by Charles R. Epp. Chicago & London: University of Chicago Press, 2010. 368pp. Cloth $72.00. ISBN: 9780226211640. Paper: $22.90. ISBN: 9780226211657.
Reviewed by Laura J. Hatcher, Department of Political Science, Southern Illinois University. Email: hatcher [at] siu.edu.
As a professor who teaches administrative law and politics and is interested in the intersection of administrative law and constitutional litigation, I am always in search of theoretically-engaging and empirically grounded research for my upper division seniors and graduate students that is also readable. Charles Epp has produced such a work. In lucid prose, Epp develops an argument for understanding administrative change that takes into account pressures from within bureaucracies as well as from outside them. With a combination of interviews, content analysis of professional publications and court cases, as well as original survey data, Epp also gives his readers an excellent example of multimethod research that is driven by the question rather than a specific methodology. Through a close comparison of three case studies – policing, sexual harassment, and playground safety – Epp demonstrates that dynamic interactions among bureaucrats and activist reformers produced a framework for accountability that both proliferated throughout the country and has remained surprisingly resilient. In short, this is a book that is a must-read not only for administrative law and public administration scholars, but also for anyone interested in organizational change, social change, and litigation as a political process.
Many of Epp’s early pages are devoted to laying out a conceptual framework that provides an explanation of bureaucratic change over the course of the last 25 years. He introduces us to a policy framework he calls “legalized accountability” (p.2). He argues that beginning in the late 1970’s, reform-minded professionals and activists pressed for transformation in policy arenas where bureaucrats resisted (or sometimes simply refused) reform-oriented change. “Legalized accountability,” according to Epp, was a “law-styled attempt to bring bureaucratic practice in line with emerging legal norms” (p.3). Reformers wanted to see bureaucracies do more than simply adopt reforms on paper, and pushed for deeper implementation processes that included “written rules, formal systems of training, and internal systems of oversight to assess compliance with rules” (ibid.). These rules were not required through statute or legal decisions, but rather were adopted after the managerial professions sought ways to resolve conflicting norms within the professions themselves in response to the pressures from activists and reformers. Epp provides an analysis of how legalized accountability developed in the complex dynamics that developed between activists from outside the agencies and reform-minded bureaucrats within them. [*108]
According to Epp, pressures on bureaucracies to reform various practices came to a “critical juncture” in the late 1970’s and early 1980’s when “growing litigation threats against agencies and an emerging professional reform campaign within them fused, yielding an explosion in the fear of liability among professional practitioners” (p.3). One of Epp’s most intriguing findings is that the threat of liability (rather than the actual finding of liability by a court) became a lever to push for change among professionals seeking a mechanism to reform their agencies. Again and again in his case studies, we see professionals in bureaucratic organizations responding to the possibility of litigation as a threat to their professionalism, not merely as a financial threat. The possible embarrassment that a negative finding by a court would bring to their agency proved, according to Epp, to be more important than the potential financial loss. As Epp explains, “…bureaucratic reformers on the inside of the system – ostensibly the targets of liability – enthusiastically joined with external activists in using the threat of liability as a lever of reform” (p.3).
devotes four of his 10 chapters to policing reform in the U.S., and includes a fifth chapter that provides a comparison of police reform in Britain. Laying out the issue and history of police corruption with meticulous detail, Epp develops an argument for understanding legalized accountability’s emergence in the context of legal changes in attitudes toward police corruption, particularly in the form of racial discrimination and excessive use of force. In explaining his case selection choices, Epp reminds us that policing is particularly important because “the police affect people’s lives almost daily like few other institutions, and police scandal and reform are key issues in the development of American public law…” (p.33). Indeed, the reader is vividly reminded of the central place policing reform played to the judicial activism of the Warren Court. Epp highlights for us that police reform is made far more difficult in the U.S. because of the decentralized nature of policing: “Unlike almost every other governing system in the world, the United States places police authority in tens of thousands of local police forces, and for a very long time neither the national government nor the state governments made much effort to regulate these local forces” (ibid.). After the Warren Court period, many scholars and activists believed that police reform would be virtually impossible. In contrast to their concerns, Epp traces what he believes was a revolution in policing reform that occurred in the 1980’s and 1990’s. He argues that, in part thanks to support of liability claims in federal courts, reform movements made up both of activists outside police departments and police professionals within individual departments were able to combine forces and press for adoption of administrative models that addressed police misconduct. These models, combined with the threat of liability, placed the responsibility to fix existing problems within police forces onto the shoulders of individual departments. In turn, this increased responsibility led to a revolution in thinking by police professionals who determined that they did, in fact, have a problem and would need to address it to maintain their professional authority and reputation. [*109]
Epp compares the U.S. and Britain in order to highlight the difference the threat of liability can make, even in contexts where widespread corruption and a desire for reform are present. Reform occurred within the U.S. context in ways that, despite major strides to correct serious problems, has not occurred as fully in the Britain. There the police force is much more centralized than in the U.S., and as Epp reminds us, has considerably broader powers to stop and search. Moreover, the British constables maintain a very high degree of independence from any other governmental agency or body. Epp tells us that “No elected body directly controls the country’s police forces” and that British law makes the constables “answerable only to ‘the law’” (p.143). The judiciary did not check policing at all until very recently, and has historically given the police broad discretion in searches and evidence collection. Such a situation lends itself to corruption, and as Epp tells us, the police force in Britain was in crisis by the end of 1980s. Making use of the work of Stuart Hall and his colleagues (1978) on the construction of moral panics, Epp moves over very familiar scholarly terrain in his description of the ways various media outlets covered growing tensions between police and racial minority populations during the economic crisis of the 1970s. Policing practices led to deep resentment among racial minority populations who believed themselves (rightly) to be targets of harassment and corrupt police practices. The early media coverage of these tensions certainly tended toward sympathy for and on behalf of the police. Such sympathy produced, perpetuated and amplified images of minorities, particularly black men, as “inherently criminal” (p.142). As the complaints grew in number and resentment grew in intensity, researchers began studying and documenting various cases of alleged harassment. These studies demonstrated that the complaints of harassing searches and discriminatory police practices were valid, and that the media’s coverage combined with certain policy responses was leading to a “moral panic” (p.142; see also Hall et al. 1978).
