievance system as I explore the conflicting logics of incarceration and rights that together define this post-civil rights era. I offer evidence suggesting that prison’s peculiar institutional location on the fault line of these opposing logics has repercussions not only for inmates but for their keepers, and for the reproduction of inequality.
Leti Volpp, University of California, Berkeley
The Indigenous as Alien
Immigration law's focus is nation state sovereignty and the ability of the state to exclude or deport aliens, who are understood to move spatially to the nation state, seeking entry or admittance. But this vision of immigration law fails to recognize settler colonialism, and, in particular, its grounding on preexisting indigenous populations' territory. This paper seeks to examine the reasons for this omission, as well as its consequences. This omission is, in part, a product of how the field considers space, following the tradition of Westphalian sovereignty, forgetting the possibility of a "layered sovereignty" that might more accurately describe the relationship between indigenous sovereignty and the sovereignty of settler societies.And this omission is, in part, a product of how the field thinks about time. Immigration scholarship tends to presume not only that borders are spatially fixed, but that they are fixed over time, so that states have always existed within their current territorial borders. The focus of inquiry then becomes the lawfulness of the already existing’s state’s deployment of sovereignty to keep out or expel noncitizens. Forgotten is how states came to be. This paper will examine the political theory underpinning immigration law, political theory that imagines a social contract quite different from what has been termed a "settler contract.” The consequences of this settler contract for indigenous populations, including their transformation into aliens, will be discussed.
Kathleen Hull, University of Minnesota
The Legal Subjectivities of Lesbian, Gay, Bisexual and Transgender People
The cultural turn in sociolegal studies inspired a renewed interest in interpretive approaches to people’s subjective experiences of law. In particular, empirical investigations of legal consciousness blossomed, and many of these studies focused on the legal subjectivities of marginalized groups and individuals. But one recent review of this literature argues that the concept of legal consciousness may have lost its usefulness, in part because recent studies have neglected the critical perspective that originally gave the concept its force. In this paper, I examine recent research on the legal subjectivities of lesbian, gay, bisexual and transgender (LGBT) people, with particular attention to the deployment of the concept of legal consciousness. Drawing on my own past and current research, as well as the work of other sociolegal scholars, I argue that legal consciousness and related concepts have been important for developing cultural interpretations of social and legal marginalization, at least for some forms of inequality. I also argue that much of the research on LGBT legal subjectivities retains the critical stance that first inspired the conceptualization of legal consciousness, even as the particular case of LGBT consciousness may cause us to rethink what it means to do critical scholarship on legal subjectivities.
David Wilkins, Harvard University
Racing the Tournament: Using Socio-Legal Research to Explore Race, Merit, and Opportunity in Large Law Firms
This paper will utilize excerpts from over 200 in-depth interviews with black lawyers working in large law firms to explore the real rules under which associates compete for partnership in these institutions and the complex role that race plays in defining and structuring this process. In so doing, I hope to challenge both the traditional account, most frequently told by managing partners, that characterizes the “tournament of lawyers” that structures the internal labor markets of elite firms as the ultimate meritocracy where black lawyers fail to succeed either because they are uninterested or unqualified, as well as popular critical narratives that blame the lack of black progress almost entirely on exogenous constraints such as lingering express or implicit bias or institutional racism. Although I believe that there is merit in both of these accounts, the lived experience of the black lawyers in my study reveals a much more complex interaction among changes in the structure and culture of elite firms that have made it more difficult for any lawyer to succeed in this environment, evolving racial norms and patterns of interaction that raise particular challenges (as well as opportunities) for black associates, and the rational, but sometimes counterproductive, ways that particular black lawyers have chosen to respond to these structural and racial incentives. My hope is that exploring this complex mix will lead law and society scholars to take a more institutionally grounded and empirically driven approach to understanding the intersection of race and opportunity in the legal profession and elsewhere.
SESSION 4: GLOBAL GOVERNANCE
Jonathan Simon, University of California, Berkeley, Chair/Discussant
Tom Ginsburg, University of Chicago and American Bar Foundation
The Future of National Constitutions in a Global World
National constitutions are transforming. Whereas the classic image of a constitution is a self-articulation by a group of fundamental principles to bind them together as a people, recent constitutions are more likely to reflect norms developed outside the nation-state. I suggest that national constitutions are also likely to look more like statutes or contracts, designed to achieve instrumental purposes, albeit in a global vocabulary. They will become less enduring and more amenable to change. And they will be sites of a large struggle between technocracy and democracy, in which constitutional judges are likely to find themselves in a mediating role.
