Introduction

COVID-19 and the subsequent initiatives put in place to suppress the virus are predicted to have a negative impact on gender equality in both the immediate and medium-long term. There has already been a wealth of research that, on the one hand, points to women being more likely to endorse and be compliant with social distancing measures put in place to suppress the COVID-19 virus since late March 2020 (Galasso et al, 2020; Carreras et al, 2022). But on the other, there is also evidence of how the social distancing measures themselves are damaging for women. Namely, how nationwide ‘lockdowns’ have exacerbated existing gender disparities in caring, with women more likely to pick up home learning and caring to fill the gap of physically closed educational and childcare establishments, and with informal grandparental care strongly discouraged. Thus, the very social distancing measures that women endorse have impacted women negatively more than men, and have led to increased gender inequality, both intra-household and in the labour market, with women being more likely to have been made unemployed or furloughed (ONS, 2021; Wielgoszewska et al, 2021). Work has been undertaken to understand why women are more compliant than men. It suggests that dispositions that existed prior to the pandemic have increased COVID-19 compliance, such as women tending to be more rule-compliant (Tom and Granie 2011; Grosch and Rau 2016) or risk averse (Carreras et al 2022). It has also shown that COVID-19-specific factors explain women’s increased propensity to be COVID-19 compliant, such as women being more likely than men to see COVID-19 as a serious health problem (Galasso et al, 2020).

What these studies overlook, however, is how compliance to COVID-19 restrictions can actually be challenging for women, precisely because of their caring responsibilities, given that ‘the regulations and guidance assumed that households were separate units and ignored the interdependencies which exist between households and between individuals and wider society’ (Gulland, 2020: 329). Writing prior to the pandemic, Bowlby et al underscored the potential for ‘individual stress or societal stress’ to heavily disrupt existing caring arrangements (Bowlby et al, 2010: 1).

Introduction

Public understanding of the risks posed by COVID-19 understandably has focused squarely on health and mortality. As government officials throughout the UK during the first few months of the crisis offered daily hospitalization and death counts, minds inevitably concentrated on the medical risks of COVID-19. Yet the subject of this book is the social costs that will also come in the wake of the pandemic: problems of social disadvantage and suffering that will be less visible – perhaps less compelling in the public imagination – than the primary health impacts. How might law matter to such social problems? What role can law play in the alleviation of this social suffering?

When answering such questions, it is tempting to frame the discussion purely in terms of what government, Parliament or the courts might do to alleviate suffering. The image of law here is one where it has a formal status: enacted through Parliament, interpreted and developed in the courts, and enforced by administration. Equally, the understanding of law's relationship to society is primarily a ‘top-down’ instrumental one: law as a tool of governance to bring about change in society. There is much to commend this way of thinking about law and society. It captures a great deal of what lawyers and social scientists study when exploring law's potential to improve society and the actual impact of law on society. However, to understand the role of law in the response to social suffering fully, we must make two basic adjustments to this familiar way of thinking about law in society.

First, we must recognize that law is not only an instrument of governance but is also a means of challenging the ways in which we are governed. The rule of law, though a much-contested term, speaks of the basic idea that government is constitutionally constrained in what it might do. The familiar contrast between the rule of law and arbitrary action highlights the role of law in holding government to account and reversing abuses of power.

Although Law and Society has matured as a field, many scholars remain driven by curiosity to undertake “exploratory” projects, seeking to open up the world of practices in varied settings for legal interaction. Environment and Enforcement was written on particular new ground, at a time when “regulation” – now, Keith Hawkins notes, something of “an orthodoxy” in sociolegal studies – was just starting to receive scholars' attention, particularly in Britain. In such a wide-open context, the qualities of an exploratory project are taken to the extreme, where one may lack both theoretical touchstones and specific fieldwork models to build on.

Participant observation can be particularly well suited to revealing the unknown. When Keith Hawkins was presented with the opportunity to undertake the empirical study of environmental enforcement, he had already been converted to qualitative fieldwork for the kinds of knowledge it produced. His background in criminology in an oddly helpful way set up Hawkins to undertake the “anthropological” frame of mind: to assume the veneer of the ignorant but interested and innocent outsider. Unlike Robert Kagans project on Regulatory Justice (see Chapter 3), Hawkins was not a “participant” in the literal sense but rather an observer who would spend months observing the routines of regulatory encounters.

Lacking a clear expectation for what one might find in the field is not the same as being unguided by a clear objective. Hawkins's first reflections – about how he arrived at his project after a decade of interest in other legal topics – drives home the recognition of important, general questions at the heart of Law and Society research.

