Friday, April 24, 2009 8:00am-7:00pm Great Hall, Bancroft Hotel, Berkeley
BUILDING THEORY THROUGH EMPIRICAL LEGAL STUDIES
Center for the Study of Law and Society
University of California, Berkeley
Friday, April 24, 2009
Session I: KEYNOTE ADDRESS
Richard Lempert, University of Michigan (Emeritus); Science and Technology Directorate, Dept. of Homeland Security
“The Inevitablity of Theory: Get Used to It“
Session II: LITIGATION, COMPLAINT MOBILIZATION, AND INEQUALITY
Calvin Morrill, U.C. Irvine, Lauren Edelman, U.C. Berkeley, Karolyn Tyson, University of North Carolina, and Richard Arum, N.Y.U.
“Legal Mobilization in U.S. Schools: How Race Conditions Students’ Response to Laws and Rights.”
Sociologists of law have long pointed out that legal rights must be mobilized in order to be effective, and that mobilization is a social process in which those most at risk for rights violations may be the least likely to take advantage of their legal rights. All previous studies of rights mobilization, however, have focused on the rights of adults; we know very little about how youth perceive and respond to rights violations in schools. Furthermore, where previous studies focus only upon the mobilization of rights through formal legal channels, we conceptualize legal mobilization as a multidimensional construct that includes legal, quasi-legal, and extra-legal actions, as well as doing nothing. In this study, we draw on quantitative and qualitative data to understand how racial and ethnic hierarchies mediate differences in perceived rights violations and legal mobilization among youth in schools. We focus on three types of rights violations: sexual harassment, discrimination, freedom of speech, or school discipline. In our survey sample of 5,064 students attending high schools in the metropolitan areas of Los Angeles, New York City, and North Carolina, we examine responses to both actual and hypothetical rights violations. We supplement the survey data with comparative ethnographic data drawn from six of the schools, focusing on stocks of accounts – vocabularies of motive – that students draw on to make sense of and explain their responses to perceived rights violations. Our work suggests the analytic utility of using a multidimensional approach to legal mobilization, as well as how race/ethnicity and actual experiences of rights violations create inequality in the mobilization process. Our work also suggests the importance of using multiple methods in studying legal mobilization.
Sandra R. Levitsky, University of Michigan.
“‘What Rights?’ The Construction of Political Claims to American Health Care Entitlements.”
The inefficiencies and inequities of the U.S. health care system are by now legendary. And yet, despite well-documented—and rapidly growing—unmet health care needs, Americans have been notoriously reluctant to treat health security as a right of citizenship. This paper argues that the longstanding ambivalence of the American public toward “health security” entitlements can be attributed to the way in which new claims for entitlements emerge in response to new social risks. Drawing on data from a qualitative study of individuals caring for adult family members with chronic diseases, I examine the effect of unmet health care needs on the beliefs that individuals hold about family, market, and state responsibility for health security. I find that when imagining solutions to unmet long-term care needs, individuals evaluate a range of alternative social arrangements, but they select the model that is most consistent with previously-existing beliefs about family, market, and state responsibility for long-term care provision. This process of discursive assimilation, of integrating new needs for public provision with more familiar ways of thinking and talking about social welfare, produces claims for rights or entitlements that challenge existing social arrangements, but do so within a welfare state framework that conceives of only a minimal role for the state in safeguarding social welfare.
Margo Schlanger, Washington University.
“The Equal Employment Opportunity Commission and Structural Reform of the American Workplace.”
Theoretically grounded discussions of federal agency operation have only rarely looked at litigating agencies. And theories of civil litigation have largely omitted cases brought by bureaucratic governmental agencies. The project of which this paper is a part examines this gap in prior literature. The Equal Employment Opportunity Commission litigates just three to four hundred employment discrimination cases each year, out of 14,000-20,000 total employment cases filed annually in the federal courts. Only a small portion of the EEOC’s cases are easily recognizable as what Owen Fiss labeled “structural reform” litigation. Yet that small portion is vitally important. The EEOC’s settlements (the cases are rarely litigated to termination) are highly salient in the world of employment litigation. This paper deals with the terms of EEOC injunctions over ten years, from 1997 to 2006. Litigation theory would predict that those terms would vary because of judicial ideology, political administration, and other features of the case settings. Yet the literature on agencies would predict agency dynamics to tamp down such variation, even over time. The paper looks at the evidence from decrees in light of these cross-cutting influences. It also examines differences between the EEOC’s litigation and class cases brought by private parties.
