Legality, Social Research, and the Challenge of Institutional Review Boards

Legality and the Law & Society Tradition In a wonderful new book, Law as a Means to an End: Threat to the Rule of Law, Brian Tamanaha (2006) picks up on a debate that graced the pages of the Law & Society Review 40 years ago. In Volume 1, No. 1, the kickoff issue, law professor Carl Auerbach (1966) invited social scientists to help lawyers chart the law's effectiveness and design more effective laws. Sociologist Jerome Skolnick (1966) demurred; drawing on the work of his colleague Philip Selznick (1969), he rejected the instrumentalist agenda Auerbach offered, arguing that the task of the sociology of law was to identify the social conditions in which legality emerges and flourishes. Tamanaha writes as if Auerbach won the debate. His subtitle boldly announces his thesis. Tamanaha's book, though not written with Auerbach in mind, is a reaction to the type of instrumentalism that Auerbach advocated. Tamanaha accuses legislators, judges, sociolegal scholars, and particularly legal scholars of ignoring-indeed, abandoning-the concern with justice, and of exchanging it for a narrow utilitarian conception of law. In so doing, he laments, law delves too deeply into cost-benefit policy analysis, endangering its autonomy, and its concerns with justice. The trend Tamanaha identifies is clearly observable. Witness the triumph of legal realism. Witness the rise of law and economics -and the subordination of law to the principle of utility, a shift that has transformed law into a branch of applied economics and produced what David Driesen (2002) has called a new natural law theory with the Coase Theorem at its core. It may be that the "mysterious science" can only be deciphered through the "dismal science." It is not clear, however, that Tamanaha is correct-that instrumentalism now thoroughly pervades the academy. At least with respect to the tradition of the Law & Society Association, he may be overstating the case. Indeed, the position outlined by Skolnick seems to inform much of the scholarship of contributors to this Review. Certainly, members of this Association have rejected die notion that social scientists should become, in David Trubek's phrase, the law's "handmaidens" (1988). To the extent that instrumentalism is present in the scholarship of Association members, it is usually in due context, proportion, and moderation. Although instrumentalism certainly looms large in our field, hyperinstrumentalism certainly does not dominate our house of many mansions (Erlanger 2005). Of course, today many members of the Association hold a more jaded view of law and the legal process than they or their counterparts did in 1966, and this may be part of the resistance to hyper-instrumentalism, which is what I think Tamanaha really objects to. Shifting politics, postmodernism, critical theories of various stripes, and the cultural turn have all taken their toll on instrumentalist optimism about "knowing," both knowing the social conditions that give rise to law, legality, and the legal system, and knowing enough to construct (or even advocate) effective programs to remedy the pathologies of the existing social order. But single-minded instrumentalism has by no means come to dominate our discourse. Indeed, something of the opposite may be true (Scheingold & Sarat 2004, 2005). Many intellectual currents during the past 40 years since the founding of this Association have challenged optimistic instrumentalism and required us to excavate our epistemology in order to anchor our research on more solid foundations, or at least to secure them more firmly on the sands of doubt. Disappointment and skepticism do not indicate rejection of foundational concerns and the quest for justice, and they certainly do not reflect an embrace of instrumentalism. Indeed, disillusionment-even cynicism-may testify to the endurance of idealism. Many sociolegal scholars who critique the contemporary legal process have not abandoned law for instrumentalism, but report that legal institutions have too often abandoned law. …