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Legal Rational Myths: The New Institutionalism and the Law and Society Tradition

Published online by Cambridge University Press:  27 December 2018

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Copyright © American Bar Foundation, 1996 

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References

1 See, e. g., Robert Nelson, Partners with Power: Social Transformation of the Large Law Firm (Berkeley: University of California Press, 1989); Marc Galanter & Thomas M. Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago: University of Chicago Press, 1991); Wolf Heydebrand & Carroll Seron, Rationalizing Justice: The Political Economy of Federal District Courts (Albany, N. Y.: State University of New York Press, 1990); Alfred Blumrosen, Modern Law: The Transmission System and Equal Employment Opportunity (Madison: University of Wisconsin Press, 1993) (“Blumrosen, Modern Law”).Google Scholar

2 See, e. g., Williamson, Oliver E., “Transaction-Cost Economics: The Governance of Contractual Relations,” 22 J. L. & Econ. 233–61 (1979); Mark C. Suchman & Mia L. Cahill, “The Hired-Gun as Conciliator: The Case of Lawyers in Silicon Valley” (presented at University of Wisconsin Institute of Legal Studies Conference on Business Disputing, Madison, 1993); Baron, James N., Dobbin, Frank R. & Devereaux Jennings, P., ”War and Peace: The Evolution of Modern Personnel Administration in U. S. Industry,” 92 Am. J. Soc. 350 (1986);; Frank R. Dobbin, Lauren Edelman, John W. Meyer, W. Richard Scott, & Ann Swidler, “The Expansion of Due Process in Organizations,” in Lynne G. Zucker, ed., Institutional Patterns in Organizations: Culture and Environment (Cambridge, Mass: Ballinger, 1988) (“Dobbin et al., ‘Expansion of Due Process“’); Edelman, Lauren B., “Legal Environments and Organizational Governance: The Expansion of Due Process in the Workplace,” 95 Am. J. Soc. 1401 (1990); id., ”Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” 97 Am. J. Soc. 1531 (1992); Neil Fligstein, The Transformation of Corporate Control (Cambridge: Harvard University Press, 1990) (“Fligstein, Transformation”).Google Scholar

3 But see Andrew L. Creighton, “The Emergence of Incorporation as a Legal Form for Organizations” (Ph. D. diss., Dep't of Sociology, Stanford University, 1990) (“Creighton, ‘Emergence”’); Edelman, 95 Am. J. Soc. and 97 Am. J. Soc.; Mark C. Suchman, “On Advice of Counsel: Law Firms and Venture Capital Funds as Information Intermediaries in the Structuration of Silicon Valley” (Ph. D. diss., Dep't of Sociology, Stanford University, 1994) (“Suchman, ‘On Advice of Counsel’”).Google Scholar

4 Contributions from Powell & DiMaggio, eds., The New Institutionalism in Organizational Analysis are cited to “New Institutionalism” by author(s) and title and, on repeated citation, by short title.Google Scholar

5 E. g., Tushnet, Mark, “An Essay on Rights,” 62 Tex. L. Rev. 1363 (1984); Gabel, Peter, “Reification in Legal Reasoning,” 3 Res. L. & Soc. 25 (1980).Google Scholar

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7 E. g., James S. Coleman, Power and the Structure of Society (New York: Norton, 1974); Tolbert, Pamela S. & Zucker, Lynne G., “Institutional Sources of Change in the Formal Structure of Organizations: The Diffusion of Civil Service Reform, 1880–1935,” 28 Admin. Sci. Q. 22 (1983); Fligstein, Transformation; Davis, Gerald F., “Agents without Principles? The Spread of the Poison Pill through the Intercorporate Network,” 36 Admin. Sci. Q. 583 (1991); Davis, Gerald & Thompson, Tracy, “A Social Movement Perspective on Corporate Control,” 39 Admin. Sci. Q. 141 (1994).Google Scholar

8 E. g., Philip Selznick, Law, Society, and Industrial Justice (New York: Russell Sage Foundation, 1969) (“Selznick, Law, Society”); Oliver E. Williamson, Markets and Hierarchies (New York: Free Press, 1975); id., 22 J. L. & Econ. 233 (1979); Edelman, 95 Am. J. Soc. and 97 Am. J. Soc.; Suchman, “On Advice of Counsel”; Stryker, Robin, “Rules, Resources, and Legitimacy Processes: Some Implications for Social Conflict, Order, and Change,” 99 Am. J. Soc. 847 (1994); Heimer, “Explaining Variation.”Google Scholar