Session III: LAW AND ORGANIZATIONS
Alexandra Kalev, University of Arizona, and Tristin Green, Seton Hall.
“Attending to Relations: Theory, Research and Legal Implications of a Relational Approach to Discrimination at Work.”
Social scientists have long argued that the structural context of decisions and relations can affect biases and stereotypes, even automatic and unconscious ones. Scholars and practitioners focus on formal personnel procedures and accountability as organizational structures that can tame discriminatory decision making, but research suggests that their effects on ascription are mixed. We argue that discrimination reducing structures should also address relational sources of discrimination taking place in day to day social interactions and relations at work. We review research showing that employers can reduce relational discrimination by organizing work in ways that change the structure of work from segregated/stereotype-reinforcing to integrated/stereotype-challenging. We close with discussing lessons for the role of the law in structuring workplace relations.
Lauren Edelman, U.C. Berkeley, Linda Krieger, U.C. Berkeley & University of Hawaii, Scott Eliason, University of Arizona, Catherine R. Albiston, U.C. Berkeley, and Virginia Mellema, Equal Employment Opportunity Commission.
“When Organizations Rule: Judicial Deference to Institutionalized Employment Structures.”
Institutional theory in sociology emphasizes the power of taken for granted ideas, norms, and rituals in guiding the behavior of organizations. Although there is now a considerable literature on how law and legal principles serve as institutionalized models for organizations, there has been far less attention to how organizational practices may serve as institutionalized models for courts. This article develops an institutional theory of legal endogeneity – a subtle yet powerful process through which institutionalized organizational structures and practices influence judicial conceptions of legality and interpretations of compliance with antidiscrimination law. We argue that, irrespective of their effectiveness, organizational structures such as grievance procedures, anti-harassment policies, evaluation procedures, and formal hiring procedures become symbolic indicators of compliance with anti-discrimination laws, first within organizations but eventually in the judicial realm as well. As organizational structures become increasingly institutionalized, lawyers and judges become more likely to associate them with rationality and fairness. Legal endogeneity has observable manifestations: judges increasingly refer to organizational structures in their opinions, find them relevant to determinations of legal liability, and ultimately defer to those structures by inferring nondiscrimination from their presence. We test legal endogeneity theory by analyzing a random sample of 1024 federal employment discrimination decisions from 1965-1999. We find that legal endogeneity has increased over time. Judicial deference to organizational structures appeared first in the district courts and later in the circuit courts. Our analysis also shows that deference is most likely where plaintiffs lack social and economic clout and where the legal theories put forward by the parties require judges to rule on organizational attributes that are not directly observable. We suggest that legal endogeneity weakens the impact of law because judges come to view organizational structures as indicators of legal compliance even when those structures are ineffective in combating discrimination.
Orly Lobel, University of San Diego, and Yuval Feldman, Bar Ilan University
“The Incentive Matrix: Experimental Studies of the Comparative Effectiveness of Regulatory Systems.”
Social enforcement — action by organizational actors of monitoring, identifying, and reporting legal violations — is widely recognized as a key factor in ensuring good governance. Many statutes, in such diverse policy areas as environmental, discrimination, financial, antitrust, and safety laws, protect employees against retaliation when they resist or report illegal activities. At the same time, regulatory strategies across policy fields are moving toward increased reliance on internal compliance systems and expect organizations themselves to provide direct incentives for employees to report their fellow employees’ or supervisors’ misconduct. Corporations, which frequently approximate regulatory agency design, thus provide internal reporting channels and incentivize their usage. In a series of studies, we examine the behavior of individuals when confronting workplace unlawful conduct. The experiments provide novel insights into the comparative advantages and competences of systems that incentivize compliance and social enforcement. The studies also examine the internal motivations and external costs of resisting or participating in organizational illegality. In the first stage study, we find that the likelihood and the manner of reporting will vary significantly depending on the type of illegality and is strongly correlated to perceptions of legitimacy, job security, and voice within the workplace. In a second set of experiments, we examine three prototypes of policy mechanisms to identify the optimal policy approach is under varying social conditions. At a broader level, the study provides lessons on individual and group behavior, such as motivational crowding-out, trust, and the ability of individuals to rationally trade-off the cost and benefits of their own decisions.
