From legal realism to law and society: Reshaping law for the last stages of the social activist state

Law & Society Review, 1998 by Garth, Bryant, Sterling, Joyce

This article tells the story of the establishment of the Law and Society Association in the early to mid-1960s. To tell the story, the authors concentrate on the personal stories of the individuals active in that early period and on four university campus sites-the University of California at Berkeley, the University of Denver, Northwestern University, and the University of Wisconsin-at which much of the impetus was focused. They also examine key institutions that funded and/or encouraged links between law and social science-the Russell Sage Foundation, the Walter E. Meyer Research Institute of Law, and the American Bar Foundation. The article seeks also to investigate more generally the factors that came together to build a field of law and social science-which in turn helped to provide the ideas and build the institutions involved in the Johnson administration's War on Poverty. The field was created in part by a process involving both competition and cooperation between law and social science over the new terrain of social problems of racial discrimination, poverty, and crime. The authors suggest that, over time, the center of gravity of the field moved toward law, leaving the social science disciplines for the most part outside. The development of the field generally was also affected by the strong shift in the relative values of these social sciences-especially sociology-in relation to economics in the 1980s.

In the late 1950s and early 1960s, a network of social scientists and law professors took advantage of the rising prestige of social science to renew the Legal Realists' challenge to "legal formalism." One result of the new attack on behalf of social science was the Law and Society Association-now more than 30 years old. The LSA has grown and in many respects thrived over that period. Whether this history should be characterized as a "success" can of course be debated. From whatever position we assess the LSA's accomplishments, however, it is important to recognize that both accomplishments and limitations have been shaped by the individuals who "made up" the LSA in the first place. This article explores the origins and early years of the Law and Society Association. We seek to shed light on a number of theoretical concerns about the relationship between law and social science, but the primary ambition is simply to investigate this genealogy. As should be obvious, we believe we can understand the LSA-and our own careers and approachesl-better if we can make sense of the generation that preceded us. Not surprisingly, we consider the stories of the fathers and mothers of the LSA fascinating for their own sake. We would also like others to learn about these individuals, what brought them together, and what emerged as a consequence. Instead of trying to force the story into a carefully honed argument directed toward a series of theoretical conclusions, therefore, we have given precedence to the details of the personal stories of the protagonists.

At the same time, however, we have imposed what we hope is a relatively gentle framework of structural sociology. The story of LSA provides a perfect window to examine the question of the relationship between law and social science. More generally, that relationship is itself central to issues about the transformation of the state. Academics and academic ideas provide the expertise and legitimacy crucial to such transformations. What is normally characterized as "academic gossip," therefore, is quite important to our theoretical interests, since academic ideas are not only produced and shaped by the "pull of the policy audience" (Sarat & Silbey 1988) but also by the need to build careers in a very hierarchical and status-conscious academic world (cf. van Maanen 1977). The stories that intersect in this article are the product of many accidental circumstances, but the opportunities that were presented were not random events. Opportunities in the area of law and social science depended on what resources these individuals could bring, what the external world meant for the value of those resources, and the informal networks that provided the knowledge and information necessary to learn and take advantage of opportunities.

Our account, therefore, will provide the information necessary to see what social and intellectual capital the protagonists brought, how that changed over time, who their contacts were, and what opportunities were presented. This focus, as we shall see, involves some simplifying assumptions, and we employ the language of investments, competition, and markets. We do not mean, however, to deny human agency or to question the motives of the actors. To say that most individuals try to build their careers on what their intellectual and social capital does not mean the same thing as saying that they are rational actors with selfish motives. The public interest lawyer whose only motives are to help the poor, for example, still tends to rely on the legal expertise and credential she has acquired-even when she says that the law is not helpful. Indeed, the quality of academic debates about law and social science (and law itself) would be improved if individuals were able to recognize-perhaps even acknowledge-that the positions we take in intellectual debates tend to relate to who we are.