Luck, the old saying goes, is “opportunity meets preparedness.” Many veteran scholars attest to the importance of luck in research projects and the longer arc of their careers, but the maxim reminds us that the researcher can set up for lucky events by being ready to recognize and seize opportunities when they present themselves. Regulatory Justice, Robert Kagan's dissertation and first book, began in such a moment. The spark of interest, generated by a television news item, and Kagan's rapid response to get into the field, do not match the process laid out in textbooks on research methods. For a start, as he describes it, the questions animating the project would remain latent while he rode the wave of activity in a newly created regulatory agency.

Yet the development of Kagan's project, as much as it may comfort those who cannot see the path forward in a project, is also instructive about the little things one can do to create a project from a kernel of curiosity: formulating an instinct about the gaps in existing scholarship, making use of every available resource and connection, being prepared to take risks, and investing in the project in the form of habits of diligence and care. Although Kagan had some kinds of resources – that is, the preparedness – not possessed by many students of Law and Society, including prior experience as a litigator, the general suggestion may stand: opportunities abound for the enterprising scholar to observe the law in action.

In the past two decades, continuing the quest to understand how law “really works,” Law and Society scholars attached increasing significance to the dialogues and narratives of people involved in disputes or people experiencing “the law” in their lives. The emphasis on language and discourse has been shared by scholars coming from backgrounds in political science, sociology, and law, as featured in the work of Sarat and Felstiner (see Chapter 17) and Ewick and Silbey (see Chapter 19). Conley and O'Barr, the team perhaps most identified with the study of legal language, reached the subject through linguistics and anthropology after their own idiosyncratic path to collaboration. This interview highlights some of the differences of emphasis produced by the disciplinary toolbox, though many concerns – such as observing and listening in as nonintrusive a way as possible – are shared in common.

Perhaps not surprising for scholars interested in conversations (albeit of a legal variety), their attention to the quality of conversations is manifest in the work itself. For one, their approach to squeezing meanings from language involves subjecting texts to dialogue itself, using discussion as an analytical tool. Second, their desire to speak across disciplines and to those outside of academia, especially, drives a passion for the words' use in reporting their research. Can a sophisticated understanding of how language and culture shape the legal world be rendered simple enough to reach a wide audience?

For researchers conducting interviews, many different kinds of research subjects exist. The common distinction between “elite” interviewees and their opposites – “mass publics,” perhaps – captures some of the difference. Relatively elite subjects, such as corporate lawyers or court officials, often possess inside knowledge that you hope to acquire or have a privileged vantage point. Often coming from a limited pool of people who share their perspective, each interviewee is valuable and must be approached with care. Yet many elite individuals nevertheless can be relative unknowns beyond the narrow confines of their field. Many Law and Society projects involve elites of this variety – see, for example, McBarnet (Chapter 14) or Dezalay and Garth (Chapter 18). The extreme end of the “elite” continuum may well be its own category, however: those who by their socioeconomic standing or unique political position are extraordinarily difficult to access, challenging to interview, or particularly sensitive subjects. Interviewing presidents, ministers, and justices – and getting useful data – is a challenge unlike any other.

Alan Paterson's doctoral dissertation, later published as The Law Lords, brought this student of jurisprudence face-to-face with fourteen of the judges who sat in the highest appellate body in the United Kingdom and forty-five leading barristers and judges from the lower courts. At a time of great deference to the judiciary, and in light of the traditional reserve of the senior judiciary, it was a remarkable achievement.

Perhaps the greatest frontier for the study of law in society is the global. The production and maintenance of “law” in its global dimensions has generated new forms of interaction, interdependence, and international institution building. Students and scholars seeking fodder for exciting new projects are drawn to a topic as ripe and intriguing as globalization. History reminds us, however, that excursions into frontiers are frequently difficult and dangerous. Here the challenges are not of life and limb, of course, but of resources and intellectual energy. Are you able to locate all of the pieces of the puzzle that contribute to the “global” pattern? Can you find the time and money necessary to get you where you need to go? Then, can you bring theoretical meaning or order out of an evolving and complicated mess of interaction?