9 By “legal formalism” we refer here to the largely asocial treatment of law that has dominated Anglo-American jurisprudence since the late 1800s (e. g., Christopher C. Langdell, A Selection of Cases on the Law of Contracts (Boston: Little, Brown, 1871); id., Summary of the Law of Contracts (Boston: Little, Brown, 1880)). This philosophy portrays law as an internally coherent and self-contained logical system–a “seamless web” of tightly linked principles, free from class interests and other social influences. Separating law from society, the legal formalist perspective emphasizes abstract doctrines and ahistorical rights, all of which are applied in a uniform, rational, and consistent manner by a neutral and autonomous judiciary. See Grey, Thomas, “Langdell's Orthodoxy,” 45 U. Pitt. L. Rev. 1 (1983); Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass.: Belknap Press, 1993); see also Galanter, Marc & Trubek, David, “Scholars in Self-Estrangement: Some Reflections on the Crisis of Law and Development Studies in the United States,” 1974 Wis. L. Rev. 1062.Google Scholar

10 Macaulay, Stewart, “Non-contractual Relations in Business: A Preliminary Study,” 28 Am. Soc. Rev. 55 (1963). The businesses that Macaulay studied took pains to avoid or circumvent the formal restrictions of contracts and contract doctrine, generally preferring a “handshake agreement” backed by tacit community norms. Further, where formal contracts did exist and were breached, the contracting parties often eschewed lawsuits in favor of relationship-preserving extralegal adjustments to their original accords. While contract law was not entirely irrelevant, it served primarily to shape transactions at the margins, providing a formal backdrop and a communication device for informal legal arrangements.Google Scholar

11 Stewart Macaulay, Law and the Balance of Power: The Automobile Manufacturers and Their Dealers (New York: Russell Sage Foundation, 1966). Both dealers and manufacturers regularly avoided resorting to the official administrative mechanism for deciding franchise disputes, instead developing a complex alternative process for resolving their grievances informally.Google Scholar

12 Selznick, Law, Society. Edelman, 97 Am. J. Soc. (cited in note 2), has recently elaborated this analysis, showing that organizations respond to the vague prescriptions of civil rights law by developing informal models of compliance, which courts then incorporate into formal rulings on what is required to satisfy the statutory mandate. We discuss this argument in greater detail below.Google Scholar

13 See, e. g., Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 209 (1979); Gabel, 3 Res. L. & Soc. (cited in note 5); Boyle, James, “The Politics of Reason: Critical Legal Theory and Local Social Thought,” 133 U. Pa. L. Rev. 685 (1985); Peller, Gary, “The Metaphysics of American Law,” 73 Cal. L. Rev. 1151 (1985).Google Scholar

14 CLS can, itself, be accused of embracing an overly formalist view of law. The claim that law constitutes social thought patterns (and thus social relations) arguably takes law too seriously and ignores the reciprocal social construction of legal doctrine. Our own view is that CLS is useful because it points out the extent to which law, within any given social context, helps to constitute and reify social relations. However, this constitutive role of law must be understood in the context of the historically contingent institutional regimes that create legal meaning.Google Scholar

15 For surveys of organizational sociology, see W. Richard Scott, Organizations: Natural, Rational, and Open Systems (3d ed. Englewood Cliffs, N. J.: Prentice-Hall, 1992); Gareth Morgan, Images of Organization (Newbury Park, Cal.: Sage Publications, 1986). Early oganizational sociology was dominated by what Morgan refers to as “mechanistic” and “organic” models of organizational life. Researchers differed over whether organizations were best seen as rationally designed social tools (the mechanistic view) or as self-perpetuating natural entities (the organic view); however, most analysts agreed that organizational behavior reflected the concerted efforts of complex hierarchies to pursue objective, material goals–usually through controlled interactions among intraorganizational structural components, and (in some versions) through controlled exchanges with extraorganizational resource environments. Even the handful of conflict-theoretic “political” critiques emerging at the time generally accepted the basic premise that organizations could be understood as goal-driven resource-processing systems–albeit systems divided by factional struggles over who would set the goals and who would control the resources.Google Scholar

