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

  • Michael McCann


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

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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 Mobilization (Chicago: University of Chicago Press, 1994).

4. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: 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 sections on methods and on social change for discussion of these points.

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: Implications for a ‘New Institutionalism,’” 6 Stud. Am. Pol. Devel. 1 (1992). See also Bohman, New Philosophy, and Pitkin, Wittgenstein.

10. Pitkin, Wittgenstein 256.

11. Rosenberg, like many behavioralists, does address issues of how citizen attitudes, values, 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).

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 Modern 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 direction 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).

17. See Charles Taylor, “Interpretation and the Sciences of Man,” in Rabinow & Sullivan, 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, “Interpretive Sociolegal Research,” 15 Law & 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. Kearns, “Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life,” in A. Sarat & T. R. Kearns, eds., Law in Everyday Life 21–61 (Ann Arbor: University of Michigan, 1993) (“Sarat & Kearns, ‘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).

20. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago 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 between 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 & Kearns, “Beyond the Great Divide” (cited in note 17).

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.

27. My interpretive approach does not easily facilitate research replication and verification 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).

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”).

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. 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).

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 Movement (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 & Soc'y Rev. (cited in note 16).

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.”

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.

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 improving on, my general framework are in progress as I write.

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

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, “Subversive 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 stimulated 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).

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 possibilistic 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.” However, 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 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.

49. For examples of other interpretive, post-positivist works that utilize quantitative statistical 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 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 Science 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.

54. My argument here shifts more to contrasting my approach with that of Rosenberg's specific argument in The Hollow 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.

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 estimation of conduct or of its regulators.” Galanter, “Radiating Effects” at 124 (cited in note 31).

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).


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