1 Friedman, Lawrence, “the Law and Society Movement,” 38 Stan. L. Rev. 763, 766 (1986).Google Scholar

2 Id. Google Scholar

3 This self-consciousness is reflected in a substantial body of critical self-reflection. See Abel, Richard, “Redirecting Social Studies of Law,” 14 Law & Soc'y Rev. 805 (1980); Marc Galanter, “The Legal Malaise; Or, Justise Observed,” 19 Law & Soc'y Rev. 537 (1985); Stewart Macaulay, “Law and the Behavioral Sciences: Is There Any There There,” 6 Law & Pol'y 149 (1984); Austin Sarat, “Legal Effectiveness and Social Studies of Law: On the Unfortunate Persistence of a Research Tradition,” 9 Legal Stud. F. 23 (1985); Susan Silbey & Austin Sarat, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165 (1987); David Trubek & John Esser,”‘Critical Empiricism’ in American Legal Studies: Paradox, Program or Pandora's Box?” 14 Law & Soc. Inquiry 3 (1989).Google Scholar

4 Auerbach, Compare Carl, “Legal Tasks for the Sociologist,” 1 Law & Soc'y Rev. 91 (1966), and Philippe Nonet, “For Jurisprudential Sociology,” 10 Law & Soc'y Rev. 525 (1976).Google Scholar

5 See “The Boundaries of Legal Sociology,” 81 Yale L. J. 1086 (1972).Google Scholar

6 Id. Google Scholar

7 The Behavior of Law (New York: Academic Press, 1976).Google Scholar

8 See Black, 81 Yale L. J. at 1087. For a contrasting view of the idea of science in law and society research see Friedman, 38 Stan. L. Rev. at 766. Friedman asks, “Exactly what sort of a ‘science” does the law and society movement generate?” In his view.Google Scholar

A lot of the work, to be sure, meets the test of scientific method: rigorous observation of how insurance adjusters settle claims, laboratory experiments that simulate juries, statistical analysis of arrest data. But scientific methods are not enough to make law and society a science-in at least one very tough and demanding sense: a body of universal “laws” in the mode of physics or geology…. There is a qualitative difference between studying objects and forces in the physical world and studying legal systems. To be sure, many aspects of collective or social behavior can be studied rigorously. But the problem with “law” is that it cannot be unambiguously defined; it cannot be specifically marked off from the rest of the world…. Law is the only social process studied in universities that completely lacks any reasonable claim to universality. Id. at 766–67.Google Scholar

9 See Black, Donald, “Review of Law, Society and Industrial Justice,” 78 Am. J. Soc. 709, 714, (1972).CrossRefGoogle Scholar

10 Id. at 709.Google Scholar

11 Id. Google Scholar

12 Black refers to his new work as “a new sociological jurisprudence” (at 101).Google Scholar

13 Many of the “findings” presented in the book are straightforward restatements of propositions found in The Behavior of Law.Google Scholar

14 Black believes that “[L]egal sociology may increasingly become part of legal education. Law students may learn to assess the sociological merits of a case as well as the technical merits traditionally taught” (at 95). He suggests that the “incomprehensibility of law results from legal education in its present form,” and he imagines that “the day may come when law professors will ask their students to distinguish one case from another… and the answer will be sociological as well as legal” (at 31). Friedman, 38 Stan. L. Rev. at 778, presents a different picture of the reception of sociological knowledge in law schools when he says that, “In the foreseeable future… the law and society movement will remain outside the law schools, pressing its nose against the glass, mildly jealous of the success of its stepsister, economics, most definitely a wall flower at the ball.” Friedman's diagnosis is implicitly shared by Martha Minow, “Law Turning Outward,”Telos (forthcoming). Minow, an active participant in the law and society community, writes about the various interdisciplinary movements in legal education without identifying sociology of law. For her, the most notable thing about sociology of law in law schools is its absence.Google Scholar

