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Active Learning and Research
Active Learning and Research
Law and science now constitute two institutions of potentially competing authority in American society. Sociologist Patty Ewick has been investigating the place of law in the space of science.

Meet the Researchers: In America, all things come to law

Interview with Professor Patty Ewick
In a recent interview, sociologist Patty Ewick discussed her fascination with the presence of law in the everyday lives of Americans.

How do you bring your perspective as a sociologist to the study of law?

Often people think about law as a set of rules or commands. But the law is a living institution that has to be interpreted and applied. To understand what the law is-what ends up in the statute books, who ends up in prison, how constitutional rights are interpreted, etc.-we need to see legal actors and legal organizations in their historical and social contexts. You have to sit in courtrooms, ride in police cars, and interview people on the street to understand what the law is and how it operates.

That's where sociology comes in. Sociology is the empirical study of social life and social institutions such as the law, medicine, family, etc. These social institutions have their own internal logic and authority.

What do you mean by empirical?

Empirical study focuses on behavior and phenomena that can be observed. For example, by just reading a law book, you could never predict crime statistics. Arrests and convictions for rape, for instance, are influenced by things like a prosecutor's use of discretion in deciding when to try a rape case and prevailing cultural understandings of gender roles.

Can you give some other examples?

Yes. A Supreme Court decision is one example of a kind of behavior that can be studied empirically. Judges confer, talk, write and publish. A decision is affected by the justices' ideological commitments, biographies, and political affiliations. Right now there's a particularly conservative Supreme Court that doesn't like the Miranda warning. Last year everyone predicted that the Court would erode it. But it didn't. In their decision, the justices explained that the warning had become part of our popular culture. The Court was, in a sense, limiting its own legal discretion by deferring to the way Miranda had emerged in the life of police stations, television shows, and citizens' expectations-the popular life of law.
But there's a danger in seeing the law just in the regal, magisterial moments of Supreme Court decisions. What gets funneled up to that pinnacle of our legal system is really a result of sequential decision-making. Something like 85% of all legal cases are initiated by citizens. An individual citizen decides, based on a variety of circumstances, whether an issue is worth pursuing using the legal system. The circumstance may be as simple as whether he or she has insurance coverage. Police only make an arrest about 50% of the time in situations where they have reason to believe that a crime has occurred. Then a prosecutor has to decide whether to try a case and what the charge should be. Frequently arrests are changed in plea-bargaining.

As I mentioned earlier, the law bears the imprint of cultural contexts and historical events. The recent terrorist attacks in the U.S. have had a profound affect on our legal system and our sense of our rights. Now we're willing to be searched. The writ of habeas corpus is being ignored in disturbing ways. The law will change in ways that we can't anticipate, because the attacks have dramatically changed our notions of security and freedom.

So sociologists of law are just as interested in the beat cop and his or her decision to apply the law by making an arrest, as they are in the opinions of a Supreme Court justice. They study such topics as policing, Supreme Court decisions, citizens' legal consciousness, criminal law, alternative dispute resolution, use of civil court, popular culture and the law, law and film, and law and TV.

You and coauthor Susan Sibley talk about these issues in your recent book The Common Place of Law.

Yes. The book is an examination of how the law is present in everyday life. In the last couple of decades sociologists have become more attentive to the life of the law outside formal legal institutions. Susan and I call it "legality"-that set of cultural meanings and interpretations that circulate in everyday life. People use these to invoke the law. They use the metaphor of a "right", as in 'I have right to be treated with respect.'

The book's cover shows a picture of a chair used to hold a parking space in a snowy street. A person doesn't own that parking place, but he or she claims it as a kind of private property. And most of the time people treat it like private property, in part because of a common law legal concept known as constructive use. The person's claim lies in the fact that he has shoveled, worked, and enhanced that space. It's a common and accessible example of how citizens understand the law in their everyday lives and appropriate a formal legal concept.

One question that prompted our research is why some people sue, while others facing the same situation would never sue. You can't make those predictions solely on the basis of the level of injury in a situation. For a long time people dismissed the question as simply one of economics and access to legal representation. We suspected there was a large cultural component that had to do with notions of responsibility, self-reliance, and the kind of connections that people had to one another.

The other thing we found was the ambivalence that people felt about the law.

By ambivalence do you mean that people want to be protected but not constrained?

Yes, but I think it goes deeper than that. People think lawsuits are often frivolous, that people are greedy, whining, and too litigious. When we asked 'Did you do anything about the fact that your neighbor spray-painted your house. Did you think about contacting a lawyer?', they'd say 'I'm not that kind of person'. We heard that over and over again.

But when you think about it, the rights that people cherish came as a result of citizen-initiated action. They take for granted the rights, privileges, and entitlements that others who have used the law have won for them. Susan and I concluded that, in part, ambivalence sustains the law as a central part of our culture. To paraphrase Alexis de Tocqueville, 'in America all things come to law'. He was struck by the role of law in the lives of Americans.

