causal versus constitutive explanations (or, on the difficulty of being so positive...)

American Bar Foundation

Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive...)Author(s): Michael McCannSource: Law & Social Inquiry, Vol. 21, No. 2 (Spring, 1996), pp. 457-482Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/828850 .

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Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive .)

Michael McCann

"I am not sure but that methodology is a little like religion. It is something we need everyday, but something we are irresistibly impelled to talk and think about, but regarding which we never seem to reach a definite conclusion. Each one, if he is clever, works out something adequate for his own use, but the more general principles remain unset- tled. Others help us far more by their example than by their theory. It would appear that working methodology is a residue from actual research; . . . [Those] who contributed to it did so unconsciously, by trying to find out something that they ardently wanted to know."

-Thomas Cooley, 19301

Gerald Rosenberg's lucid, insightful, and provocative review2 of my book Rights at Work3 strikes me as quite positive in several different, even divergent senses of the word. The review is positive first of all in that it

Michael McCann is a professor of political science at the University of Washington. He thanks Stuart Scheingold, Beth Harris, Bill Haltom, Lisa Miller, Judy Aks, and John Gilliom for their very helpful comments on drafts of this essay. Howard Erlanger's invitation to publish this response in Law and Social Inquiry also is much appreciated.

1. Quoted in Anthony M. Orum, Joe R. Feagin, & Gideon Sjoberg, "Introduction: The Nature of the Case Study," ("Orum et al., 'Introduction' ") in Joe R. Feagin, Anthony M. Orum, & Gideon Sjoberg, eds., A Case for the Case Study 23 (Chapel Hill: University of North Carolina Press, 1991) ("Feagin et al., A Case").

2. Gerald N. Rosenberg, "Positivism, Interpretivism, and the Study of Law: McCann's Rights at Work," 21 Law & Soc. Inquiry 435 (1996).

3. Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobili- zation (Chicago: University of Chicago Press, 1994).

© 1996 American Bar Foundation. 0897-6546/96/2102-0457$01.00 457



458 LAW AND SOCIAL INQUIRY

extends copious compliments to my efforts and achievements. Rosenberg uses lots of laudatory adjectives in describing various characteristics of the book and identifies several ways in which the book makes important contri- butions to scholarship. Even the specific criticisms in the second half of the review are framed in ways that recognize virtues along with alleged limits or shortcomings in my work. It is always nice to receive reviews that are positive in this sense, and I thank him for such an affirmative appraisal.

The review also strikes a positive note in that its critical assessments are developed in intellectually principled, respectful ways. Rosenberg provides a very detailed, accurate summary of my complex arguments and details the types of data that I offer in terms very close to my own. There are no gross misrepresentations, major oversights, or cheap shots to be found here. He takes the high road not only by laboring to understand my project on its own terms, moreover, but also by framing his reproaches and challenges in terms of alternative approaches that he finds more meritorious. This strategy is commendable in that it opens up possibilities for fruitful dialogue, debate, and perhaps even new types of synthetic analysis by scholars working in quite different traditions.

Most important, however, Rosenberg's review is "positive" in the sense that he constructs his critical evaluation of my work on the specific epistemological and methodological foundations of positivist social science. The substance of Rosenberg's position boils down to a few simple, but related, propositions. His primary argument is that my interpretivist approach "pre- cludes.. .making causal statements," which in turn prevents the formulation and systematic testing of formal hypotheses, thus further undermining my capacity to develop a generalizable predictive theory about the role of law in social struggle. In short, the positivist charge is that my study suffers from the limitations of "particularism" and lack of clarity about its broader implications.

Rosenberg's critical challenge strikes me as fair and familiar, which is why it merits a response. My rejoinder will outline both why I do not embrace the positivist logic of explanation he endorses and my justifications for the alternative interpretive framework of "constitutive analysis" that informs Rights at Work. I organize this discussion generally along the thematic lines of Rosenberg's review so as to facilitate a direct point-by-point ex- change. The response begins by contrasting our perspectives on "causal" explanation; the first section develops our differences at a theoretical level, and the second section illustrates these differences in dealing with specific issues. This is followed by separate but related reflections on matters of theoretical generalization, methodological techniques, and our respective positions regarding how law figures into social change. The discussion addresses a host of specific points in Rosenberg's review and utilizes examples from his



Causal versus Constitutive Explanations 459

own well-known Hollow Hope4 to illustrate our differences. My aim here is less to challenge Rosenberg's own complex methodological commitments than to elaborate the considerable divergence between the two general methodological frames that he highlights in his review essay and that are represented by our respective books.5

I. ON THE QUEST FOR "CAUSES"

The Positivist Model of Causality

Rosenberg judges my work according to the standard of causal explanation that he employs in The Hollow Hope. This positivist model of causation is instrumental, linear, and unidirectional; it seeks evidence regarding how discrete institutional stimuli (independent variables), which in his study turn out to be individual Supreme Court decisions, produce clear changes in the behavior of targeted persons (the dependent variable). As he puts it, "the mechanisms or links of influence must be clearly specified. One needs to be told, for example, that Court decision A influenced President B to win legislation C.... Once the hypothesized links are specified, then, second, the kind of evidence that would substantiate them must be presented ... [and] other possible explanations for the change must be explored and eval- uated."6 Of particular value to most positivist researchers in this regard are procedures that show covariance; that is, demonstrations that dependent variables change consistently with changes in the independent variable. This model is, of course, derived largely from naturalistic scientific models of physical interaction. The causal significance of human law or courts is likened to a bowling ball rolled down an alley; impact is measured by how many pins succumb to the force of the ball; if many fall, the impact is great, but if all or most remain standing, the toss was causally insignificant and the bowling agent ineffective.7

Post-Positive Reservations

Rosenberg is quite correct that Rights at Work does not provide explanations framed in the specific terms of such a narrowly construed causal

4. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chi- cago: University of Chicago Press, 1991) ("Rosenberg, Hollow Hope").

5. Rosenberg acknowledges some significant achievements of interpretive sociolegal scholarship generally and of my work specifically. His positivist critique of my interpretive approach thus is, as I have noted, "open-minded" and qualified.

6. Rosenberg, Hollow Hope 108-9. 7. Impact generally is assessed according to a dichotomous, either/or scale of outcomes.

The model's predictive value typically is framed in probabilistic terms. See subsequent sec- tions on methods and on social change for discussion of these points.




logic. I instead work within a very different interpretive tradition that is skeptical about the value of this causal frame for making sense of human interaction. This tradition emphasizes at the outset that causal explanations are partial, imperfect, problematic intellectual contrivances to help us to make sense of ourselves and the world in which we live but cannot fully "know." An outline of three related reservations about linear causal models will help me begin to spell out my alternative logic.8

The first, and most classic, argument long advanced against positivist causal models is that they obscure or slight many uniquely human aspects of social interaction. After all, people are not simply inanimate objects that respond mechanically and predictably to physical stimuli, like pins reacting to collisions with a bowling ball. Because humans are knowledgeable, thinking human agents, their actions are inherently unpredictable and indeterminate. From an interpretivist viewpoint, any adequate explanation of political action thus must examine the diverse deliberations, motives, choices, and intentions-concepts often linked to reflexive "agency"-as well as the observed behavior of subjects.9 In part, this is because delibera- tion and choices greatly influence behavior, and in part because a subject's intentions are part of what we call action itself. As Pitkin puts it, this does not mean that "action can be identified only according to intention, therefore by the actor himself; but that with respect to human action, intention and therefore the actor's views are always potentially relevant and must be taken into account."10 The problem is that linear, instrumental conceptions of causality are inadequate tools for explaining the dynamic, indeterminate, contingent, interactive processes of judgment, choice, and reasoned inten- tionality of people in action. Reasons, motives, and the like surely influence action but not in ways that are easily isolated as discrete, measurable, determinate variables. The result is that (linear) causal analysis tends to be either

