“Legality with a Vengeance”: Reclaiming Distribution for Sociolegal Studies

• DOI: http://doi.org/10.1111/lasr.12349
• Date: 01 September 2018
• Published date: 01 September 2018

“Legality with a Vengeance”: Reclaiming

Distribution for Sociolegal Studies

Sandra R. Levitsky Rachel Kahn Best

Jessica Garrick

The law and society community has argued for decades

for an expansive understanding of what counts as “law.”

But a content analysis of articles published in the Law &

Society Review from its 1966 founding to the present finds

that since the 1970s, the law and society community has

focused its attention on laws in which the state regulates

behavior, and largely ignored laws in which the state dis-

tributes resources, goods, and services. Why did socio-

legal scholars avoid studying how laws determine access to

such things as health, wealth, housing, education, and

food? We find that socio-legal scholarship has always used

“law on the books” as a starting point for analyses (often

to identify departures in “law in action”) without ever

offering a programmatic vision for how law might amelio-

rate economic inequality. As a result, when social welfare

laws on the books began disappearing, socio-legal scholar-

ship drifted away from studying law’s role in creating, sus-

taining, and reinforcing economic inequality. We argue

that socio-legal scholarship offers a wide range of analyti-

cal tools that could make important contributions to our

understanding of social welfare provision.

The law and society community has argued for decades for an

expansive understanding of what counts as “law.” They have stud-

ied informal systems of normative ordering alongside formal or

official law (Engel 1980, 1984; Greenhouse 1986; Merry 1988).

They have tracked down law on street corners (Nielsen 2004) and

The authors wish to thank Lauren Edelman, Frank Munger, Carroll Seron, Hana

Brown, and theanonymous LSR reviewers for commentson earlier versions of thisarticle.

Please direct all correspondence to Sandra R. Levitsky, Department of Sociology,

University of Michigan, 4111 LSA Building, 500 S. State St., Ann Arbor, MI 48109-1382;

e-mail: slevitsk@umich.edu

Law & Society Review, Volume 52, Number 3 (2018)

©2018 Law and Society Association. All rights reserved.

709

in the workplace (Albiston 2010; Marshall 2003), in welfare offices

(Sarat 1990) and schools (Morrill et al. 2010). But even as they

persuaded themselves and the world that “law is all over” (Sarat

1990), sociolegal scholars have focused primarily on laws in which

the state regulates behavior, and largely ignored laws in which the

state distributes resources, goods, and services. This article asks

why sociolegal scholars have placed distributive laws outside the

scope of the field—despite the field’s expansive definition of what

counts as “law”—and what the sociolegal perspective might add to

existing understandings of social welfare provision.

Analyzing patterns over time in articles published in the

Law & Society Association’s flagship journal, the Law & Society

Review (LSR), we find that sociolegal scholars initially studied a

broad range of laws, but limited their scope over time in response

to political and legal changes. In the late 1960s, as the field of law

and society was taking shape, policy makers were drawing on

social science in administering new social welfare laws; the courts

were expanding state provision; and foundations encouraged

scholars to link social science, law, and social problems. This politi-

cal climate encouraged sociolegal scholars to study both regula-

tory and distributive law. But as the federal judiciary took a

conservative turn in the early 1970s and the welfare state faced a

sustained political attack from the right, sociolegal scholarship

involving issues of state economic distribution dramatically

declined. Sociolegal scholars turned away from the systematic

study of how laws determine access to health, wealth, education,

and food.

We argue that sociolegal research followed these shifts in the

political environment in part because the field lacks theories of

the relationship between law and social welfare. Borne out of a

desire to improve existing legal structures rather than challenge

or transform them (Abel 1980; Sarat and Silbey 1988), sociolegal

scholarship has always used “law on the books” as a starting point

for analyses (often to identify departures in “law in action”).

Rarely have sociolegal scholars considered how legal ideologies,

symbols, and categories shape the absence of laws on the books. As

a result, when social welfare laws began disappearing, sociolegal

scholarship drifted away from studying law’s role in creating, sus-

taining, and reinforcing economic inequality. We argue that socio-

legal scholars should reclaim issues that have been defined as

outside the scope of the field, studying distribution in addition to

regulation. Sociolegal scholarship offers a wide range of analytical

tools that could make important contributions to both our theo-

retical and empirical understanding of social welfare provision

(Skrentny 2006). In particular, applying a constitutive perspective

to understand how laws structure political claims and conflicts

710 Legality with a Vengeance