While studying even a single field or institution poses challenges enough (see, respectively, Dezalay and Garth, Chapter 18, and John Hagan, Chapter 22), what must empirically minded scholars do to capture a portrait of globalization processes across many substantive areas? Some of the answer provided by John Braithwaite and Peter Drahos in their monumental volume, Global Business Regulation, deserves a mixture of respect, appreciation, and trepidation: ten years, over five hundred interviews, and a final text 629 pages in length. Yet, in other respects, their experience provides some reassurances. English was nearly universal, for example, and much of the story of globalization remained concentrated in relatively few places – the power centers of the United States and Europe. As they explore in this interview, the perpetual issue of access may have been made easier by their world travel.

Law and Society research, born in the 1960s and a successor to legal realism, has roots in a tradition of “engaged” scholarship, connected to progressive politics and the concerns of marginalized people. But with one foot in the social sciences, there remain disagreements about the position scholars should have in the field, either in advocating for change or living lives of engagement. Certainly, explicit political commitments can complicate research in a number of ways, such as through bias that can affect the questions asked or the answers reached. On the other hand, political commitments can strengthen the researcher's position, providing enthusiasm, energy, and access.

Michael McCann's research into pay equity mobilization and litigation brought him to the heart of that problem. By his choice of topics, Rights at Work reflects his prior investment in union politics. Once in the field, he was drawn into a more active role than most textbooks on research methods – imparting a veneer of neutrality – describe. Yet the sympathetic academic does not have an uncontested position. In this interview McCann reflects on how race and gender affected his interactions with his research subjects and with the way he framed the project as a whole. Unavoidably we must ask how the identity of the researcher might affect research projects such as this.

Even further, it invites the question of what it means to be an academic, not only as those in higher education define themselves but in what the people who are research subjects expect and ask of researchers.

Where is law most “in action” in society? Very often, it seems, where it is difficult if not impossible to observe directly. Courtrooms can be observed, though private offices can hide bargaining and discretion. Judges may provide written opinions, but their psychology remains a black box. And so it goes. For scholars of the legal profession, a significant obstacle to penetrating law's power has been the office door, behind which lawyers and clients engage in dialogue, bound by the claim of “lawyer–client privilege.” But all the clues received from aggregate data to anecdotal evidence, not to mention academic instinct, drove researchers to break down these barriers.

Bill Felstiner and Austin Sarat, among those who succeeded in challenging the bound-aries, found a wealth of data in the interactions of divorce lawyers and their clients. On the path to Divorce Lawyers and Their Clients, Felstiner and Sarat confronted the scientist's paradox that observation itself may change the behavior of the observed – and the subsequent problem that the publication further exposes to embarrassment or critique what was once hidden. In a number of ways, this research project could have been stifled by obedience to the most formal or cautious standards for research ethics. It may be easy to conclude that the lessons of this book validate their judgments, but it offers an opportunity to consider whether the ends of observational research into legal phenomenon always justify the means.

Court systems can be an imposing maze. They are institutions meant to communicate the weight of public authority, but they contain all the frailties of the humans who inhabit them. Courts speak of the enduring principles of law and justice, yet they hide deep corners of discretion. Some version of “court” is found everywhere students of law look, but the global ubiquity of courts belies the need to understand the local, contingent, and contextual. For Law and Society scholars, “the court” – not just the room, but the organization that supports it – has been an essential unit of analysis. To understand its significance has required getting inside the maze to chart its work, its people, its norms, and its impact. How can a scholar comprehend how the court works “in action”?

One of the most enduring attempts to understand a court organization, Malcolm Feeley's in-depth look at a New Haven, Connecticut, court, began down the road in New York City. The groundwork was being laid for a three-city comparative study with two collaborators, the aim of which was to examine Boston, New York City, and Philadelphia. It was an exciting time – in the shadow of Watergate and political trials in the big cities. Indeed, too exciting: prosecutors and judges were hostile and sceptical to researchers, who might as well have been one of the new breed of journalists seeking to expose corruption. Trying to get access to prosecutors' files to construct a portrait of their work – even a quantitative one presenting aggregate data – went nowhere.

The landmark study of the Chicago bar by Heinz and Laumann may project the appearance of having been a deliberate, rigorous, “scientific” project – one that follows a logical scheme and presents data accordingly. Students of the field may take away that perception, in particular, for how the book marshals and presents a raft of quantitative data. Unquestionably, Chicago Lawyers, together with a follow-up study conducted two decades later – published as Urban Lawyers (2005, with Robert Nelson and Rebecca Sandefur) – is an achievement in the sociology of law, possessing both rigor and sophistication in copious amounts.