8. Since brevity is an imperative, let me note that my orientation builds on or parallels much critical scholarship at a variety of analytical levels. I mention only a few examples here. On philosophy of social science generally, see Paul Rabinow & William M. Sullivan, eds., Interpretive Social Science: A Second Look (Berkeley: University of California Press, 1979) ("Rabinow & Sullivan, Interpretive Social Science"); James Bohman, New Philosophy of Social Science (Cambridge: MIT Press, 1994) ("Bohman, New Philosophy"); Anthony Giddens, The Constitution of Society (Berkeley: University of California Press, 1984) ("Giddens, Constitution of Society"); Hanna F. Pitkin, Wittgenstein and Justice (Berkeley: University of California Press, 1972) ("Pitkin, Wittgenstein"). A variety of works on qualitative case study methods also are relevant: Feagin et al., A Case (cited in note 1); Charles C. Ragin & Howard S. Becker, eds., What Is a Case? Exploring the Foundations of Social Inquiry (Cambridge: Cambridge University Press, 1992) ("Ragin & Becker, What Is a Case?"); Robert E. Stake, The Art of Case Study Research (Thousand Oaks, Cal.: Sage Publications, 1995). See also the many works of interpretive sociolegal analysis cited in the following pages and in my Rights at Work.

9. See Rogers M. Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 Am. Pol. Sci Rev. 89 (1988); and id., "If Politics Matters: Implica- tions for a 'New Institutionalism,'" 6 Stud. Am. Pol. Devel. 1 (1992). See also Bohman, New Philosophy, and Pitkin, Wittgenstein.

10. Pitkin, Wittgenstein 256.




reductionist or evasive about the "causes" (reasons, goals, motives) that figure into political action.1

Positivist models of causality not only oversimplify relations among thinking humans, as many interpretivists see it, but they thus also tend to overdetermine actions in ways that discount human agency. Behavioral models that exclude investigation of intentions and stipulate simple causal determinants often attribute (directly or indirectly) a lack of reason, reason- ableness, or sophistication to subjects. This points to a notable difference between Rosenberg's positivist account and my post-positive analysis of legal reform action. The Hollow Hope, which offers little direct empirical evidence regarding how legal reform advocates actually thought about their tactical efforts, argues that judicial decisions had little influence in historical processes of social change while cultural myths of law have routinely beguiled reform activists into a naive faith in legal tactics.12 To use Rosen- berg's own metaphor, activists who embraced legal tactics are like flies un- wittingly, irrationally attracted to and trapped by flypaper. My analysis in Rights at Work, by contrast, relies on in-depth interviews and movement texts to demonstrate the opposite. I offer ample evidence that activists were greatly influenced by changing judicial rulings but that also those citizens reasoned in quite variable, complex, sophisticated ways-more so than many of us social scientists, I dare say-both about their specific actions and generally about how law matters in social life. Readers can judge for themselves which type of account regarding human action is most convinc- ing and comports with their own experiences.

A second major point of difference concerns how we view the social contexts in which human agents act. Rosenberg is quite correct in noting that each of our approaches emphasizes a variety of contextual factors that influence both the choices and implications of actions by political subjects. We both offer models that specify discrete categories of situational factors affecting how law and courts matter in our particular case studies. The difference is in how we view the dynamics of those factors. Positivist approaches to behavior emphasize the conceptual extraction and isolation of contextual factors into discrete, insular, commensurable variables that can be measured for relative independent causal significance. Most interpretive

11. Rosenberg, like many behavioralists, does address issues of how citizen attitudes, val- ues, and goals are affected by his independent variable of court decisions. The issue is not that cognition receives no attention but that the specification of citizen cognition is highly mechanical and reactive. In his view, responses either are positively influenced or are not, more or less, like the ball hitting or missing the pin. This does not, by definition, account for the many diverse ways that court actions can figure significantly-can matter and have influence-in human reasoning and action.

12. Rosenberg refers to and parallels Stuart Scheingold's classic argument about the "myth of rights" but does not balance this view with Scheingold's argument about the more sophisticated "politics of rights" that figures into much struggle. The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven, Conn.: Yale University Press, 1974).




scholars find this mechanical contrivance inherently unsatisfying. After all, much of what we often label "context" is defined by the indeterminate understandings, expectations, and actions of other thinking beings in social relationships; social context is largely about complex human interaction. This is why Rights at Work treats contexts as complex webs of multiple dy- namically interactive, contingent "social" relations that both constrain and facilitate the reflexive actions of research subjects. I begin from the assumption that no contextual factor alone is determinative or autonomous, and, indeed, the conceptualization of factors as independent forces only impedes understanding of both their dynamic interactions and their cumulative significance over time for the subjects we are trying to understand.13 Human relations are viewed as ongoing, dialectical processes rather than as aggrega- tions of isolated causal collisions.14

It is relevant in this regard that one of the reservations most commonly voiced by reviewers of The Hollow Hope concerns the fragmented, skewed analysis that results from analyzing institutional interrelationships as a series of independent, unidirectionally determined events.15 For example, Rosen- berg labors to ascertain whether it is the lonely efforts of the Supreme Court or Congress that "really" dismantled segregation in the South. Interpre- tivists, by contrast, are far more inclined to explore the complex ways in which these two institutions (along with civil rights activists and many other historical actors and factors) influenced each other and how these dialectical interactions over time figured prominently into processes of social change.'6 Moreover, interpretivists generally find that linear causal models reduce environmental factors to discrete, mechanical terms that are

13. This obviously does not mean that we cannot identify different types and degrees of influence for various social phenomena. The point is that contextual influences tend to be incommensurable in the nature of their influence and hence difficult to measure by any common scale.

14. My characterization of Rosenberg's contribution here is a bit misleading. Rosenberg does recognize indirect effects (when one pin knocks another over) as well as direct effects. And one of the most useful achievements in The Hollow Hope is the specification of an elaborate model of conditions and constraints that influence relative impacts of judicial decisions. However, this model still is grounded in treatment of judicial influence as independent, commensurable, unidirectional causal forces rather than as a process of complex, dialectical interaction among incommensurable factors over time.

15. See the following reviews: McCann, "Reform Litigation on Trial," 17 Law & Soc. Inquiry 71 (1992); Malcolm M. Feeley, "Hollow Hopes, Flypaper, and Metaphors," 17 Law & Soc. Inquiry 745 (1992); Jonathan Simon, "'The Long Walk Home' to Politics," 26 Law & Soc'y Rev. 923 (1992); Susan Lawrence, Book Review, 86 Am. Pol. Sci. Rev. 812 (1992) See also Roberto Unger, Law and Modem Society 10 (New York: Free Press, 1976): "Causal explanation requires the imputation of particular effects to particular causes. But the more complete and therefore accurate the account, the more do all past events seem reasonable for any given occurrence in the present. The chain of causality extends uninterruptedly in every di- rection of space and time. Thus, there is a conflict between the needs for discreteness and completeness in causal understanding."

16. This emphasis on social interaction often highlights as well the "unintended" consequences of individual and group actions in human relations. See Elizabeth Mertz, "A New Social Constructionism for Sociolegal Studies," 28 Law & Soc'y Rev. 1243 (1994).




far removed from how the experiences of social actors themselves. In this regard, I follow a common interpretivist preference for examining research subjects "up close and personal" within densely mapped, holistic narratives ("thick" descriptions) or analytical accounts of their familiar social settings and interrelationships. Readers again can compare our respective book accounts and some examples in coming pages to decide for themselves how contexts of social interaction are most fruitfully explained.