Eventually, police misconduct led to scandals in the prosecution of several cases in which people convicted of crimes were released by the courts because of police misconduct. Ultimately, Epp says, “[b]y the late 1980s, in sum, the British police, like their American counterparts a generation before, had compiled a record of scandal and discrimination” (p.143). These scandals led to calls for more accountability, and eventually the development of a version of the legalized accountability model. Yet, as already mentioned, while adopted to some degree, the full blown model has never been completely institutionalized in the UK. Epp’s explanation for this difference relies on the absence of the threat of liability in Britain. While the U.S. courts had invited liability claims made by activists, the British courts cut off the ability of activists to use torts to bring liability pressure on bureaucrats. At the very least, without that pressure there were fewer opportunities for reform-minded bureaucrats to lever institutional reform in the direction they wanted.
Epp’s rich descriptions and his careful analysis provide us with an impressive account of the process by which new [*110] systems of governance come into existence. In this review, I have discussed his policing case studies in some detail, but his studies of sexual harassment and playground safety bolster Epp’s claim that the threat of tort liability provided the key ingredient for the spread of legalized accountability and its deep institutionalization as an administrative model. What is less clear, at least to this reader, is why any form of legalized accountability developed in the UK without liability as a lever. Epp’s argument in the beginning of the book is that the threat of liability was a mechanism that professionals within bureaucracies could use to push for change. In Britain, this mechanism disappears early in the reform process. Yet, we do see a form of legalized accountability (albeit much weaker) take shape. The key to understanding this tension in the book, I think, is the theory of law that Epp finally turns to in his conclusion: “law [emerges] out of social relationships rather than imposed from above and, at the same time…law [emerges] from elites’ interests and power” (p.216). In Britain, perhaps, the elites had enough of an interest in maintaining legitimacy and enough power to pressure the system that some limited form of legalized accountability could emerge.
Much like many sociolegal scholars, including Michael McCann (1994) and John Brigham (1996), Epp relies heavily upon the idea that law is a constitutive force in both creating the interests of political actors and in the structure of governance. These are not his terms, though his ideas lend themselves to another body of literature that contains many of the same themes (see for example, Hunt and Wickham 1994; Merry 2001; Cooper 1998). Like these other scholars, Epp sees the constitution of governance as a highly dynamic process, and one that relies upon the relations of power as they play themselves out not only among individuals, but among individuals and institutions, and bureaucracies and other parts of government (see also, Epp, 1998). Power – in the form of demands, threats, and possible consequences, as well as more tangible resources -- is an integral part of the emergence of legalized accountability. Put another way, the tensions between administrative rules and constitutional rights – and the relationships among the people making the rules and making rights claims and other political claims – are a critical element of modern governance (McClure 1995). This is not because the institutions simply respond to pressures of various groups; rather, the institutions and agencies in them provide the practices and forms that give shape to the claims and, ultimately, change the way people think about what it means to govern or be governed. By highlighting this process and making clear the legalized framework that emerged, Epp contributes to the sociolegal literature on governance and institutional development as well as the public policy and administrative law literatures in political science.
Brigham, John.1996. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York, NY: New York University Press. [*111]
Cooper, Davina. 1998. GOVERNING OUT OF ORDER: SPACE, LAW AND THE POLITICS OF BELONGING. Rivers Oram, London and New York: New York University Press.
Epp, Charles. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.
Hall, Stuart; Chas Critcher, Tony Jefferson, John N. Carke, and Brian Roberts. 1978. POLICING THE CRISIS: MUGGING, THE STATE AND LAW AND ORDER. London: Palgrave Macmillan.
Hunt, Alan and Gary Wickham. 1994. FOUCAULT AND LAW: TOWARDS A SOCIOLOGY OF LAW AS GOVERNANCE. Sterling, VA: Pluto Press.
McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago, IL: University of Chicago Press.
McClure, Kirstie. 1995. “Taking Liberties in Foucault’s Triangle: Sovereignty, Discipline, Governmentality and the Subject of Rights,” in: IDENTITIES, POLITICS AND RIGHTS. Austin Sarat and Thomas R. Kearns (eds.). Ann Arbor: University of Michigan Press.
Merry, Sally. 2001. “Spatial Governmentality and the New Urban Social Order: Controlling Gender Violence Through Law,” AMERICAN ANTHROPOLOGIST 103(1): 16-29.
© Copyright 2011 by the author, Laura J. Hatcher.