Sida Liu, University of Wisconsin
Legal Profession as a Social Process: A Theory on Lawyers and Globalization
In the early 21st century, the legal profession is becoming increasingly connected and mobile worldwide. Mega corporate law firms have expanded from Western Europe and the United States to globalizing cities in Asia, Latin America, and other parts of the world, contesting and renegotiating the boundaries between global and local law practice. Meanwhile, a large number of international law students entered American and British law schools to receive "global" legal training. The scale and intensity of lawyers’ mobility across the globe have reached a new level. These developments in the age of globalization call for a new theoretical perspective on the legal profession. This paper proposes a processual theory of the legal profession, a theory that emphasizes the formation of social boundaries and the patterns of mobility in lawyers’ practice. In contrast to previous socio-legal theories that focus on the social structure of the bar, the profession’s market monopoly, lawyers’ workplace interaction, or lawyers’ role in politics, this processual theory argues that legal profession is neither a form of market control nor a fixed social structure, but a social process that involves boundary-work and exchange between professional groups as well as mobility across spatial areas and status hierarchies. The history and structure of the legal profession are produced in these various social processes, and globalization has accelerated their speeds and magnitudes.
Sally Engle Merry, New York University
Sociolegal Perspectives on Human Rights
The basic principle of sociolegal scholarship, that law on the books differs from law in action, has deep relevance for the analysis of human rights law in practice, yet it has not been sufficiently incorporated into the analysis of human right law. Recent sociolegal scholarship on human rights social movements and the localization of human rights discourses and documentation technologies provides a richer way of understanding how human rights acts in a transnational world of highly unequal nation states.
John Hagan Northwestern University and American Bar Foundation
Is California Mass Incarceration a 'Complex Humanitarian Emergency' - or Worse?
The State of California built more than 20 prisons in the 20 years from 1980 to 2000. This massive construction project was accompanied by more than a quadrupling of the California prison population. In anticipation of the Universal Periodic Review conducted by the United Nations High Commission on Human Rights, the National Conference of Black Lawyers challenged both the overall scale and the disproportionate concentration of the incarceration of African-Americans from 1980 to 2000 in the United States as a fundamental violation of human rights. International population health scholars conceptualize and study crises of this scale as “complex humanitarian emergencies.” This paper evaluates the theoretical and empirical usefulness of this framework for studying the California prison boom and concludes that a conceptualization that goes beyond humanitarian concerns and further stresses the violation of human rights is required to capture the massive scale and systematic concentration of this human rights crisis.
César Rodríguez-Garavito, Universidad de los Andes (Colombia)
Mapping Global Justice: Law, Society and Justice for a Post-Westphalian World
Since its origins, law and society scholarship has combined an analytical commitment to interdisciplinary research with a normative concern with social justice. What does this double commitment mean in a globalized world? Drawing on Nancy Fraser’s theory of transnational justice, I argue that this question needs to be decomposed into three elements: the “what”, the “who”, and the “how” of global justice and studies thereof. Just as the twin crises of the Westphalian political order and global neoliberalism unsettle the assumptions of theories of justice, they also challenge the familiar modes of production and circulation of socio-legal knowledge. As a result, the questions on the “what”, the “who” and the “how” are up for grabs. In this paper, I illustrate these questions and suggest some answers with evidence from transnational research and advocacy projects on labor rights, intellectual property and access to medicines, socio-environmental conflicts in indigenous peoples’ territories, and Afro-descendants’ struggles for racial justice in the Americas. My argument is twofold. First, I claim that a common process cuts across these and other transnational socio-legal fields: the replacement of substantive justice claims (be they on redistribution, recognition, or participation) with procedural issues (e.g., the need for “consultation”, “stakeholder involvement”, or “empowerment”). Thus, discussions about the “how” of global governance tend to crowd out discussions about the “what” of global justice. This tendency has largely been mirrored in the scholarship on law and globalization. I thus posit that a post-Westphalian approach to law and society needs to critically engage global governance from the vantage point of global justice. Second, I argue that this calls for new answers to the questions about the “who” and the “how” of socio-legal studies on globalization. I suggest that ongoing transformations in geopolitics and information technology allow for the decentralization of authorship and the open circulation of knowledge through truly multipolar networks of transnational, multilingual, and cross-cultural collaboration.
SESSION 5: IN THE ACADEMY
Calvin Morrill, University of California, Berkeley, Chair/Discussant
Austin Sarat, Amherst College
Laura Gómez, University of California, Los Angeles
Edward Rubin, Vanderbilt University
Lauren Edelman, University of California, Berkeley