The third and most important reason for my choice to avoid linear causal explanation derives from the social constructionist understanding of the relationship between subjectivity and context that informs most interpretivist accounts. In this view, institutional contexts of action are not wholly exogenous to research subjects, as is typically imagined in most positivist models. Rather, institutional forces are manifest in, and to a great degree "work" through, the culturally defined intersubjective knowledges, conventions, and norms that people carry around in their heads and act on in everyday practice. Citizens thus do not simply respond to the human and material world around them as it "objectively" exists, but instead act on the basis of selective understandings, expectations, aspirations, and calculations that develop through formal learning and practical experience in specific cultural contexts. People reason as they act, but they do so as creatures whose reflexive capacity is facilitated by the constructed conventions and discursive formations that inhere in institutionalized social life. As such, social conventions and knowledges (such as legal norms) are understood as "constitutive"-rather than independent, exogenous, discrete determinants-of citizen meaning making activity.'7 This term expresses a sensitiv- ity to the ways that our actions are at once delimited and enabled by a complex mix of partial, dialectically interactive knowledge-based (or discursive) factors.18 My effort, following others, to explore citizen consciousness as well as the intersubjective discursive and ideological formations from which individual consciousness develops over time conveys this interpretivist attention to what we often label the "social construction of reality."19 And this focus on meaning construction further highlights the inherently

17. See Charles Taylor, "Interpretation and the Sciences of Man," in Rabinow & Sulli- van, Interpretive Social Science (cited in note 8). Developments of this approach in legal studies are vast in number. See, in particular, Christine B. Harrington & Barbara Yngvesson, "Inter- pretive Sociolegal Research," 15 Law &6 Soc. Inquiry 135 (1990); Patricia Ewick & Susan S. Silbey, "Conformity, Contestation, and Resistance: An Account of Legal Consciousness," 26 New England L. Rev. 731 (1992); Austin Sarat & Thomas R. Keams, "Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life," in A. Sarat & T. R. Keams, eds., Law in Everyday Life 21-61 (Ann Arbor: University of Michigan, 1993) ("Sarat & Keams, 'Beyond the Great Divide' "); Mertz, 28 Law &' Soc'y Rev.

18. Anthony Giddens conceptualizes how context is at once exogenous and internalized in terms of the "duality of structure" in his provocative, brilliant Constitution of Society (cited in note 8).

19. The term, of course, owes to the classic tome by Peter L. Berger & Thomas Luckman, The Social Construction of Reality (New York: Anchor, 1966).




indeterminate, variable, contingent aspects of human interaction about which positivist causal models offer quite limited analytical insight.

The Post-Positive Alternative: "Constitutive" Analysis

The argument above should not be read as contending that linear causal explanations are "wrong' per se or useless. As Thomas Kuhn has aptly argued, all explanatory paradigms are problematic, partial, and vulnerable to challenge.20 And it seems only fair to recognize that some interpretive scholars-some associated with the "new institutionalism," for example- whose work I admire frame their inquiries in terms quite deferential to reigning scientific models of causal explanation.2' At the same time, my previous comments should not be read to indicate that my research, like that of most interpretivists, aims to offer no insights regarding how social factors variably influence or "matter" in social action. Rosenberg is correct in his suggestion that we cannot interpret and explain human interaction without making some types of what might be construed, very broadly, as causal or consequentialist attributions. But the position of most post-positivist scholars is that strict linear causal models do not enable us to "see" and understand what we find most interesting and important about human relations, and especially about the politics of legal practice. Rosenberg's review challenges without providing a full account of the more subtle alternative logic of analysis that informs Rights at Work.

For one thing, I do not profess to reject consequentialist analysis per se; my claim early in the book is only that I take a "skeptical position regarding" some specific types of consequentialist or causal explanation, that is, regarding "traditional scientific goals of defining clear causal relations and developing strong predictive capacities."22 My study does make attributions of influence, of a highly qualified and limited causality; I do, for example, make arguments about the consequences of law for social struggle and about how specific social factors interact with law and influence law's meanings and power.23 But those claims are very different in logic and import than what positivist models attempt. In short, my analysis aims for a more complex relational or "constitutive" understanding about what Smith calls "meaningful acts" within socially structured contexts.24

20. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chi- cago Press, 1970). Rosenberg himself fully recognizes this point.

21. See Smith, 6 Stud. Am. Pol. Devel. (cited in note 9). 22. Rights at Work 15 (cited in note 3). 23. On comparing different types of causal influence, and especially the differences be-

tween simple linear deterministic accounts and more dynamic, sequential, multivariable accounts, see Howard S. Becker, "Cases, Causes, Conjunctures, Story, Imagery," in Ragin & Becker, What is a Case? 205-16 (cited in note 8) ("Becker, 'Cases, Causes' ").

24. Smith, 82 Am. Pol. Sci Rev. (cited in note 9). See also Sarat & Keams, "Beyond the Great Divide" (cited in note 17).




My perspective toward identifying how various elements of social life interact follows from the widely shared social constructionist premises about the relationship of subjectivity and context outlined above. This approach aims for and utilizes a rhetorical frame expressing a more dialectical, contingent, pluralistic, multidimensional understanding about human interaction. Its goal is a more holistic understanding of how differently situated citizens understand and negotiate varying, volatile, and difficult institutional relationships. It aims to capture the very uniqueness, indeterminacy, and unpre- dictability as well as the more discernible abstract patterns of creative political action. My specific project in Rights at Work addresses at once how legal conventions shape the terms of meaning construction, how specific situational contexts of struggle delimit or facilitate particular strategic legal actions, and how both of these "matter" for different citizens' experiences and social positions. Context is understood as intersubjective as well as exogenous, and multiple, inherently incommensurable contextual factors are mutually constitutive of action as an ongoing process across time and space. Chopping up this process into discrete temporal moments of linear causal relation among isolated forces strikes post-positive interpretivists like me as more of a detour than a reliable path toward understanding the experiences of others and analyzing the dynamics of social interaction at a more abstract level.

Rosenberg's claim that I am inconsistent, that I formally reject causal analysis but still offer causal claims, thus is misleading. At numerous points the text emphasizes that my arguments about the constitutive character of law and social practice should not be misconstrued as simple (linear, deterministic) causal claims. Moreover, the diagram of my legal mobilization model pictures arrows going both ways; the accompanying discussion clearly specifies the reasons for that nonpositivist emphasis on interactive, ongoing relationships.25 Finally, my attributions of influence to broad cultural norms, specific institutional or discursive formations, the actions of others, and the like are expressed in a language that is appropriate to my complex "constitutive" framework. I always use verbs such as "shaped," "influenced," "catalyzed," "narrowed," "encouraged," "delimited," "contributed to," "rendered sensible," "facilitated," and the like to connote these diverse understandings.26 Indeed, nowhere in the five excerpts that Rosenberg quotes as examples of my causal explanations do I use a variant on the root word "cause" or make the type of strong causal claim that he favors. My very title Rights at Work expresses this interest in the complexity of how legal conven-

25. McCann, Rights at Work 136-37. 26. It is interesting to me that Rosenberg uses these same types of verbs (note the use of

"influence" above interchangeably with "cause") as synonyms for cause. In my view, these usage patterns are misleading and facilitate subtle departures from declared explanatory commitments.




tions "work" and matter-rather than simply determine effects-in social practice.

All this is not to say that my more complex approach to the social constitution of action does not have its costs and limitations relative to most positivist models. Indeed, the limits or tradeoffs of my chosen approach are recognized in Rights at Work. I note in my Introduction that positivist models enable more precise, parsimonious, elegant, and bold modes of analyses.27 Interpretive approaches admittedly fall short by all of these standards. Rosenberg surely can, as a result, cover many more case histories and much broader terrains of struggle than I can in the same number of pages. And all of my pages on a single historical struggle do not offer the confident conclusions and generalizations that his sweeping analysis of multiple reform legacies offers regarding law's (limited) role in "causing" social change generally. My approach instead aims only to increase our understanding about the complex, contingent, indeterminate ways that law matters in social life. It makes a big deal about how people struggle in diverse ways to makes sense of things, to formulate strategies of action, and to construct tactics from common conventions in highly constrained, often confusing situations; it identifies how citizen experience, identity, and position develop and change in contexts of struggle; it revels in paradox, irony, variation, and surprise as well as the identification of more abstractly defined general patterns.28 As such, my interpretive approach aims for an un-

derstanding much closer to, or at least more sensitive to, that of the research

subjects themselves. From my view, parsimony, simplicity, and boldness per se are not virtues in the pursuit of such goals. Given the tradeoffs at stake, I find no reason for regrets or excuses for my interpretive designs.

