The Impact of Law: A View from North of the Border
Kritzer, Herbert M., Judicature
The impact of law: A view from north of the border Consequences: The Impact of Law and Its Complexity by W. A. Bogart. University of Toronto Press. 2002. 416 pages. $95. $29.95 (paper).
There are two ways to read W. A. Bogart's Cosequences: The Impact of Law and Its Complexity. First, Bogart himself sees the book as an argument that we need to recognize that we know relatively little about the results produced by law. Second, in his use of the United States to illustrate his concerns about what may be unrealistic expectations of what law can accomplish, it becomes a book on American exceptionalism in law. While there have been many recent works on American legal exceptionalism, almost all have been by Americans, often lamenting the depths to which the United States has fallen in its excessive reliance on law, lawyers, and litigation. The fact that Bogart is a Canadian (professor of law at the University of Windsor) has the benefit for American readers (if providing an analysis by an astute observer looking in rather than one of us who is swimming around in the fishbowl thinking how much better, or at least different, things might be on the other side of the glass.
In many ways, Bogart's own core argument in Consequences is neither complex nor surprising: we simply are not very good at predicting the consequences of law, and thus law may not be a particularly good vehicle for social engineering. This is not the same argument advanced by Gerald Rosenberg in his much-discussed Hollow Hope. For Bogart, the issue is not that courts fail to produce social change, but that we cannot predict when legal change, whether through courts or through legislatures, will successfully produce social change or when our efforts to accomplish social change through law will either make things worse or introduce unanticipated, undesirable side consequences.
Undoubtedly Bogart is correct on this central point. The problem is that the central point is too narrow, and this may undercut the central conclusion he seeks to convey: "Consequences urges more caution in turning to law as a solution to complex social, political, and economic, issues when we know so little about what effects law actually produces" (p. 4). Someone whose field is not law could just as easily have written a book with a slightly different title: Consequences: The Impact of Policy Change and Its Complexity. That is, law is simply one vehicle for effecting public policy, and all policy change produces uncertainty. Many policy changes fail to accomplish their intended goals. Some policy changes produce results that are the opposite of what was intended. And most policy changes produce at least some unanticipated consequences.
Of more importance to readers knowledgeable about the uncertainties of law and policy are Bogart's observations and analyses of law in the United States. He sees a focus on the U.S. as crucial because he believes that the "growth of legalization has occurred especially in the United States." Given the emphasis on the rule of law around the world, and the growth of "judicialization," a good argument could be made that legalization has grown more rapidly in other, perhaps many other, countries. Still, whether or not legalization has grown most rapidly in the United States, Bogart's emphasis on the U.S. is appropriate because "America, more than any other industrial nation, is the land of law" (pp. 5-6).
In opening the book, Bogart lays out a variety of pieces of evidence that law has grown rapidly over the second half of the twentieth century. The indicators he uses are familiar: growth in the number of pages in the Federal Register, in the size of statute books, in the number of published court cases, in the number of lawyers, and in law-generating bodies (i.e., regulatory agencies). The result, according to Bogart, is a "qualitative and quantitative shift in the way that [the United States, Canada, and England] are invoking law" (p. …