The Diffusion of Rights: From Law on the Books to Organizational Rights Practices
Barnes, Jeb, Burke, Thomas F., Law & Society Review
How does law change society? To gain new leverage on this long-standing question, this article draws on two lines of research that often ignore each other: political science research on the mobilization of law, and sociological research on the diffusion of organizational practices. Our insights stem from six case studies of diverse organizations' responses to the accommodation provisions in the Americans with Disabilities Act and related state laws. We found that different modes of exposure to the law combined with organizational attributes to produce distinct "rights practices"-styles of standard operating procedures and informal routines that reflect the understanding of legal requirements within an organization. The diversity of the organizational responses challenges simple dichotomies between compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization, and it underscores the importance of combining political science and sociological perspectives on law and social change.
Law is intensifying within economically advanced democracies across the globe (Galanter 1992; Dewees et al. 1991). As Kagan (2001:6) has noted, this growth stems from deep-seated features of modern industrialized societies-technological change, global competition, geographic mobility, and environmental degradation -that produce unforeseen social and economic dislocation, threats to health and job security, and clashes among cultural and ethnic identities. These risks, in turn, often generate conflicting political demands, as those who embrace change seek rights of inclusion, political access, and economic opportunity, while others who fear change demand legal shelter from new threats and harms. Legislatures and courts both in the United States and abroad have tended to respond to both sets of demands, providing layer upon layer of rights and legal protections (Kagan 1995, 2001; Schuck 2000:42).
The social consequences of this intensification of law, however, are unclear. They depend on the extent to which all this law filters into the nooks and crannies of social life. And as several decades of law and society research have shown, the relationship between law on the books and law on the streets is almost never straightforward. The proliferation of legal commands, then, returns us to one of the classic questions in sociolegal studies: how does law change society?
This article takes a fresh look at this question, bringing together two lines of research that have often ignored one another: one in political science on the mobilization of the law, the other in sociology on the diffusion of organizational practices. We draw our insights from six original case studies of the response of diverse public and private sector organizations within a single community to the accommodation regulations in the Americans with Disabilities Act (ADA; 1990) and related state laws, as well as interviews with lawyers, architects, consultants, and disability rights advocates.
We found that, despite differences in the specific rules governing the organizations in our study, key interpreters of the law within these organizations articulated a similar understanding of the rules: namely, the ADA and related state laws required them to make reasonable accommodations to people with disabilities. When pressed, they demonstrated little detailed understanding of the rules, including possible exceptions or defenses to the ADA's broad accommodation mandates.
While personnel across organizations shared a similar conception of the law, their organizations encountered the ADA in different ways. Some were forced to respond to an ADA-based complaint, others had to fulfill ADA regulations in order to receive a building permit, and still others experienced the ADA only as a generalized legal threat or a potential source of litigation. We found that these different modes of exposure to the law combined with the organizations' resources to produce different styles of response to the ADA. …