16 The approach that we refer to here as “cognitive institutionalism” has often been identified with an emphasis on “institutionalization as a process,” while the approach that we designate “behavioral institutionalism” has often been associated with a focus on “institutionalization as a product”; see, e. g., Richard Scott, W., “The Adolescence of Institutional Theory,” 32 Admin. Sci. Q. 493 (1987). This alternative terminology reflects the fact that the former camp associates institutionalized rule systems primarily with distinctive cognitive processes, while the latter associates them primarily with distinctive behavioral consequences.Google Scholar

17 Selznick, Philip, “Foundations of the Theory of Organizations,” 13 Am. Soc. Rev. 2535 (1948); id., TVA and the Grass Roots (Berkeley: University of California Press, 1949) (“Selzick, TVA”); id., Leadership in Administration (Evanston, Ill,: Row, Peterson, 1957). For an overview of other works in this tradition, see Charles Perrow, Complex Organizations: A Critical Essay 157–77 (New York: Random House, 1986).CrossRefGoogle Scholar

18 DiMaggio, Paul J. & Powell, Walter W., “Introduction,” New Institutionalism. Google Scholar

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20 Selznick, TVA.Google Scholar

21 Peter L. Berger & Thomas Luckmann, The Social Construction of Reality (New York: Doubleday, 1967).Google Scholar

22 John W. Meyer & Brian Rowan, “Institutionalized Organizations: Formal Structure as Myth and Ceremony” (1977), and Zucker, Lynne G., “The Role of Institutionalization in Cultural Persistence” (1977), New Institutionalism. See also Meyer, John W., “The Effects of Education as an Institution,” 83 Am. J. Soc. 55 (1977); id., “Institutionalization and the Rationality of Formal Organizational Structure,”in John W. Meyer & W. Richard Scott, eds., Organizational Environments: Ritual and Rationality (Beverly Hills, Cal.: Sage Publications, 1983) (“Meyer & Scott, Organizational Environments”); Lynne G. Zucker, “Organizations as Institutions,” in S. B. Bacharach, ed., Research in the Sociology of Organizations (Greenwich, CT: JAI Press, 1983); Tolbert & Zucker, 28 Admin. Sci. Q. (cited in note 7); Lynne G. Zucker, ed., Institutional Patterns and Organizations (Cambridge, Mass.: Ballinger, 1988).Google Scholar

23 Scott, , 32 Admin. Sci. Q. at 496.Google Scholar

24 Meyer, “Institutionalization and the Rationality of Formal Organizational Structure,”in Meyer & Scott, Organizational Environments. Google Scholar

25 Meyer, & Rowan, , “Institutionalized Organizations,” New Institutionalism 44.Google Scholar

26 Tolbert & Zucker, 28 Admin. Sci. Q. Google Scholar

27 W. Richard Scott, “The Organization of Environments: Network, Cultural, and Historical Elements,”in Meyer & Scott, Organizational Environments. Google Scholar

28 Scott, 32 Admin. Sci. Q. at 496 (cited in note 16).Google Scholar

29 Walter W. Powell, “Expanding the Scope of Institutional Analysis,”New Institutionalism at 189–90.Google Scholar

30 Paul J. DiMaggio & Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields” (1983), New Institutionalism.CrossRefGoogle Scholar

31 See, respectively, Paul J. DiMaggio, “Constructing an Organizational Field as a Professional Project: U. S. Art Museums, 1920–1940”; Joseph Galaskiewicz, “Making Corporate Actors Accountable: Institution-Building in Minneapolis-St. Paul”; Steven Brint & Jerome Karabel, “Institutional Origins and Transformations: The Case of American Community Colleges”; Neil Fligstein, “The Structural Transformation of American Industry: An Institutional Account of the Causes of Diversification in the Largest Firms, 1919–1979,”New Institutioism. See also Steven Brint & Jerome Karabel, The Diverted Dream: Community Collegs and the Promise of Educational Opportunity in America, 1900–1985 (New York: Oxford University Press, 1989) (“Brint & Karabel, Diverted Dream”); Fligstein, Neil, “The Spread of the Multidivisional Form among Large Firms, 1919–1979,” 50 Am. Soc. Rev. 377 (1985).Google Scholar

