CONSEQUENCES: THE IMPACT OF LAW AND ITS COMPLEXITY by W. A. Bogart. Toronto: University of Toronto Press,
2002. 405 pp. Cloth $95.00. ISBN: 0-8020-3599-X. Paper $29.95. . ISBN: 0-8020-8456-7.
Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky.
Because it covers much research bordering on the areas of our main interests, CONSEQUENCES is a useful book for the political scientist readers of the LPBR. Indeed, it is more a book about the consequences of public policies in general. Bogart pays no particular attention to the results of major court cases or litigation in general. The book is also useful because the author, a law professor at the University of Windsor, discusses considerable research about the impact of law in
Western Europe and Canada, a literature to which we are seldom exposed. Thus, CONSEQUENCES complements research on what most LPBR readers focus.
CONSEQUENCES lacks a strong overall theme. The first half contains a broad discussion about both the complexities of law and the complexities of assessing the law’s impact. Law is about shaping human behavior, Bogart tells us, and there are three main methods by which it accomplishes this: deterrence through sanctions; rewards for compliance; and persuasion enhanced by a sense of the law’s legitimacy. Bogart argues that sanctions have a central but limited effect and believes that we should focus more on the latter two methods. We should also design out problems when we can (e. g., airbags instead of seat belts or, more grandly, eliminating the poverty stricken environments that produce violent criminal behavior).
There is a nice discussion of the science (but not the methodology) of assessing law’s impact. Following this, Bogart presents a (too) brief overview of the philosophy of determining causality in the study of law’s consequences. Good legal impact research, he argues, must steer between the lures of “positivism” (sole reliance on the independent/dependent variables model for measuring causality) and “interpretivism” (a constructivist, qualitative approach to how law is enmeshed with its societal environment). Positivism gives us bits and pieces of causality, but it cannot really address the big picture. Interpretivism approaches the big picture, but without sufficient empirical grounding the picture is at best blurred and at worst badly distorted. Bogart offers Gerald Rosenberg’s THE HOLLOW HOPE (1991) as a successful combination of the two approaches.
The first half concludes with a discussion of six “ideas” about the impact of law. The first four are: (1) instrumentalism, the view that the law is autonomous and can produce direct consequences; (2) law in concert with social and political forces, the law as norm and trend reinforcement; (3) law reconstituting social and political
relationships–law producing societal change; (4) the ineffectiveness of law, the view that much law impedes societal efficiency and functioning, often producing
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unintended consequences that are worse than the original problem. Five and six are not broad ideas about impact, but caveats to understanding the first four. Indeed, Bogart labels them “American exceptionalism.” One is national styles of regulation, i.e., that ideas 1-4 above are dependent on cultural differences across nations. The other is the impact of litigation, i.e., that the courts can be used, especially in the U. S., to produce or shape many important policies.
The latter part of CONSEQUENCES focuses on law’s impact in five policy areas: punishment (especially capital punishment), smoking, the environment, pornography, and racial discrimination. Relying largely on public policy and law and economics literature, Bogart reviews arguments for and against policies or proposals in these areas and examines the sometimes thin and contradictory research findings about actual consequences. He gives us excellent impact summaries for both smoking and pornography policies, chapters that would make useful reading assignments in undergraduate public policy courses. However,
environmental policies are too separate and complex to be captured neatly in a 25 page chapter. Also, consequential syntheses of proposals and policies intended to alleviate racial discrimination in the U. S. are numerous enough to render Bogart’s contribution only of competitive utility to LPBR readers.
Bogart is offended by capital punishment and not too fond of the idea of punishment at all, so his analysis here falls a bit short of a polemic. He tells us a dozen times if he tells us once that the U. S. is the only Western nation that allows capital punishment and yet has more murders per capita than any other nation. He stresses that
capital punishment has no deterrent effect. No doubt true, but no serious scholar argues otherwise. Anyone who does not understand that the primary motivation behind the death penalty is vengeance has spent most of his or her life in a monastery. Beyond this, however, with only about 40 executions annually, the importance of capital punishment is largely symbolic and not very consequential. Also, Bogart is offended by the high rate of imprisonment in the U. S. and continually
reminds us that the American rate is the second highest in the world, behind only Russia. In other places, the author presents similar admonitions about the prevalence of guns in the U. S. These repeated reminders detract from analyses that are otherwise fairly balanced.
As noted, Bogart writes only occasionally about the impact of judicial decisions, discussing perhaps less than a dozen with a third being Canadian. However, speaking of Canadian decisions, there is an excellent summary of the impact of R. V. BUTLER (1992), the Supreme Court case which adopted the Catherine MacKinnon-Andrea Dworkin perspective that much pornography can be banned because it suggests a subordinate status for women. Bogart points out the irony that BUTLER’s actual impact was a heightened enforcement of federal pornography laws against material focusing on gay and lesbian sex, but little reduction in the availability of standard heterosexual pornography.
Nonetheless, except for Rosenberg (1991), there is virtually no coverage of the judicial impact research that LPBR readers perform or read about. Of course--to put in a shameless plug–the American judicial impact literature is summarized in Canon and Johnson (1999), so CONSEQUENCES is complementary. Perhaps this research is too positivist to warrant Bogart’s attention. Even so, the judicial impact literature is reasonably rich in findings so it seems a
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shame for a book seemingly as ambitious as CONSEQUENCES to ignore it.
Even more problematic, Bogart does not directly discuss the theories of impact developed and tested over the last four decades by judicial impact researchers, e. g., legitimacy, cognitive dissonance, imperfect communication, organizational resistance, principal-agent. He does, of course, occasionally mention legitimacy, organizational routines, and communication problems as affecting responses to law, but the author does not recognize them as overarching explanatory theories. Indeed, CONSEQUENCES shows little recognition of the role of mid-level theories in guiding research about law’s impact. This is disappointing because
judicial impact theories--often borrowed from other disciplines--are, with occasional modifications, applicable to the consequences of law as well as litigation.
Going beyond judicial impact, American political scientists have produced many studies about the consequences of public policies. But this output is hardly covered in CONSEQUENCES. It is not that because as a Canadian, Bogart is unfamiliar with American scholarship. He notes numerous American law review and economics journal articles. Many of the writings in economics and some in law are empirically grounded or set in rational choice theory. Although political science
can match and likely exceed these disciplines in public policy analysis, Bogart seems unfamiliar with or not respectful of its accomplishments.
In sum, CONSEQUENCES is useful for exposing us to research with which we have less familiarity, but that nonetheless relates to research that interests us. Unfortunately, we have to make the connections ourselves.
Canon, Bradley C. and Charles A. Johnson. 1999. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT, 2nd ed. Washington: CQ Press.
R .V. BUTLER, 1 S.C.R. 492 (1992).
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Copyright 2002 by the author, Bradley C. Canon.