II. COMPARING EXPLANATIONS: SOME EXAMPLES

The basic elements of the different approaches that Rosenberg and I

champion are easier to identify than to appreciate at an abstract level, especially in the short space allowed here. It thus is worthwhile revisiting a few

examples of my explanatory accounts cited by Rosenberg as insufficient. My goal here is, again, not so much to defend my efforts as to explore further

27. My interpretive approach does not easily facilitate research replication and verifica- tion as well. This raises important issues regarding how we understand the relation between analyst and subject matter-a subject on which positivists and interpretivists tend to differ greatly. I sidestep the issue here because Rosenberg does not raise it in his review.

28. Three scholars argue for interpretive case studies on just these grounds. "The qualitative research exemplified in the case study usually brings us closer to real human beings and everyday life. Rather than assuming a world of simplicity and uniformity, those who adopt a qualitative approach generally picture a world of complexity and plurality. It is the richness and subtle nuances of the social world that matter and the qualitative researcher wishes to uncover." Orum et al., "Introduction" at 23 (cited in note 1).




and to illustrate just how our different conceptual approaches generate different types of understandings.

Identifying the Legal

I begin with the general issue of how our two frameworks identify and analyze differently the primary subject of law. Rosenberg's paradigm com- bines positivism and legal realism in a very conventional hybrid social scientific framework. In this research model, law is parsimoniously specified as clear, unidirectional, one-dimensional commands issued by discrete court decisions. Law's power thus is conceived as an autonomous exogenous force (the independent variable) imposed from above, and it is the positivist analyst's mission to "measure" its discrete causal impacts on targeted persons in society. Rosenberg further specifies a series of discrete variables that act as constraints and conditions that affect (decrease or increase) law's potential direct and indirect impacts.

The post-Realist, post-positivist approach offered in Rights at Work views law more complexly. It begins by recognizing three different but interrelated elements of what we refer to as "law"-legal norms, official legal institutions, and legal actors. Legal norms and conventions are conceived as forms of cultural knowledge manifest within identifiable traditions of discursive practice throughout social life, rather than as discrete rules imposed on society. Understood this way, legal norms and knowledges are constitutive of social life; they at once constrain and facilitate, delimit and enable, social action. Legal language importantly shapes how citizens understand, explain, and negotiate-how they "name, blame, and claim" in-practical social interaction. As Ewick and Silbey argue, "the ways in which law is experienced and understood by ordinary citizens as they choose to invoke the law, to avoid it, or to resist it, is an essential part of the life of law."29 Moreover, the very meanings and power of legally constituted practices are contingent on their interaction with various extralegal discourses, institutional norms, and social relations.30 In this conceptual framework, official legal institutions such as courts are 'decentered.' Judicial institutions define but one highly influential site or type of actor where law's meanings are constructed, contested, and reconstructed. Judicial authority may be able to command compliance only from parties in specific conflicts, moreover, but its influence on citizen understandings, practices, and contests throughout society never- theless can be highly significant, if complex and indeterminate. In particular, by authorizing particular meanings and "endowing" social actors with

29. Ewick & Silbey, 26 New Eng. L. Rev. at 737 (cited in note 17). 30. See Alan Hunt, "Law as a Constitutive Mode of Regulation," in id., ed., Explorations

in Law and Society: Toward a Constitutive Theory of Law 301-33 (New York: Routledge, 1993) ("Hunt, Explorations").




potential enforcement capacities, "courts not only resolve disputes, they prevent them, mobilize them, displace them, transform them."31

These basic understandings-derived from a synthesis of scholarly research into disputing processes, legal mobilization, and legal culture theories-inform my inquiry into how law and legal mobilization activity matter. The legal mobilization approach enables me to canvass a wide variety of meanings, understandings, tactical choices, and practices that loom large in the lives of my research subjects. Indeed, these subjects' very testi- monies about the significance and variety of law's influences stand in bold contrast to the positivist approach. Once loosened from the isolating either/ or, command/compliance logic, a universe of legal significance in social life thus is opened up to interpretive scholars. Interpretivist approaches generally have demonstrated that "law is all over," although its implications are highly variable for differently situated persons and types of relations.32

Positivist efforts to conceptualize law as discrete, determinate independent variables simply cannot, in my view, do justice to these understandings. In Rights at Work I note the limits of positivist causal models that reduce law's diverse manifestations to discrete one-dimensional judicial decisions, law's constitutive power to issues of judicial compliance, and the dynamics of litigation processes to matters of judicial enforcement power. The linear causal model of behavioral impacts thus overlooks a wide range of consequential legal mobilization activities-including voicing legal rights claims, identifying legal wrongs, threatening to or actually filing legal charges, framing remedial plans-that involve courts but stop well short of complete trial proceedings. Likewise, the many ways that court decisions can be meaningful for citizen struggles beyond enforcing compliant behavior-for example, privileging certain actors, groups, or strategies relative to others within and beyond movements; shaping calculations of possible tactical options; nurturing or dispelling hopes that change is possible-are discounted as well. Finally, my general findings about how legal advocates can actually gain benefits from hostile court decisions (by dramatizing injustices, generating reform action in other institutional contexts, etc.) remain invisi- ble on most positivist viewing screens. All in all, while post-positive, post- Realist cultural conceptions of law are surely complex, diffuse, and impre- cise, they do facilitate understandings about many aspects of legal practice that do not fit easily into strict positivist logics of unidirectional causation.33

31. Marc Galanter, "The Radiating Effects of Law," in Keith D. Boyum & Lynn Mather, Empirical Theories of Courts 123 (New York: Longman, 1983) ("Galanter, 'Radiating Effects' ").

32. The phrase comes from Austin Sarat, "'... The Law Is All Over': Power, Resistance, and the Legal Consciousness of the Welfare Poor," 2 Yale J. L. & Human. 343 (1990).

33. This is not to say that positivists cannot model law in more complex ways, although I am skeptical about how far such efforts might prove satisfactory to social constructionists.




Unions Versus the Law

Rosenberg's strongest critical charge, in my view, is that post-positive interpretivist approaches cannot clearly distinguish and precisely assess the relative causal influence of discrete variables. For example, he argues that my study "offers no way of separating the effect of law from . . . union drive[s]" and, thus, of systematically assessing their relative independent influences. This is significant because Rosenberg finds reasons in my account to think that unions were rather more important to pay equity politics than were legal norms and court decisions. He correctly invokes my own evidence that unions used pay equity campaigns to organize much needed members; that campaign effectiveness varied with union organization and "solidarity"; and that members were activated only where they were already "well situated" for action. These are fair arguments, but several responses are in order.

To start with, the generalization about union influence can be rebutted on its own terms by a closer look at my evidence. Simply put, while unions were undeniably important to the overall pay equity movement, the role of unions across specific cases was as variable as that of legal tactics. Indeed, union locals were relatively unsupportive or even a formidable obstacle to reform action in some cases. In several Long Island school districts, for example, women workers circumvented and challenged their unions and found alliance instead with an independent feminist organization. Preexist- ing networks existed to some degree, but they were weak and formed outside of unions; the relatively small scale of the local conflict made extensive organization less important and legal threats more important than in other contexts. Again, my interpretive study revels in noting variations and indeterminate features as well as the broader, more abstract patterns in political relationships such as these. And in terms of broad correlations among factors, the pay equity movement growth and decline follows (covaries, in positivist terms) the patterns of appellate court decisions much more closely than union presence per se, which varies little over this time period.