32 Suchman, Mark C., “Managing Legitimacy: Strategic and Institutional Approaches,” 20 Acad. Management Rev. 571610 (1995).CrossRefGoogle Scholar

33 See, e. g., Tom R. Tyler, Why People Obey the Law (New Haven, Conn.: Yale University Press, 1990) (“Tyler, Why People Obey”).Google Scholar

34 See, e. g., Antunes, George & Hunt, A. L., “The Impact of Certainty and Severity of Punishment on Levels of Crime in American States: An Extended Analysis,” 64 J. Criminal L. & Crimmology 486 (1973); Jack P. Gibbs, “The Deterrence Doctrine: Theory, Research, and Penal Policy,”in Leon Lipson & Stanton Wheeler, eds., Law and the Social Sciences (New York: Russell Sage Foundation, 1986).Google Scholar

35 Tyler, Why People Obey.Google Scholar

36 Schwartz, Richard D. & Orleans, Sonya, “On Legal Sanctions,” 34 U. Chi. L. Rev. 274 (1967); Berkowitz, Leonard & Walker, Nigel, “Laws and Moral Judgements,” 30 Sociometry 410 (1967). Harold, Cf. Grasmick, G. & Bursik, Robert J. Jr., “Conscience, Significant Others, and Rational Choice: Extending the Deterrence Model,” 24 Law & Soc'y Rev. 837 (1990).Google Scholar

37 Friedland, Roger & Alford, Robert R., “Bringing Society Back In: Symbols, Practices and Institutional Contraditions,” New Institutionalism.Google Scholar

38 The burgeoning literature on “procedural justice” (e. g., Tom R. Tyler & E. Allan Lind, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988) (“Tyler & Lind, Social Psychology”), offers a telling example of how sociolegal studies might benefit from greater sensitivity to the constitutive aspects of the law. Although this research program has developed a substantial body of evidence regarding which sorts of legal procedures Americans consider most fair, it has given little attention to the possibility that these popular standards might, themselves, be socially constructed-and constituted, in part, by notions of due process embedded and embodied in the American legal system. Cf. Edelman, 95 Am. J. Soc. (cited in note 2); Jepperson, Ronald L. & Meyer, John W., “The Public Order and the Construction of Formal Organizations,” New Instiutionalism.Google Scholar

39 DiMaggio, Paul J. & Powell, Walter W., “Introduction,” New Instiutionalism 16 ff.; see also James G. March, “Decisions in Organizations and Theories of Choice,”in A. H. Van de Van & W. F. Joyce, eds., Perspectives on Organization Design and Behavior (New York: Wiley, 1981) (“Van de Van & Joyce, Perspectives”).Google Scholar

40 E. g., DiMaggio, , “Constructing an Organizational Field,” New Institutionalism.Google Scholar

41 See, e. g., Zucker, “Role of Institutionalization,” New Institutionalism (cited in note 22).Google Scholar

42 Meyer & Rowan, “Institutionalized Organizations,” New Instituionalism (cited in note 22); DiMaggio & Powell, “Iron Cage Revisited,” New Institutionalism (cited in note 30).Google Scholar

43 Friedland & Alford, “Bringing Society Back In,” New Institutionalism; see also Frank R. Dobbin, “The Origins of Economic Principles Entrepreneurs and Public Policy in 19th Century America,”in W. Richard Scott & Søren Christensen, The Institutional Construction of Organizations (Newbury Park, Cal.: Sage Publications, 1995) (“Scott & Christensen, Institutional Construction”); Suchman, “On Advice of Counsel” (cited in note 3); Lauren B. Edelman, Christopher Uggen, & Howard S. Erlanger, “The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth” (presented at Law & Society Association annual meeting, Toronto, 1995) (“Edelman et al., ‘Endogeneity”’).Google Scholar

44 Zucker, “Role of Institutionalization,” New Institutionalism (cited in note 22). See also Meyer & Rowan, “Institutionalism Organizations,” New Institutionalism (cited in note 22); Friedland & Alford, “Bringing Society Back in,” New Institutionalism (cited in note 37).Google Scholar

45 Meyer and Rowan refer to this meaning-preserving collusion as embodying a “logic of confidence”-a double-entendre evoking both “public confidence” and the “confidence game.” Meyer & Rowan, “Institutionalized Organizations,”New Institutionalism.Google Scholar