15 For speculations about why they do so, see Sarat, Austin & Silbey, Susan, “The Pull of the Policy Audience,” 10 Law & Pol'y 97 (1988).Google Scholar

16 Black is aware of the critical potential of his work and of its potential incompatibility with certain assumptions about the rule of law. Nonetheless, as I will argue below, his search for an audience within law, combined with his insistent positivism, undercuts its ctitical bite.Google Scholar

17 Black, 81 Yale L. J. at 1093.Google Scholar

18 See note 14.Google Scholar

19 Black seems somewhat undecided about the nature of the claim he wishes to make in declaring victory. Thus we are told that since the publication of “The Boundaries” his project has “flourished” (at 4). Yet he speaks about that project as simply a “version of legal sociology.” It is almost as if he has reimagined the boundary-drawing project itself. Black seems less imperialistic, less intent on conquering the entire field and more interested in securing space for his own voice. Yet in the same paragraph in which he refers to the scientific sociology of law in such modest terms, he also claims that it represents “a new paradigm” (at 4) for the field.Google Scholar

20 In this regard Black seems to have succumbed to what 1 have elsewhere called “the pull of the policy audience.” See Sarat & Silbey, 10 Law and Pol'y at 97.CrossRefGoogle Scholar

21 See Sarat, 9 Legal Stud. F. at 23 (cited in note 3). See also Richard Abel, “Law Books and Books about Law,” 26 Stan. L. Rev. 175 (1973), and Malcolm Feeley, “The Concept of Laws in Social Science: A Critique and Notes on an Expanded View,” 10 Law & Soc'y Rev. 497 (1976).Google Scholar

22 There is considerable doubt whether Black's picture of the state of legal scholarship and legal education is accurate. See Tushnet, Mark, “Post-Realist Legal Scholarship,” 1980 Wis. L. Rev. 1383. However, the question of why Black acts as if realism had never come to the legal academy is itself an interesting one. In more than one place he asserts the continuing domination of legal formalism (at 22). It is as if by mounting such a claim, Black can present his brand of scientific sociology as insurgent, as radical, as outside a mainstream now shifted from sociology to law.Google Scholar

23 Brigham, John and Harrington, Christine suggest that one of the classic rhetorical tropes in legal realism is just such an effort to portray “the informed present against the darkest past.” See “Realism and Its Consequences: An Inquiry into Contemporary Sociological Research,” 17 Int'l J. Soc. L. 41, 44 (1989).Google Scholar

24 At this point in the text Black cites Hart, H. L. A., Concept of Law (Oxford: Clarendon, 1961) (“Hart, Concept of Law”); Lon Fuller, Morality of Law (New Haven: Yale University Press, 1964); and Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1976). This is, in some ways, an odd grouping. Of the three, only Hart is particularly interested in rules. Both Fuller and Dworkin are, in fact, critical of Hart for his exclusive focus on rules. In addition, it would be unusual to argue that law for Hart is a matter of rules in other than a definitional sense. While Hart believes that the validity of law is a matter of rules, he explicitly acknowledged that “it is plain that there is no necessary connection between the validity of any particular rule and its efficacy.” Hart, Concept of Law 100.Google Scholar

25 Research suggests that the question of legitimacy and consent is more complicated than Black‘s understanding would allow. See Merry, Sally, “Concepts of Law and Justice Among Working Class Americans,” 9 Legal Stud. F. 59 (1985), and Austin Sarat, “The Legal Ideology of the Welfare Poor” (unpublished manuscript, 1989).Google Scholar

26 See Llewellyn, Karl, “Some Realism About Realism,” 44 Harv. L. Rev. 1222 (1931), and id., “A Realistic Jurisprudence-The Next Step,” 30 Colum. L. Rev. 431 (1930).Google Scholar

27 Llewellyn, 30 Colum. L. Rev. at 431. See also Kalman, Laura, Legal Realism at Yale, 1927–1960 (Chapel Hill: University of North Carolina Press, 1986).Google Scholar