More fundamentally, Rosenberg's either/or approach to separating and assessing discrete independent variables seriously obscures the complexities and interrelationships that my account attempts to demonstrate. After all, unions themselves are to a large extent legal constructs, and legal battles have been crucial to union development and vitality in our nation's history. Indeed, a host of exciting and interesting books in recent years has convinc- ingly argued that our legal system is largely responsible for the "exceptional"

For one interesting study that takes a subtle, complex view of impacts, see Charles A. Johnson & Bradley C. Canon, Judicial Policies: Implementation and Impact (Washington: Congressional Quarterly, 1984).




status of U.S. unions among Western nations.34 To insist on treating unions and law as autonomous, unrelated institutional entities only obscures their fundamental interrelationship.35 This point is especially relevant to the pay equity legacy. After all, union membership was declining in the 1960s and 1970s, but few unions courted women workers until late in the 1970s when lawyers both started suing the unions for nonrepresentation and demonstrated positively that legal rights strategies challenging workplace discrimi- nation could benefit unions and women alike. When those legal strategies were undercut by conservative federal judges in the late 1980s, union efforts to mobilize working women around pay equity quickly subsided. The fact that union organizers and other movement leaders were nearly unanimous in citing legal strategies as crucial factors in making pay equity an "actiona- ble" issue to organize around for a particular historical moment supports this interpretation. In short, my account shows in detail that legal mobilization tactics contributed to as much as built on union organization. The two processes were dialectically related in a variety of important ways; the very practices of unions and law were intrinsically interconnected in the politics of pay equity during this historical period. To treat each as autonomous, commensurable forces whose independent determinative influence can be statistically compared strikes me as futile and only impedes understanding their critical interaction in an ongoing, dynamic process of struggle.

Finally, my recognition that law's influence is indeterminate should not be read as evidence of its insignificance. Rights at Work does not argue or imply that legal factors are the most determinative element in pay equity politics. Many factors of different kinds contributed to the variable patterns of action at various "stages" of struggle in my pay equity case studies, none of which was ultimately determinative. The aim of interpretive analysis is to understand more fully and complexly the interplay of these multiple factors over time. Moreover, my general argument about the relevant factors that shape the prospects for legal mobilization draws on social movement litera- ture regarding collective action generally. The assumption that the "force" of legal conventions and tactics is just as contingent as is that of other institutional resources and cultural conventions hardly should imply that the former are "insignificant."36

34. Victoria C. Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, N.J.: Princeton University Press, 1993); Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991); William E. Forbath, Law and the Shaping of the American Labor Move- ment (Cambridge: Harvard University Press, 1991); Christopher L. Tomlins, The State and the Unions (New York: Cambridge University Press, 1985).

35. Jonathan Simon, 26 Law &' Soc'y Rev. (cited in note 15), makes a similar argument about Rosenberg's treatment of "law" and "markets" as independent categories, which my study also portray in more constitutive, dialectical terms.

36. For a very interesting parallel discussion about law's "underdeterminacy" in processes of social change, see Mertz, 28 Law &6 Soc'y Rev. (cited in note 16).




Other Examples

Similar arguments can be made about other specific points made by Rosenberg. For example, his desire to separate "political participation" and "law" into autonomous, measurable causal phenomena obscures that legal norms and processes shaped both the character of movement participation and the particular meanings that my research subjects developed through that experience. From a post-positive perspective, pitting them as separate causal forces which can be measured for relative influence obscures the distinctive character of legally constituted action in political struggle. In fact, one of my central arguments is that familiar scholarly charges alleging that legal strategies inherently discourage, preempt, or undermine grassroots political participation are simplistic and overdrawn.

The same type of point can be made regarding Rosenberg's critique of my case study selection. His argument about the need to examine workplace settings where there was no pay equity activity wrongly assumes that I aim to explain the "causes" of pay equity action.37 On the one hand, I do cite a variety of different interrelated factors (some related to law; see chap. 4) that help to make sense of why pay equity activism did not develop in many settings, especially in the South. This explanation draws on social movement studies as well as other pay equity studies, and is offered as part of my contextualization of my case studies. These discussions provide a number of speculative hypotheses about relationships that other scholars interested in social movement development are welcome to investigate. But framing even such projects in terms of which factors "cause" pay equity activism does not seem to me, and to most social movement scholars, the most useful intellectual approach.

On the other hand, studying workplaces that experienced no reform action would have added little to my study of law in practice. My central research questions concerned how, why, and to what effect pay equity activists mobilized law. The original research design specified 6 cases of pay equity activism based on the accounts from multiple secondary sources; 4 cases entailed different types and degrees of legal mobilization, while 2 cases seemed to involve little or no strategic legal action. However, my subsequent examination at the actual sites revealed that "law was all over" in all of the cases; examination of 18 additional cases found none where legal mobilization of some sort was not important to the struggle. These case studies thus provided an opportunity for identifying variable patterns of law in practice, developing a theoretical framework informing that analysis, and challenging some bold causal generalizations routinely voiced by other

37. Rosenberg writes: "All he can talk about is the role of law and courts in certain sites where pay equity struggles occurred. And in so doing, he doesn't know what is causing the struggles to occur."




scholars. As such, my cases yielded far more insights than I had ever imagined when I began the project.

One final point is worth noting. I want to emphasize again my position that linear causal arguments can be very useful for some types of explanation. For example, Rosenberg utilizes his causal model very effectively in The Hollow Hope to refute a rival causal hypothesis that court decisions alone can generate significant social change. As a debunking enterprise, his approach is very powerful. He did many of us scholars a service by confirm- ing in rigorous terms what we previously accepted as true but never took the time to demonstrate. Yet many critics have raised questions about whether this type of causal framework of isolated causes and effects helps further in explaining the many more subtle, variable ways that legal norms, institutions, actors and the like do matter in social life. Rosenberg's elegant model of conditions and constraints that influence the potential impact of judicial decisions is undeniably an important contribution to this goal. But many scholars might find this contextual model more compelling if joined to a more pluralistic, interactive, constitutive understanding of law in social practice. It is interesting in this regard that Rosenberg's own explanation regarding how major political struggles (civil rights and women's movements) "actually" did evolve, relatively independent of law's influence, leaves his strict causal model behind. His accounts of the "tides" and "cur- rents" of movement history, while very brief and general, provide complex explanations recognizing an ongoing "social process" involving multiple interactive factors which tended to redefine both the perceptions and positions of various key actors over time. Interpretive sociolegal scholars like me are interested applying these latter type of perspectives to the study of legal practices as well.38

III. ON THEORETICAL GENERALIZATION

Rosenberg argues further that the interpretivist approach offered in Rights at Work contributes little to the development of generalizable theory. By "generalizable theory," I take it that he refers to nomothetic principles or "covering laws" of causal relationship that can be formulated for the purpose of predicting future events as well as explaining past and present events. Much of my lengthy exposition already has addressed why I do not find this a compelling goal for my own research. Several brief additional points follow.