46 The relevance of institutionalism to sociolegal work on organizations is evident in the fact that virtually all recent students of law and organizations draw heavily on this tradition. See, e. g., Dobbin et al., “Expansion of Due Process” (cited in note 2); Edelman, 95 Am. J. Soc. (cited in note 2); Creighton, “Emergence” (cited in note 3); Edelman, 97 Am. J. Soc. (cited in note 2); Dobbin et al., 99 Am. J. Soc. (cited in note 6); Suchman, “On Advice of Counsel.”Google Scholar

47 Abzug & Mezias, 4 Organization Sci. (cited in note 6).Google Scholar

48 Christopher Stone, Where the Law Ends: The Social Control of Corporate Behavior (New York: Harper & Row, 1975) (“Stone, Where the Law Ends”).Google Scholar

49 Stone, for example, shows how organizational structure encourages inattention to legal requirements; Vaughan argues that organizational structure encourages individuals within Organizations to place organizational goals above legal requirements; and Burk contends that individuals in organizations use legal requirements to advance other, extralegal interests. Stone and Vaughan show how attributes of bureaucracy such as task specialization, decentralized decision making, and interdivisional competition are conducive to noncompliance. In addition, Katz points out that officials within organizations often mask violations from outside review. Stone, Where the Law Ends; Diane Vaughan, Controlling Unlawful Organizational Behavior: Social Structure and Corporate Misconduct (Chicago: University of Chicago Press, 1983); James Burk, Values in the Marketplace: The American Stock Market Under Federal Securities Law (New York: Walter de Gruyer, 1988); Katz, Jack, “Cover-up and Collective Integrity: On the Natural Antagonism of Authority Internal and External to Organizations,” 25 Soc. Prob. 3 (1977). See also Frederick Wirt, The Politics of Southern Equality: Law and Social Change in a Mississippi County (Chicago: Aldine, 1970); Diver, Colin S., “The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions,” 65 Va. L. Rev. 43 (1979); Clune, William H., “A Political Model of Implementation and the Implications of the Model for Public Policy, Research, and the Changing Role of Lawyers,” 69 Iowa L. Rev. 47 (1983); Keith Hawkins, Environment and Enforcement (Oxford: Clarendon Press, 1984) (“Hawkins, Environment and Enforcement”); Blumrosen, Modern Law (cited in note 1).Google Scholar

50 The Law and Society literature is replete with cases in which legal “controls” on organizational behavior consist almost entirely of broad and ambiguous mandates, with little “plain meaning.” Usually, this is no accident: Statutory ambiguity results largely from corporate lobbying, which tends to dilute strong legislative language. For similar reasons, laws targeted toward organizations tend to address procedure more than substance, to have weak and poorly funded enforcement mechanisms, and to provide little feedback on what constitutes compliance. See, e. g., Paul Burstein, Discrimination, Jobs, and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal (Chicago: University of Chicago Press, 1988); Edelman, 97 Am. J. Soc. (cited in note 2).Google Scholar

51 Meyer, & Rowan, , “Institutionalized Organizations,” New Institutionalism; DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism (cited in note 30); Scott, Richard & Meyer, John W., “The Organization of Societal Sectors: Propositions and Early Evidence” (1983) New Institutionalism.Google Scholar

52 DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism 6774.Google Scholar

53 In our discussion of how Law and Society work may inform the New Institutionalism (below), we challenge the common institutionalist assumption that legal mandates operate primarily through coercion.Google Scholar

54 Suchman, 20 Acad. Management Rev. (cited in note 32).Google Scholar

55 For examples of this approach, see Dobbin et al., “Expansion of Due Process” (cited in note 2); Edelman, 95 Am. J. Soc. (cited in note 2); id., 97 Am. J. Soc. (cited in note 2); Abzug & Mezias, 4 Organization Sci.; Heimer, “Explaining Variation” (cited in note 6).Google Scholar

56 For a rare Law and Society analysis of symbolic response, see Hawkins, Environment and Enforcement.Google Scholar

57 See Friedland & Alford, “Bringing Society Back In,”New Institutionalism (cited in note 37); see also Edelman, 97 Am. J. Soc. (cited in note 2).Google Scholar

