Academic journal article Law & Society Review

Speaking Truth and Power

Academic journal article Law & Society Review

Speaking Truth and Power

Article excerpt

It is, I suspect, no accident that it was a breakthrough in physics that caused Kitty Calavita (2002) to reflect on the need for law and society scholars to engage in acts of public discourse and aspire to become public intellectuals. Substantively, physics may be an unlikely source of theoretical help to law and society scholarship, but no discipline better epitomizes the role of science as a practical aspect of power and governance since the mid-20th century. I would suggest that we follow Calavita's meditation not to develop our envy of the methods and theories of physics, but to develop our reflexivity concerning the dangerous role of physicists as "enablers" of power. (Think J. Robert Oppenheimer and the Manhattan Project, not Einstein and the General Theory of Relativity.)

Perhaps the earliest example of a public intellectual who was also a law and society scholar in our contemporary sense was the legendary lawyer and social reform activist Crystal Eastman. One of the most innovative and influential socialists, feminists, and civil libertarians, Eastman was also a pioneer in using state-of-the-- art social science techniques to mobilize public demand for legal reform. Eastman became involved with social scientists at the Russell Sage Foundation shortly after graduation from NYU Law School, where she studied law while working to organize women workers in the garment industry only blocks from the law school. Her study of work accidents in industrial Pittsburgh, published in 1910 by the Russell Sage Foundation as Work-Accidents and the Law, combined some of the very first statistics ever collected documenting the casualty rate in American factories and railyards, with vivid case studies of particular workers injured or killed and the social fate of their families. The book helped change the tenor of the legal debate about work accidents, permanently undermining the notion that they were primarily a function of individual carelessness. It greatly strengthened the growing national movement to adopt workers' compensation laws and eliminate common law employer defenses. On the strength of the book, Eastman was invited to write a workers' compensation statute for New York. The law was struck down by the New York Court of Appeals, citing classic Lochnerian interpretations of due process and liberty of contract. Supporters of the law, however, amended the state constitution, and the Court of Appeals grudgingly approved a predecessor bill a few years later.

To Eastman, statistics were the "stuff of revolution." Describing the real costs of industrial success in terms of mutilated bodies and impoverished families, Eastman guaranteed that legal doctrines such as the "fellow servant rule" or "liberty of contract" would have to confront this human carnage within a common narrative of public discourse. Within two decades after Work-- Accidents and the Law, workers' compensation had triumphed almost completely; only the most retrogressive states retained any semblance of the common law tort liability system for work accidents. Yet her other goals-sexual and general liberation, power as well as compensation for workers, protection for civil liberties-proved harder to accomplish and far less amenable to revolution by statistics.

If we shift half a century to the 1960s and to the emergence of the modern law and society movement, one of the best examples of the law and society scholar as a public intellectual is Jerome Skolnick. Just out of graduate school, where he had written a thesis on alcoholism and religious background, Skolnick was hired in a non-tenured position to teach at the Yale Law School, which was just renewing a much older interest in law and the social sciences. Criminal procedure scholar Abraham Goldstein encouraged Skolnick to undertake a sociological examination of how police understand and implement the law on arrests, seizures, searches, and interrogations. Skolnick undertook an observational study of policing in two medium-sized cities, one on the West Coast and one on the East Coast. …

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