In the first place, it should come as no surprise by now that I welcome charges of "particularism" in my work. The very promise of interpretive

38. See, e.g., Stuart Scheingold, "Constitutional Rights and Social Change: Civil Rights in Perspective," in Michael W. McCann & Gerald L. Houseman, eds., Judging the Constitution 73-91 (Glenview, Ill: Scott Foresman/Little Brown, 1989); Simon, 26 Law & Soc'y Rev.




work is its "up close and personal" focus on the struggles of citizens in their everyday institutional contexts. If particularism implies careful attention to the details of events, to the variable cultural discourses and institutional factors that figure into complex situations, to the lived experiences and reasoned deliberations of social subjects-then I happily plead guilty as charged. And it is precisely the recognition of these variable, complex, indeterminate dimensions of social life that makes interpretivists like me skeptical about, or uninterested in, the search for uniform covering laws governing predictable human behavior.39 In fact, I agree somewhat with one criticism by Rosenberg and other reviewers regarding Rights at Work: the sheer number of cases that I studied impeded my ability to offer even more detailed narrative accounts of individual struggles, as I had planned to do in my original research design.40

At the same time, such a commitment to detailed case studies need not hinder theoretical generalization. Indeed, whatever its deficiencies, Rights at Work provides a complex, synthetic conceptual framework that both structures interpretation of its specific case material and is adaptable for analysis of legal practices in other types of contexts as well.41 Like much interpretive research, it thus contributes to theory at several different levels. The first contribution is to abstract, meta-level theorizing, what often is labeled the conceptualization of domain assumptions.42 This includes attention to broad epistemological concerns about how we understand the nature of human rationality, agency, and social structure; how we design the scope and goals of research; how the analyst situates herself relative to her subject matter; and other issues addressed in the present essay. If anything, much post-positive analysis often focuses to a fault on this level of theoretical generalization.

Second, interpretive analysis can, and should, contribute to sophisticated conceptualization of the logical forms that structure analysis-to the specification of relevant categories or typologies of variables, relational patterns, and the like in social practice. It is worth noting here that I part ways with some interpretivists who believe that rich narrative accounts and

39. Here I am not far from the position of Giddens: "In social science ... there is not a single candidate which could be offered uncontentiously as an instance of such a [universal causal] law in the realm of human social conduct.... The idea that with further research such laws will eventually be uncovered is at best markedly implausible." Giddens, Constitution of Society 344-45 (cited in note 8). See also Bohman, New Philosophy (cited in note 8).

40. On how my case studies expanded, see the discussion at the end of the previous section. The increased number of cases enabled me both to demonstrate general patterns more confidently and to explore more types of variation in relationships, but they rendered the narrative form impractical.

41. It is relevant that a number of studies by other scholars utilizing, and hopefully im- proving on, my general framework are in progress as I write.

42. Gideon Sjoberg et al., "The Case Study Approach in Social Research: Basic Meth- odological Issues," in Feagin et al., A Case at 29-36 (cited in note 1).




"thick description" of social action alone are adequate.43 Such accounts are often very useful, to be sure, and I support their development in (small N) case study research. However, rigorous theorizing is also necessary both to specify clearly the basic organizing categories that structure specific interpretive enterprises and, more broadly, to facilitate direct comparative assess- ment about how human experiences in different contexts seem to vary. Interpretive efforts to "map" different social terrains should take seriously the ongoing intellectual project of constructing generalizable mapping conventions as well as address in rigorous terms the details and implications of specific social relations in the cases at hand. In this regard, Rights at Work builds on and contributes to an evolving theoretical enterprise shared among many interpretive sociolegal scholars.44 My analysis contributes, for example, in novel ways to broadly applicable analytical formulations about the nature of "legal mobilization" and "legal consciousness"; to typologies of contextual factors categorized in terms of "opportunity structures" and "organizational resources"; and to a four-stage process-based temporal model of conflict development. Rosenberg graciously concedes that my work goes further than much interpretive work in this regard, but his preoccupation with causal generalization limits his recognition about the wide variety of valid theoretical enterprises in which interpretive social scientists participate.

Third, Rights at Work offers a coherent, consistent logic of generalizable explanations and assessments about the relationship among specified factors in my cases and in contexts beyond. Many of my general claims offer caution- ary judgments about the limits of positive, predictive generalizations, to be sure. But some types of affirmative claims also are offered about tendencies and patterns in the interactive relationships among varied social factors. For example, I draw on social movement research to hypothesize that legal mobilization is more easily achieved by groups already bound by associational ties than among "isolated" or unconnected citizens. Moreover, I suggest that court decisions (especially when they form a consistent pattern) often work to encourage some types of legal claims while discouraging others. My study also recognizes various contextual factors that influence the potential lever- aging power of legal threats (bluffs) and formal actions in group conflict. And so on.

43. For a powerful argument that narrative accounts are less politically subversive and intellectually compelling than often is claimed, see Patricia Ewick & Susan S. Silbey, "Sub- versive Stories and Hegemonic Tales: Toward a Sociology of Narrative," 29 Law & Soc'y Rev. 197 (1995).

44. My debts to other scholars are too extensive to recount here, but Rights at Work provides a fairly good accounting. Among law and society scholars, however, I must express a special debt to the individuals in the former "Amherst seminar" whose work has greatly stimu- lated and influenced me. For a review of recent developments in interpretive sociolegal research, see the "Symposium: Community and Identity in Sociolegal Studies," 28 Law & Soc'y Rev. 971 (1994).




But my general claims of this sort differ from-a positivist might say they fall short of-bold universal causal generalizations. It is one thing to specify various types of factors that are likely to matter in a situation and another to treat their interrelationship as determinate, static, predictable. Following the previous discussion, my claims are tempered by the recognition that social action is inherently indeterminate and shaped by a conflu- ence of factors that makes prediction highly imperfect. My generalized prospective claims thus tend toward only rough ("mini-max") types of "pos- sibilistic," rather than probabilistic, explanation. Legal mobilization analyses advance claims such as "The more of these enumerated types of factors a, b, c ... are present, the more that actions in the range of x, y, or z are likely to make sense or be appealing to the actors in question; and vice versa."45 Such modest general propositions about how social context en- courages or discourages, facilitates or constrains, certain types of understandings and actions from citizens certainly can be enhanced by post- positive interpretive studies, and I do not hesitate to venture such claims in Rights at Work.

This brings me to a very important point about Rosenberg's review and my response so far. All of the attention in these pages to issues of "causality" obscures the very different explanatory and analytical frame that structures Rights at Work. In short, my study derives its primary conceptual logic instead from the longstanding social science tradition of critical theorizing about "power."46 This rich tradition is especially helpful for making sense of interactions among different, relatively incommensurable forms of social influence as well as for theorizing at multiple levels of abstraction about the significance of changing social relations. Limited space does not allow me to outline here the complex, multidimensional analytical tools that I draw from this critical tradition.47 However, it is worth noting that such a con-

45. Again, the point is not just that multiple factors are present but that they are likely to be different in kind (incommensurable) and mutually constitutive in character. On pos- sibilistic explanation, see Geoffrey Hawthorne, Plausible Worlds: Possibility and Understanding in History and the Social Sciences (New York: Cambridge University Press, 1991). This is the type of theorizing that is common, if not clearly specified, in much social science treatment of social movements as well.

46. Of course, positivist social scientists have developed their own definitions of "power" that express, or converge with, their instrumental, linear conceptions of "causation." How- ever, I draw instead on critical social theorists who balance instrumental with more relational, dialectical notions that emphasize the intersubjective, socially constructed aspects of power. See Steven Lukes, Power: A Radical View (London: MacMillan, 1974); John Gaventa, Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (Urbana: University of Illinois Press, 1980); Nancy C. M. Hartsock, Money, Sex and Power (Boston: Northeastern University Press, 1983): Joan Cocks, The Oppositional Imagination: Feminism, Critique, and Political Theory (London: Routledge, 1989) ("Cocks, Oppositional Imagination"). My approach in Rights at Work integrates aspects of both critical neo-structuralist and post-structural theorists.

47. I considered responding to Rosenberg's review by simply focusing on how "causality' and "power" differ, but that seemed evasive and would require a much longer discussion than is possible here. For a more direct discussion of law as/and "power" that parallels mine, see




ceptual frame enables me to connect instrumental and relational, material and meaning-oriented, structured and contingent dimensions of social struggle in ways that elude both behavioral and many traditional interpretive or cultural approaches.48 In particular, my incorporation of a flexible power- oriented framework enables me to link interpretive understandings about law's "constitutive" character to themes of hierarchy and exclusion; allows me to assess legal meanings by their implications for class, gender, and race relations; and enhances critical analysis with a provocative angle on the dynamics of domination and resistance in an evolving hegemonic context. And it is this synthesis of critical theorizing about power, interpretive sociolegal analysis, and detailed empirical case study that is, regardless of its success or failure, the most distinctive ambition of Rights at Work. Again, such a project is an entirely different creature from that endorsed by Rosen- berg. To turn his challenge on its head, I simply do not see how positivist behavioralists can analyze the politics of social struggle for hundreds of pages without reliance on a power-oriented conceptual frame.