58 Meyer & Rowan, “Institutionalized Organizations,” New Institutionnlism 58 ff. (cited in note 22).Google Scholar

59 See, e. g., Edelman, 97 Am. J. Soc. (cited in note 2).Google Scholar

60 Friedland, & Alford, , “Bringing Society Back In,” New Institutionalism 250.Google Scholar

61 DiMaggio & Powell, “Iron Cage Revisited,”New Institutionalism (cited in note 30); cf. Anthony Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis (Berkeley: University of California Press, 1979).Google Scholar

62 See, e. g., Vaughan, Diane Transaction Systems and Unlawful Organizational Behavior,” 29 Soc. Prob. 373 (1982).Google Scholar

63 Edelman, 97 Am. J. Soc. Google Scholar

64 Ironically, the New Institutionalism suggests that the more uncertain the law is, the more intense such sense-making activity will be. See, e. g., DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism 77 (“The greater the extent to which technologies are uncertainty or goals are ambiguous withing a field, the greater the rate of isomorphic change”).Google Scholar

65 There is considerable empirical support for the New Institutionalist version of organizational compliance with law. Analyses of the diffusion of various responses to law often show that the rate of adoption is proportionate to the prevalence of such structures in the population, which supports the notion of normative isomorphism. Edelman, 95 Am. J. Soc. (cited in note 2); id., 97 Am. J. Soc. (cited in note 2); Sutton, John R., Dobbin, Frank R., Meyer, John W., & Richard Scott, W. Legalization of the Workplace,” 99 Am. J. Soc. 944 (1994). Further, Edelman, Uggen, and Erlanger find that while employers adopt discrimination grievance procedures in the belief that such procedures will reduce the likelihood of litigation, there is little objective evidence to validate this belief. The personnel and legal professions, however, have actively promulgated this unsubstantiated assumption. Edelman et al., “Endogeneity” (cited in note 43).Google Scholar

66 Emphasis added; Scott, & Meyer, , “The Organization of Societal Sectors,” New Institutionalism 124 (cited in note 51).Google Scholar

67 While it might initially seem contradictory to claim both that organizations construct the meaning of law and that law constructs the capacities of organizations, an institutional perspective would suggest that this paradox rests on a faulty premise. The contradiction arises only if one assumes that each organization encounters the law in isolation from all others and that either the law or the organization or both must be exogenous to this encounter. In the institutional model, however, legal and organizational forms emerge together, as part of a larger process of sector-level development. Both laws and organizations gain solidity from the structuration of an entire institutional environment, and while both play important parts in this structuration, neither is purely an instrument of the other.Google Scholar

68 Edelman, 95 Am. J. Soc. (cited in note 2); id., 97 Am. J. Soc. (cited in note 2); Lauren B. Edelman & Stephen Petterson, “Symbols and Substance in Organizational Response to Civil Rights Law” (Dep't of Sociology, University of Wisconsin, Madison, 1994) (“Edelman & Petterson, ‘Symbols and Substance”’); Edelman et al., “Endogeneity.”Google Scholar

69 Edelman, 97 Am. J. Soc.; Edelman et al., “Endogeneity.”Google Scholar

70 Edelman & Petterson, “Symbols and Substance.”Google Scholar

71 “Rule skepticism” actually predates the Law and Society tradition, having first been introduced by the Legal Realists in the 1930s. See, e. g., Llewellyn, Karl, “A Realistic Jurisprudence-The Next Step,” 30 Colum. L. Rev. 431 (1930).”Google Scholar

72 See, e. g., Hunt, Alan, “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc‘y Rev’ 11 (1985).Google Scholar

73 Other versions of structuralism are reasonably compatible with radical indeterminacy: One could, for example, formulate a model in which the relative autonomy of the law would rest solely on a system of material checks and balances, with doctrine playing little independent role. However, such materialist structuralism, like crass instrumentalism, enjoys little support in contemporary sociolegal circles. Rather the tone of the debate is closer to the position of Critical Legal Studies, which holds that contradictions among legal principles are so consequential that by revealing them, one can actually problematize and delegitimize the social order as a whole.Google Scholar

74 Under the rubric of “legal culture,” sociolegal scholars have begun to reexamine the internal consistency of formal and informal rule systems, in much the manner advocated here. To date, however, these investigations have been strong on description and weak on theory. Greater dialogue between students of legal culture and their counterparts in institutional analysis might go a long way toward remedying this imbalance.Google Scholar