Session IV: JUDICIAL AND AGENCY POLITICS
Daniel Ho, Stanford University, and Kevin Quinn, Harvard University, and Erica L. Ross, Stanford Law School.
“The Empirical Dimensions of the Standing Doctrine and Judicial Voting.”
A widely touted gospel of constitutional history preaches that the standing doctrine was an invention by New Deal progressives to insulate new administrative agencies from judicial review. In the first large-scale quantitative empirical study of the Supreme Court’s standing doctrine, encompassing all standing issues decided from 1922-2006, we show that there are serious reasons to question this account. Briefly, our evidence is as follows. First, the standing doctrine made its appearance with unanimous agreement by progressives and conservatives alike, in an effort that appears more historically consistent with concurrent caseload management techniques. Second, the standing doctrine split coalitions during the New Deal, it did so in both directions. Indeed, for the duration of the New Deal court, the standing jurisprudence (insofar as one can call it that) was haphazard, without consistent ideological valence. By systematically selecting a defined population of standing cases, we show that cases relied upon in the New Deal account systematically discard inconsistent case law. Third, the standing doctrine prior to 1970 can hardly be called as such. It stood in for the merits, for the cause of action, and bore little connection to an article III inquiry.
Stephanie Lindquist, University of Texas, and Pamela Corley, Vanderbilt University.
“The Strategies of Judicial Review.”
Empirical studies of the Supreme Court’s exercise of judicial review have significantly advanced our knowledge of the inter-institutional dynamics associated with the Court’s practice of invalidating unconstitutional legislation. Several studies have demonstrated the justices’ apparently sensitivity to Congressional preferences regarding the challenged enactments; these studies have shown that the Court is less inclined to invalidate legislation when its content is congruent with the preferences of sitting members of Congress. Yet the Court has an even more nuanced tool at its disposal that offers the opportunity for more refined strategic calculations. Although these existing studies model a dependent variable (votes or case outcomes) reflecting whether the challenged law was upheld or invalidated, the Court actually has three options: it can invalidate a law on its face or as applied, or it can uphold the law. In that sense, the Court’s decision tree actually follows a two-step process: (1) is the law unconstitutional? (2) if yes, is the law unconstitutional on its face or as applied? Although these two steps are probably not completely independent, they nevertheless provide the Court with the option to render a decision invalidating a statute as applied that is far less aggressive—and likely far less offensive to Congress—than the decision to invalidate the legislation on its face. In this paper, we evaluate whether the Court’s choice to invalidate legislation on its face or as applied reflects this type of strategic calculation. Using data reflecting the justices’ votes to uphold or invalidate both state and federal legislation, we employ a two-stage model that reflects the Court’s two-stage decision making process to test the hypothesis that as-applied invalidations will be shaped by the Court’s strategic response to Congressional preferences.
Anne Joseph O’Connell, U.C. Berkeley.
“Vacant Offices in the Administrative State: Delays in Filling Top Executive Agency Positions, 1977-2005.”
Filling top-level positions in the federal administrative state is difficult. New administrations are quick to select the cabinet but take much longer to staff the next few layers. Appointee tenure is short, leading to many new openings a year or two later. Then, agency officials flee government service near the end of an administration. This paper explores organizational, institutional, political, and legal theories for agency vacancies—specifically, the paper tests various explanations for the different lengths of time a position stays open. Organizational explanations emphasize authority relationships; institutional explanations emphasize the relationship among the various branches of government and among interest groups: political explanations emphasize the policy preferences of the President: and legal explanations emphasize formal restrictions and qualifications for agency personnel. Using new comprehensive data on the start and end dates of every Senate-confirmed or recess appointee in executive agencies from President Carter through the first term of President George W. Bush, this paper shows that important executive agency positions appear to be vacant, on average, twenty-five percent of the time. In the final year of a presidential administration, this figure can reach fifty percent. The analysis also demonstrates that the factors influencing the length of vacancies are varied. The scope of and reasons for such extensive vacancies should encourage courts and scholars to reconsider theories of agency deference and reviewability of agency inaction, and should motivate policy reformers to improve staffing of the administrative state.