IV. ON METHODS

Rosenberg's provocative claims about research methods provide an opportunity for further brief commentary. Most interesting of all to me is his assertion that "Rights at Work is not a pure interpretivist work" because it incorporates "aspects of positivist social science into [the] research design, such as concern for diversity in case selection and formal structured surveys."

I am perplexed by this claim in several regards. The most obvious source of confusion is the charge that my "reaching out to positivist social science weakened rather than strengthened the study" (p. 21) This argument is made by a reviewer who spends many pages defending positivism and concludes by arguing that "the best scholarship may require multiple and varied approaches." I find it difficult to follow his arguments regarding why my particular mixing of approaches diluted rather than enhanced the final product.

But the claim strikes me as puzzling or problematic at a more fundamental level. Social scientists tend to speak of methods in two different senses-sometimes referring to "meta-level" theoretical approaches and research agendas in which epistemological concerns are highlighted, such as discussed in earlier pages; and other times referring to more "micro-level"

Hunt, "Law as a Constitutive Mode of Regulation" and other essays in Hunt, Explorations (cited in note 30). See also Mertz, 28 Law & Soc'y Rev. (cited in note 16).

48. Many interpretivists do not connect the focus on meaning to understandings of power. This is true of many classical anthropologists and much recent "new" interpretive social science. See Mertz, 28 Law & Soc'y Rev.




specific techniques of data gathering and evidentiary argument (or "testing"). Rosenberg's reference to positivist "techniques" and his examples of positivist "aspects" in my work suggest the latter narrow sense of methods. Here I disagree with his characterization, and perhaps with the views of some of my interpretivist kin. From my perspective, there is no such thing as an exclusively positivist mode of data collection. Interpretivists do, and should, draw on many of the same types of data gathering techniques as other social scientists utilize. Rights at Work explicitly argues that interpretive approaches should embrace "triangulating" modes of evidentiary argument. Precisely because objective reality is unknowable as "brute facts," the more different types of data than can be assembled in support of an interpretive argument the more compelling and clear it is likely to be. This approach endorses quantitative as well as qualitative techniques or methods, careful attention to specifying case selection criteria, interview procedures, and the like-all endeavors I attempt to incorporate into my study.49

It is quite true, of course, that interpretive works typically focus far more on limited numbers of (small N) case studies, which reduces the utility of quantitative data sets. Moreover, the concern for exploring citizen meaning making activities and interactions places a premium on qualitative techniques such as in-depth interviews and archival investigation far more than other types of inquiry. But there is no a priori reason why any particular techniques and data sets should be excluded from interpretive work. And there surely is no reason why qualitative studies should be any less rigorous, formalized, and intensive than quantitative analysis of large data sets. The same imperatives that authors work hard to generate "trust" from readers that the research was conducted in a conscientious, self-critical, and disci- plined way should bind all scholars.50 Indeed, labor-intensive qualitative research executed in close contact with research subjects often imposes much greater levels of scrutiny than do the often solitary, impersonal, anonymous number-crunching labors by scholars who rarely leave their offices for the field.

The key difference between positivist and interpretivist methods instead turs far more on issues of how data gathering techniques are interpreted and used-that is, on epistemological concerns-in scholarly explanation. In short, it is the differences in interpretive frames outlined in earlier pages that most distinguish these two types of scholarly work.51 Let

49. For examples of other interpretive, post-positivist works that utilize quantitative sta- tistical data, see John Gilliom, Surveillance, Privacy and the Law (Ann Arbor: University of Michigan Press, 1994); Stuart Scheingold, The Politics of Street Crime (Philadelphia: Temple University Press, 1991).

50. See Yvonna S. Lincoln & Egon G. Guba, Naturalistic Inquiry ((Beverly Hills, Cal.: Sage Publications, 1985).

51. This argument is consistent with one of the first principles of quantitative methods instruction-that "correlation does not equal causation." The implication is that explanations




me illustrate by addressing one type of data that Rosenberg himself highlights in his review. Both of our books count published articles on relevant subjects in the mass media as evidence for assessing the social significance of judicial decisions. Our techniques of data collection in this regard are quite similar. But we interpret this information in very different ways, for different purposes, working from different assumptions. For example, Rosen- berg examines newspaper and magazine coverage of Brown v. Board of Edu- cation to measure causal significance. In his analysis, the sheer numbers of articles are treated as independent indicators of reform litigation effectiveness. More articles connote increased indirect effects on the thinking processes of reading audiences and the greater the likelihood of social change; fewer articles suggest less effectiveness.52

Rosenberg's review critiques my use of similar data in two ways. First, he argues that the numbers of articles on pay equity-related legal issues and judicial decisions are not significant; and second, he contends that my analysis fails to separate effects of organization among activists from that of legal content in press coverage. But his terms-typically quantifying effects of isolated competing causes-miss the logic of my complex interactional analysis. My interpretation does not equate numbers of articles with impact per se. I show, first, that lawyers intentionally used lawsuits and judicial decisions as opportunities to proselytize for the equity cause in highly visible and respected media. Moreover, my interviews attest that the primary in- tended audiences were existing and potential activists in workplaces around the nation, who might act as intermediaries in mobilizing the rank and file. My case studies further demonstrate that key articles-here numbers of articles are secondary to the drama and content of coverage-in the New York Times and other prestigious media sources were in fact used in just this way at local levels to help convince leaders, rank and file workers, and employers that courts were supporting the equity cause, that opportunities for change were opening, that resources were available to support reform action.53 In short, media coverage both was generated and did work to convey legal knowledge about new, potentially effective claims for women workers. Mass media became but one element in a complex process through which movement members developed a common legal rights consciousness and

about how correlating factors may (or may not) influence one another or be "causally" related vary dramatically in form and content. See Becker, "Cases, Causes" (cited in note 23).

52. Rosenberg, Hollow Hope 111-16. Some scholars have challenged Rosenberg on his measures, comprehensiveness of data, and conclusions from a positivist perspective. See John Bohte, Roy B. Flemming, & B. Dan Wood, "The Supreme Court, The Media, and Legal Change: A Reassessment of Rosenberg's Hollow Hope" (presented at American Political Sci- ence Association annual meetings, Chicago, 1995). My point here, by contrast, is to emphasize how similar types of data can be interpreted and utilized differently.

53. Press coverage of dramatic equity-related cases showed up everywhere as significant-in newsletters, memos, meeting minutes, pamphlets, flyers, posters, speeches and, especially, interviews.




expectation of change over time-through which the movement itself came into being. In sum, interpretive and positivist research enterprises often use similar types of data, but they typically lead to quite different types of explanation about the meaning and significance of that data.

V. LAW AND SOCIAL CHANGE

Rosenberg ends his review on a gracious note by arguing that, despite all the other differences, we are not so far apart in our books' conclusions about how law figures into struggles for social change. He is correct that my specific case study imparts a misleadingly optimistic tone to my analysis, while his examples in The Hollow Hope contribute to a more uniformly pes- simistic tone. And he also is correct in noting that we both recognize that legal systems work primarily to protect the status quo and to enforce order; that legal tactics are never sufficient to advance transformative policy goals; and that the effects of legal action depend on a variety of extralegal contextual factors. Our seemingly different positions come down, he says, to perceptions of whether the glass is half full or half empty.