75 Anthony Giddens, The Constitution of Society (Berkeley: University of California Press, 1984).Google Scholar

76 Peter L. Berger & Thomas Luckmann, The Social Construction of Reality (New York: Doubleday, 1967).Google Scholar

77 DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism (cited in note 30).Google Scholar

78 Jepperson, & Meyer, , “Public Order,” New Institutionalism (cited in note 38).Google Scholar

79 DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism 6465.Scott, Cf. & Meyer, , “The Organization of Societal Sectors,” New Institutionalism 117 ff. (cited in note 51). DiMaggio and Powell's concept of the “organizational field” is effectively identical to Scott & Meyer's concept of the “societal sector,” and most institutional theorists treat the two terms as virtually synonymous.Google Scholar

80 DiMaggio & Powell, “Iron Cage Revisited,” New Institutionalism 65 (cited in note 30).Google Scholar

81 See, e. g., Joseph R. Grodin, In Pursuit of Justice: Reflections of a State Supreme Court Justice (Berkeley: University of California Press, 1989) (“Grodin, In Pursuit of Justice”); Llewellyn, Karl N., “The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method,” 49 Yale L. J. 1355–400 (1940); id., “What Price Contract? An Essay in Perspective,”in Lawrence M. Friedman & Stewart Macaulay, eds., Law and the Behavioral Sciences (2d ed. Indianapolis: Bobbs-Merrill, 1977).CrossRefGoogle Scholar

82 Peter Harris, Cf., “Ecology and Culture in the Communication or Precedent among State Supreme Courts, 1870–1970,” 19 Law & Soc'y Rev' 449 (1985).Google Scholar

83 Jepperson, & Meyer, , “Public Order,” New Institutionalism.Google Scholar

84 See, e. g., Elizabeth Heger Boyle, “Lawyers, Litigants, Legislators: Explaining Crossnational Variation in Legal Activity” (presented at American Sociological Association annual meeting, Washington, D. C., 1995).Google Scholar

85 But see Walter W. Powell, “Expanding the Scope of Institutional Analysis,” New Institutionalism; DiMaggio, “Constructing an Organizational Field,” and Brint & Karabel, “Institutional Origins and Transformations,” New Institutionalism (both cited in note 31); and Brint & Karabel, Diverted Dream (also cited in note 31).Google Scholar

86 Friedland & Alford, “Bringing Society Back In,” New Institutionalism (cited in note 37).Google Scholar

87 Readers who doubt the role of competing institutional logics in legal history might wish to consider the following litany from Friedland and Alford:Google Scholar

Some of the most important struggles between groups, organizations and classes are over the appropriate relationships between institutions, and by which institutional logic different activities should be regulated…. Are families, churches or states to control education? Should reproduction be regulated by state, family or church?… Does equal protection apply to competition in the labor market?… Do the rights of citizenship apply to the economy or do those of the market apply to the state?… Although these struggles are acted out by groups and organizations, their consequences alter the interinstitutional relations constituting a society.Google Scholar

Friedland & Alford, “Bringing Society Back In,” New Institutionalism 256 (cited in note 37).Google Scholar

88 DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism 67.Google Scholar

89 Richard Scott, W., “Unpacking Institutional Arguments,” New Institutionalism 175.Google Scholar

90 Fligstein, “Structural Transformation of American Industry,” New Institutionalism 314 (cited in note 31).Google Scholar

91 Clune, 69 Iowa L. Rev.; Hawkins, Environment and Enforcement (both cited in note 49).Google Scholar

92 Karl E. Weick, The Social Psychology of Organizing (Reading, Mass.: Addison-Wesley, 1979) (“Weick, Social Psychology of Organizing”).Google Scholar

93 See, e. g., Vicki Eaton Baier, James G. March, & Harald Saetren, “Implementation and Ambiguity,”in James March, ed., Decisions and Organizations (Oxford: Basil Blackwell, 1988) (“Baier et al., ‘Implementation“’); Scheid-Cook, Teresa L., “Organizational Enactments and Conformity to Environmental Prescriptions,” 45 Human Relations 537 (1992).Google Scholar

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96 Kagan, Robert A. & Rosen, Robert E., “On the Social Significance of Large Law Firm Practice,” 37 Stan. L. Rev. 399 (1985); Ellickson, Robert C., “Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County,” 38 Stan. L. Rev. 623 (1986).Google Scholar