28 “We are all realists” is surely one of the most commonly heard phrases in the legal academy. While others, see Ackerman, Bruce, Reconstructing American Law (Cambridge: Harvard University Press, 1983) (“Ackerman, Reconstructing”), openly acknowledge the triumph of realism and try to preserve the legal mainstream in light of its insights, Black is busy discovering realism.Google Scholar

29 For a discussion of the indeterminacy thesis, see Singer, William Joseph, “The Player and the Cards: Critical Legal Studies and Nihilism,” 94 Yale L. J. 997 (1984).Google Scholar

30 For a discussion of the way such assumptions are played out in the sociology of law, see Trubek, David, “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575, 602 (1984).Google Scholar

31 While Sociological Justice does contain important alterations in Black's vision of the relation between science and policy, his vision of science itself remains unaltered.Google Scholar

32 For a discussion of these different aspects of legal realism, see Peller, Gary, “The Metaphysics of American Law,” 73 Calif L. Rev. 1152.Google Scholar

33 What counts as science in the sociology of law is discussed by Trubek, 36 Stan. L. Rev. at 600–605. See also Silbey & Sarat, 21 Law & Soc'y Rev. at 165 (cited in note 3), and Christine Harrington & Barbara Yngvesson, “Interpretive Sociologal Research: Responding to Double Institutionalization” (unpublished manuscript, 1989) (“Harrington & Yngvesson, ‘Interpretive Sociologal Research”).Google Scholar

34 For a general review of interpretivism, see Rabinow, Paul & Sullivan, William, eds., Interpretive Social Science (Berkeley: University of California Press, 1979). See also Clifford Geertz, “From the Native's Point of View: On the Nature of Anthropological Understandings,” in id., Symbolic Anthropology (New York: Columbia University Press, 1977).Google Scholar

35 As Trubek, 36 Stan. L. Rev. at 604, puts it, “An interpretivist understands law as a set of interrelated ideas and practices whose deep structures reflect an effort to order social existence in a meaningful way. Interpretivism leads naturally to the internal analysis of systems of legal ideas… to see how ideas and society shape each other.”Google Scholar

36 Id. Google Scholar

37 See Harrington & Yngvesson, “Interpretive Sociolegal Research” at 4.Google Scholar

38 Id. at 5.Google Scholar

39 Here Black is probably right. See Sarat & Silbey, 10 Law & Pol'y at 100–104 (cited in note 15).Google Scholar

40 See Peller, 73 Calif. L. Rev. at 1152.Google Scholar

41 Llewellyn, Contrast, 30 Colum. L. Rev. at 431 (cited in note 26), and Cook, W. W., “Scientific Method and the Law,” 13 A. B. A. J. 303 (1927). with Felix Cohen, “Transcendental Nonsense and the Functional Approach,” 34 Colum. L. Rev. 809 (1935).Google Scholar

42 See Cohen, 34 Colum. L. Rev. at 809, 822.Google Scholar

43 The closest that Black comes to an overt expression of a political position is, perhaps not surprisingly, put forth in the following statement, as a social-scientific type of observation rather than as a moral argument: “Virtually every legal thinker takes for granted that every trace of discrimination should be banished” (at 97).Google Scholar

44 For a more complete statement of this argument, see Sarat & Silbey, 10 Law & Pol'y at 97.Google Scholar

45 The rhetoric of “nowadays attract particular attention” suggests the transience of concerns for discrimination on the basis of race, class, and gender and suggests that concern for those instances of discrimination is trendy and faddish.Google Scholar

46 See Bumiller, Kristin, The Civil Rights Society (Baltimore: Johns Hopkins University Press, 1988) (“Bumiller, Civil Rights Society”), and Kimberle Crenshaw, “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” 101 Harv. L. Rev. 1331 (1988). The political effects of equating discrimination with statistical differentiation are discussed by Jonathan Simon, “The Ideological Effects of Actuarial Practices,” 22 Law & Soc'y Rev. 771 (1988).Google Scholar