But what figures and tables obscure, and what Heinz and Laumann are quick to reveal, is the process by which meaningful quantitative analysis is generated. “Quantification” is not a method itself, but an analytical result of a process that requires intuition and reflection. Thus, their collaboration and use of others in their work can be seen as a vital support structure for the analytical as well as the managerial side of a large project, and the qualitative research they describe plays a key role in support of the survey-based data collection employed in these projects. Even with the benefits of time, institutional support, highly qualified teams, and a multiplicity of perspectives, the blinkers of the moment constrain and shape the research process. The limits manifest themselves here, with a twenty-year follow-up in the wings, as a form of path dependence – recognizing mistakes but living with them for purposes of comparability. The work may project an aura, but it requires a form of humility.

It may be Panglossian to say that everything works out for the best, but you could forgive Patricia Ewick and Susan Silbey for taking that view. The well-regarded book, The Common Place of Law, did not begin as their project or even the kind of project they might have crafted. Living in Massachusetts – and with families at home – left on their own, they would not have designed a project involving extensive travel to New Jersey. Substantively the project pushed them in new directions. But the invitation to have a hand in this project, and then the necessity of seeing it through, put Ewick and Silbey at the center of currents in the field, a place to make a contribution. Even the setting – the racially diverse, understudied mid-Atlantic state – turned out to be fortuitous.

Their reflections on The Common Place of Law suggest comparisons with any number of studies, from the deep ethnographic approaches of David Engel, Carol Greenhouse, and Sally Merry (Chapter 8, 10, and 12, respectively) to the survey methods of Tom Tyler and Hazel Genn (Chapters 13 and 20, respectively). What level of understanding can we draw from each method? What are the limits of each? What questions remain unanswered today, and what strategies will be necessary to answer them?

Collaborations can be an enjoyable, as well as a productive, way to approach scholarship, as made clear in many other chapters of this book. A common approach to collaboration, especially in an interdisciplinary field such as Law and Society, is to find your complement, someone who possesses a disciplinary or legal speciality that you need.

“Have tape recorder, will travel” – it might almost be stamped on the calling card of the qualitative social scientist. The open-ended interview, distinguished from a survey with “closed” questions requiring a person to choose an answer, is one of the most powerful tools in Law and Society research. Interviewing has a lot to offer, including the ability to tailor questions to small but potentially important differences among research subjects and to probe interesting avenues that are discovered along the way. Interviewing also allows one to discover worlds that may forever be closed to direct observation, allowing one to hear people report their perspectives and describe their behavior.

Successful qualitative interviewing requires a degree of preparation that allows the researcher to explore, conversationally, topics of core concern. Yet researchers who remain open to pursuing new avenues that serendipitously arise in interviews can discover whole new worlds. For more than two decades, Doreen McBarnet has used extensive interviewing to capture how law and business work in action, understood through the details of complex banking, securities, tax, and bankruptcy transactions. Focusing on corporate tax practices in the United Kingdom, “Whiter than White Collar Crime” reveals the kinds of discoveries one can make when successfully balancing detailed preparation with curiosity.

The complex arenas of corporate law, such as the one discussed in this article, remain ripe for exploration by Law and Society scholars. The trail of inquiry brought McBarnet down the road less traveled after the publication of Conviction: Law, the State and the Construction of Justice (1981), a well-regarded study in the criminological tradition.

The raison d'être of the Law and Society movement has been the shared appreciation of interdisciplinarity – the recognition that one has much to learn from scholars of other disciplinary backgrounds who unite around a common interest in “law.” Though numerically a smaller presence in the field of sociolegal studies, for over a century psychologists have contributed much to our understanding of legal phenomena, from police discretion to jury decision making, from memory to insanity. More broadly, the turn toward behavioralism in the 1950s inspired others, such as political scientists, to employ psychological models and methods in the study of those – from judges to citizens – touched by law.

In this interview, Tom Tyler points to the cross-disciplinary conversation that ties his undergraduate experience in the 1960s to a decades-long research agenda into the legitimacy of law. What methodological challenges lie at the core of the psychologist's approach to studying law? To some, psychology's distinctive place in the social scientific study of law lies in its common use of experimental methods. However, Tom Tyler's choice of large-scale surveying for Why People Obey the Law puts him squarely “in the field” alongside all who seek to understand people in their relation to law, whether or not they do so quantitatively (see also Genn, Chapter 20). It is apparent, rather, that Tyler's need to theorize and operationalize Law and Society questions before collecting most of the data places a particular premium on planning and attention to detail. The fieldwork cannot generalize the theory but must follow it.