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101 See, e. g., Falk Moore, Sally, “Law & Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study,” 7 Law & Soc'y Rev. 719 (1973); Massell, Gregory, “Law as an Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central Asia,” 2 Law & Soc'y Rev. 179 (1969).Google Scholar

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106 Cohen, Michael D., March, James G., & Olsen, John P., “A Garbage Can Model of Organizational Choice,” 1 Admin. Sci. Q. 1 (1972).Google Scholar

107 Richard M. Cyert & James G. March, A Behavioral Theory of the Firm (Englewood Cliffs, N. J.: Prentice-Hall, 1963).Google Scholar

108 DiMaggio, & Powell, , “Iron Cage Revisited,” New Institutionalism.Google Scholar

109 See, e. g., Jepperson, & Meyer, , “Public Order,” New Institutionalism 227 (cited in note 38) (“In sociological analyses, the term power is commonly used to refer to authority that the analyst wishes to delegitimate”); see also Friedland, & Alford, , “Bringing Society Back In,” New Institutionalism 242 ff. (cited in note 37).Google Scholar

110 Fligstein, , “Structural Transformation of American Industry,” New Institutionalism 321 (cited in note 31).Google Scholar

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112 Indeed, one plausible way to understand ambiguous statutes is as devices for over coming legislative contention by implicitly allowing each side to “make a bet” on the outcome of subsequent interpretation. This technique has the political appeal of permitting the ultimate loser to plead good intentions and to decry the sorry perversion of “legislative intent.”Google Scholar

113 Hawkins, Environment and Enforcement. Google Scholar

114 Edelman, 97 Am. J. Soc. (cited in note 2).Google Scholar

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117 Fligstein, , “Structural Transformation of American Industry,” New Institutionalism 321; Ritti, R. R. & Goldner, Fred H., “Professional Pluralism in an Industrial Organization,” 16 Management Sci. 233–34 (1979).Google Scholar

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119 E. g., Galanter, Marc, “Why the ‘Haves' Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Soc'y Rev. 95 (1974).Google Scholar

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123 Cf. Mary Douglas, How Institutions Think (Syracuse, N. Y.: Syracuse University Press, 1986).Google Scholar

124 This may be particularly true during periods of radical sociopolitical realignment, such as the break-up of the Eastern Bloc or the formation of the European Community. When society's normative order is in turmoil, the purported objectivity and universality of the law can serve as a crucial symbolic seed for reestablishing shared meanings. Disparate local communities may not agree on the content of specific legal rules; however, if they can agree that certain rules exist, and that those rules can, in theory, be comprehended and obeyed, that is a start.Google Scholar

125 Mark C. Suchman, “Untrashing the Garbage Can: The Case of the Common Law” (presented at Stanford Conference on Organizations at Asilomar, Pacific Grove, Cal., 1990).Google Scholar

126 Galanter, 9 Law & Soc'y Rev.; id., “Case Congregations and Their Careers,” 24 Law & Soc'y Rev. 371–95 (1990).Google Scholar

127 Grodin, In Pursuit of Justice (cited in note 81).Google Scholar

128 Eugene D. Genovese, Roll Jordan Roll (New York: Pantheon Books, 1976); Tyler & Lind, Social Psychology of Procedural Justice (cited in note 38).Google Scholar

129 Cf. Weick, Social Psychology of Organizing (cited in note 92).Google Scholar

130 Edelman et al., 26 Law & Soc'y Rev. (cited in note 95).Google Scholar

131 Even when courts independently evaluate a law, they often base their assessment on the prior history of regulatory action (e. g., administrative “letter rulings”)–a history which may, itself, reflect constructions of law negotiated between regulators and members the regulated industry.Google Scholar

132 See, e. g., Suchman, “On Advice of Counsel” (cite in note 3); Ryken Gratter, “Coalition and Conference: Social Networks and the Structuration of an Organizational Field” (Dep't of Sociology, Louisiana State University, 1995).Google Scholar

133 See, e. g., DiMaggio, “Constructing an Organizational Field,” New Institutionalism, Brint & Karabel, “Institutional Origins and Transformations,” New Institutionlism, and Galaskiewicz, “Making Corporate Actors Accountable,” New Institutionalism (all cited in note 31).Google Scholar

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