47 Crenshaw, 101 Harv. L. Rev. at 1338.Google Scholar

48 Here there is some resonance between the sociology of law and the law itself. See Bumiller, Civil Rights Society. Also see Simon, 22 Law & Soc'y Rev. at 771, 787.Google Scholar

49 See 81 Yale L. J. at 1090–91 (cited in note 5).Google Scholar

50 Id. at 1090.Google Scholar

51 Id. at 1090–91.Google Scholar

52 See Sarat & Silbey, 10 Law & Pol'y at 100.Google Scholar

53 See Boorstin, Daniel, The Genius of American Politics (Chicago: University of Chicago Press, 1953).Google Scholar

54 See Stone, Deborah, Policy, Paradox and Political Reason (Boston: Little, Brown, 1988).Google Scholar

55 This phrase occurs repeatedly in Sociological Justice. It suggests that the world of sociological knowledge that Black holds out as useful in the legal world is every bit as hypothetical as the world of the first year law student in which everything is presented with the stipulation “everything else being equal.”Google Scholar

56 See, e. g., Heinz, John & Laumann, Edward, Chicago Lawyers (New York: Russell Sage Foundation, 1982). See also Marc Galanter, “Why the ‘Haves' Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Soc'y Rev. 95 (1974).Google Scholar

57 See Galanter, 9 Law & Soc'y Rev. at 114.Google Scholar

58 See Danzig, Richard, “Toward the Creation of a Complementary, Decentralized System of Criminal Justice,” 26 Stan. L. Rev. 1 (1973). For a criticism of such efforts, see Merry, Sally, “The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America,” in Richard Abel, ed., 2 The Politics of Informal Justice (New York: Academic Press, 1982) (“Merry, ‘Social Organization’”).Google Scholar

59 See Merry, “Social Organization” at 17.Google Scholar

60 For a discussion of the contradictory pulls of liberal law, see Unger, Roberto, Law in Modern Society (New York: The Free Press, 1975).Google Scholar

61 For one example, see Kluger, Richard, Simple Justice (New York: Knopf, 1976).CrossRefGoogle Scholar

62 See Sociological Justice ch. 5 n. 64.Google Scholar

63 See Merry, “Social Organization.” See also Austin Sarat, “The ‘New Formalism’ in Disputing and Dispute Processing,” 21 Law & Soc'y Rev. 695 (1988), and Susan Silbey & Austin Sarat, “Disputing and Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstitution of the Juridical Subject,” 66 Den. U. L. Rev. 437 (1989). Black partially acknowledges the problem when he says that “Delegalization might effectively relocate some discrimination to informal settings, but this would not necessarily duplicate the present system of state-sponsored discrimination” (ch. 5 n. 93).Google Scholar

64 For an interesting discussion of law's resiliency, see Fish, Stanley, “Law Wishes to Have a Formal Existence” (unpublished manuscript, 1989).Google Scholar

65 Tushnet, 1980 Wis. L. Rev. at 1386 (cited in note 22).Google Scholar

66 Brigham & Harrington, 17 Int'l J. Soc. L. at 41 (cited in note 23).Google Scholar

67 Id. at 42.Google Scholar

68 Id. at 44. See also Sarat, Austin & Felstiner, William, “Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office,” 98 Yale L. J. 1663 (1989).Google Scholar

69 See Lasswell, Harold & McDougal, Myres, “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 Yale L. J. 203 (1943). See also Ackerman, Reconstructing (cited in note 28).Google Scholar

70 See Polinsky, Mitchell, An Introduction to Law and Economics (Boston: Little, Brown, 1983). See also Richard Posner, The Economics of Justice (Cambridge: Harvard University Press, 1987).Google Scholar

71 See Sarat, 9 Legal Stud. F. at 23 (cited in note 3).Google Scholar

72 See Sarat & Silbey, 10 Law & Pol'y at 97 (cited in note 15).CrossRefGoogle Scholar