I again appreciate his effort to engage in a constructive fashion and to find common ground among different approaches. But I must respectfully disagree with his conclusion. Such an accounting-typically in quantitative images-obscures our qualitatively very different points of reference and terms of understanding the issues at stake; we are not viewing the same glass of water.54 Both of us talk about changes in similar indicators such as official policies, social behavior, public attitudes, the distribution of material goods, and organizational resources, it is true. But we conceptualize them very differently. Positivist approaches tend to disaggregate complex processes of social change into scores of discrete causal connections between legal decisions and possible behavioral outcomes. To use my earlier image of bowling, Rosenberg identifies each discrete ball that is tossed by a human agent and then measures its relative impact (directly and indirectly) on each of the pins separately; the aggregate impact of these independent collisions provides the basis for measuring the degree to which "real" change has occurred.

This strikes me as an unsatisfying way to assess law's role in struggles for social change. First, as noted in earlier pages here, such an instrumental approach defines the independent variable as discrete judicial opinions, thus significantly narrowing our capacity to generalize about the complex, variable manifestations of legal, or even just judicial, influence. Moreover,

54. My argument here shifts more to contrasting my approach with that of Rosenberg's specific argument in The Holow Hope, rather than with positivist models per se, because that is how his review frames the issues. Positivists might address issues of social change in a variety of ways.




positivist frameworks define "change" as a discrete dependent variable that is assessed by a mechanical standard of affirmative compliance measurable according to a one-dimensional (dichotomous) scale, like a bowling score. This is problematic in that positivist approaches often take the aims of official legal action to be as self evident as that of knocking down pins while bowling. But the actual goals and intentions of actors-litigators, movement supporters, or judges-are never as simple or clear as this. Again, assessments of action-and especially involving a concern for its effectiveness-that do not address the understandings and intentions of actors will not answer the types of questions at the heart of post-positive research agenda. At the same time, a wide range of arguably important, often unintended "effects" of legal rulings on differently situated thinking subjects variously laboring to name their situation, to assess their options, and to calculate their actions are discounted by the dichotomous compliance focus.55 For example, where The Hollow Hope considers defiance of desegrega- tion rulings by white southerners as a sign of ineffective reform litigation, many interpretive scholars have emphasized the ways in which this legally defined resistance was crucial to the process of civil rights movement build- ing and nurturing support for the cause around the country and in federal government. And even more problematic is the standard for assessing change that Rosenberg uses in his analysis. The expectation that courts must unilaterally generate in a short time behavioral changes across the nation that uniformly comply with specific legal mandates to qualify as "significant' impact connotes a standard that is so high as to assure its own negative conclusion.

Once again, my approach is very different, and incommensurable. For one thing, I already have noted at length how my framework directs attention to a far broader set of complex legal manifestations and dynamics than a top-down, linear judicial impact focus. In the constitutive framework, law is not just discrete commands imposed on society from an exclusive domain above, but it instead is manifest as a pluralistic mosaic of conventions and knowledges which serve as both resources and constraints for practical action throughout society. Contrary to the Realist view, my frame emphasizes that nearly all struggles in modem society will take place to a large extent on legally constituted terrain. The question concerns less whether law matters per se than the complex, often disparate and ambiguous terms of "how" it matters and what that means for differently situated persons and relationships.

55. 'The effects of a court ... cannot be equated with the dispositions of the cases that come before it. There are a host of other effects that flow from the activity of a court- eliciting anticipatory compliance or evasive maneuvers, stigmatizing or legitimizing a line of conduct, encouraging or suppressing the making of a claim, lowering or heightening estima- tion of conduct or of its regulators." Galanter, "Radiating Effects" at 124 (cited in note 31).




Rights at Work conceptualizes the character and dynamics of "social change" in very different terms as well. Consistent with earlier points, my angle on change directs attention: more to continuous processes of dialectical interaction and struggle among subjects than to discrete, one-shot impacts; more on the various dimensions of relative subject "position" (opportunities, resources) within ongoing power relationships than on individual resource gains; and more on the overall discursive terrains that structure intersubjective interaction than on simple policy compliance. Not only do legal factors typically figure differently for different actors at different institutional sites, but they figure differently over time as struggles evolve through their various stages. It is in this regard that my emphasis on relational power most distinguishes my project from that of a positivist. At the more micro-level, my primary indicator concerns changes in position and capacity (power) among those with a grievance (women workers) in the workplace; changes in employer behavior are only a small part of the consequences that are considered relevant. These indicators of change among working women included an increased psychological sense of efficacy and more sophisticated tactical political knowledge; expanded resources such as intra-organizational solidarity and alliances with other groups; and greater respect and willingness to bargain from employers. Indeed, my primary indicator of change was not the final achievement of any singular goal, but the very expansion of goals, opportunities, and capacities for extending struggles for better position over time.

At a higher level of abstraction, Rights at Work conceptualizes these processes in terms of resistance to domination within the larger hegemonic social structure. From this process-oriented perspective, change is not simply a matter of instrumental goal realization or linear progress, as a positivist might define things. The very ends of struggle themselves are understood to be constantly contested and renegotiated among aggrieved populations; each level of struggle is both prefigured by past relations and sets the terms for subsequent relations. Moreover, the type of top-down, architectonic, system-wide change that Rosenberg's analysis stipulates is viewed with skepti- cism by post-structuralist, post-positive analysts. The latter approach takes its cues from social movement scholarship, critical theories of power, and actors in public life. In this view, social change is always uneven and varies broadly among the many dispersed sites of institutional relations throughout society. Modification of formal, state-authorized policies figure into many contested sites but do not uniformly, unilaterally determine the outcomes of those contests. This is why decentered approaches to law and localized studies of institutional relations are viewed as important.56 Finally, attention to

56. See Cocks, Oppositional Imagination (cited in note 46); and Alan Hunt, "Rights and Social Movements: Counter-Hegemonic Strategies," in Hunt, Explorations 227-48 (cited in note 30).




hegemony underlines that each seeming advance for a group or for a princi- ple represents a systemic accommodation constituting a new form of orderly hierarchy; movements for social change are always ambiguous in their achievements and bound by their past efforts.

All in all, positivist and post-positivist projects thus are not easily com- parable in how they view law's possible roles in processes of social change. Indeed, my goal in Rights at Work was to analyze not just whether or when law generates change and causes transformation, but rather how law and social change are intrinsically related in ongoing processes social struggle. Once again, the proclivity among interpretivists for viewing social relations in complex, dynamic, interactive, ambiguous terms clashes dramatically with the traditional social scientific demand for simple, elegant, conclusive causal explanations. The interpretive project is rooted in the basic premise that we just cannot, and should not pretend to, be too positive in our efforts to understand the logic of law in social relations.

VI. FINAL THOUGHTS

My goal in this essay has been to respond to Gerald Rosenberg's provocative critical challenge. But I have no illusions that my reasoned arguments will convert anyone to my way of seeing things. As in comparing entire languages or cultures, we can articulate lots of conceptual differences among social scientific research agendas and epistemologies, yet arguing for the superiority of one over the another is difficult, even futile. As the in- scription that begins this essay again suggests, I suspect that the types of research we do as scholars are largely matters of developed belief, of varying senses and sensibilities, sustained by long formed habits of mind as much as by abstract critical reason. We thus must recognize that debates over method often just make each other mad, in the several senses of the word. But I join Rosenberg in emphasizing that we can learn from each other; common ground can be found only through engagement, and intellectual pursuits can benefit greatly from conceptual synthesis and experimentation. If nothing else, the interpretivist insistence on the partiality of all intellectual constructs underlines the importance of valuing diverse ways of know- ing. In this regard, I again extend my gratitude to Gerald Rosenberg for formulating his challenge at such a well reasoned, principled level as well as for the opportunity to respond in kind; I hope that my vigorous argument does not betray the constructive purpose with which he began the ex- change. On behalf of the both of us, I welcome others to join in the discussion.



causal versus constitutive explanations (or, on the difficulty of being so positive...)

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