How did you research this topic?

Susan and I interviewed about 450 randomly selected citizens in New Jersey. The interview was structured around their everyday interactions and problems. We didn't use the word law at all. Instead, we were interested in their definitions of a situation as a legal one. We asked about problems they might have experienced in the neighborhood, in the family, at work, in school. If they reported an issue, how did they talk about it? Did they call the police or go to a lawyer, and if not, why not? We were interested in how people talked about the law in the context of these decisions. We wanted to understand the presence and form of law as it appears in everyday life. How does this presence help us explain the law's power and durability?

It's interesting how police and law-related TV affect how people define legality. When we talked to people about the law, they would often say, 'my life has nothing to do with the law.' In part that reflects that the law, as people encounter it on TV, is always connected with horrible crimes. But, in fact, approximately 80% of all legal cases tried in this country are about things like noisy neighbors, overturned trashcans, and disputed parking spaces. The lower courts are about the everyday conflicts and disputes that people have, cases that have to do with our dignity and autonomy.

You and Susan are collaborating on a paper titled "The Architecture of Authority: The Place of Law in the Space of Science." How did you move on to investigate the intersection between law and science?

It's a growth of this interest in law in everyday life. We wanted to look at a more specific context in which we could study an alternative system that might be competing with law. Science as a social institution is probably the law's major competitor right now. Science and law both claim access to a kind of truth, a kind of final authority. So there is a tension between them and we wanted to see how that played out. We decided to look at if and how the law is present when scientists do what they do. That means looking at what goes on in scientific laboratories.

We went into two science labs as fairly naïve social scientists, and said, 'is the law here?' We got the same response from scientists that we got from the people we interviewed in New Jersey: 'there's no law here'. The scientists really envisioned what they did was independent of the law. In many ways they're right. Science does enjoy tremendous autonomy. The law can't outlaw the truths that science discovers.

But despite the scientists' disclaimers, we found that the law is present in laboratories, but in a distinctive way. A way that is able to maintain scientific autonomy and the objective truth that science produces, while still containing the hazards often present in the research process. The form that we found that law principally took, at least within the laboratory, was through the control and design of space. Defining research spaces in a certain way--their shape, size, design, and signing--literarily has the capacity to create subjects. That is, by legislating space, the law creates categories of persons who can and cannot access and use the space.It's not just that we occupy space; in some way space comes to occupy us. In the laboratory, it is through the seemingly benign and mundane stipulations about things like the distance between lab benches, how many people can work in a given amount of space, whether eating is allowed, what people have to wear, the presence and location of safety equipment, etc.

The legal regulation of space takes place from a distance and leaves the substance of science untouched. Generally it's a mode of regulation that is increasingly being used for all subjects, not just scientists. Think about the speed bump. We don't have to have a police office there, or send you to driving school, we just have to change the contour of the road and we can change human behavior. The philosopher Michael Foucault wrote about this minute control of the body, its movements and location in space. One of the primary modes of governance is spatial. I've been reading a lot of cultural geographers, because they've long been interested in that.

Is it be fair to say the way law is used to regulate the lab is based on a concern for safety--protecting people who work in the lab and who live in the surrounding community?

Absolutely. Regulation creates zones where it's difficult to transgress. These scientific institutes are massive buildings with huge lobbies full of artwork. And they're not locked. Anyone can go in. But what strikes you is that the lobbies don't go anywhere, and there's nothing to do. There's a façade of openness, but the spaces beyond the lobby are demarcated with a proliferation of signs saying things like biohazard, danger, must wear eye gear, and so on. The law doesn't need to regulate behavior if it configures space in such a way that a person would willingly defer. The knowledge gained by science is collectively owned, but we still can't penetrate to those spaces where the science takes place.

Can you describe how you went about your research on law and science?

The science work is what sociologists call ethnography, a study of culture. It's an adaptation of classic anthropological ethnography, in which researchers go to some other culture and immerse themselves. I say adaptation because we didn't live in the science labs for years and years. The goal of ethnography is to understand a social world, in this case, laboratories.
You acquire that knowledge through a variety of methods. You observe, you watch scientists do what they do normally. You sit in on meetings and conduct interviews. It involves the inspection of formal documents relating to safety standards, hiring practices, blueprints, and minutes of meetings. Through the variety of these methods you build up an understanding of how this world works, its values, norms, and assumptions. People might not be able to articulate them, but they are demonstrated in behavior, in what they joke about, fight about. All those provide openings to understand.

With the construction of the new science center, it looks like we might have our own opportunity for a case study right on the Clark campus.

Yes. This could provide a very interesting subject for study by students.

 

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Patty Ewick


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