Before you click back over to the New York Times or whatever you were reading before you got here, let me give you four good reasons to be interested in qualitative research in ELS.
Of course, we can debate any of these that you like, but here is what I think: (1) Qualitative research is the kind of theory-generating research that much quantitative research is testing; (2) Many questions about law and its influence in society can only be answered in the first instance using qualitative methods. Of course, you can operationalize them in such a way as to later test them quantitatively, but the initial understanding of various processes (I will give you examples all week) of how law works come from (a) theory or (b) qualitative research; (3) Qualitative research, when placed alongside quantitative research can teach us much more about the phenomena we study than the quantitative research alone; (4) Lot of work in law reviews right now is masquerading as “empirical qualitative research” but there is something in your gut that tells you there are problems with it. You are probably right. There is a science of qualitative research and there are standards by which we can evaluate qualitative research meaningfully. More on that later in the week.
This week, I hope we can talk/write about what makes it more or less convincing, how we evaluate the methods, and what we can learn from qualitative work that, although we may be able to quantitatively test it later, could not have been observed without the qualitative research in the first instance. Before I say too much more about the mechanics of qualitative research, I better give you some examples or you will totally lose interest.
One of the most important questions that I think we are almost all interested in (or why would we do this work) is something like, “what impact does law (broadly conceived -- could be statutory, judicial, constitutional or regulatory) have when it intervenes to affect social circumstances in whatever milieu we study?"
Today, I am going to highlight 2 excellent qualitative studies in the organizational context. Law often is used in an attempt to affect individuals’ behavior in organizations. We want executives to oversee accounting practices so that we don’t have another Enron; we want to provide incentives to individuals in organizations to refrain from discrimination; we want the police to follow certain procedures to ensure the constitutional rights of the accused; and you can name many more.
How does law work in organizations? Scholars of organizations used to suggest that the implementation of law in organizations held with it the possibility of imbuing the organization with other values (Selznick, 1969). More recently, scholars of the “new institutionalism” are less optimistic about the possibility for law translating into better substantive outcomes in organizations. Although organizations can be a good source for information about the law, new institutionalists suggest that law in organizations such as workplaces results in a bureaucratization of law whereby legal aims become co-opted, translated into business goals rather than legal mandates, limiting their effectiveness.
In her study of the Family and Medical Leave Act, Catherine R. Albiston examines what happens in the workplace when legal rights (in her case the recently provided statutory right to family and medical leave) are asserted and are in opposition to institutionalized ideas regarding what it means to be a satisfactory worker, notions about the social organization of the family and gender roles therein, as well as the institution of work itself (Albiston, “Bargaining in the Shadow of Social Institutions,” 39 Law & Society Review 11, 2005) Legal claims hardly trump competing claims. Rather, legal claims are filtered, transformed, and contested in the workplace. Albiston’s respondents (a sample of people who called a hotline and asked if they had FMLA claims) report legitimate rights claims being countered by claims about the inability of the company to function without replacing the worker requesting the leave -- it is “just business.” Albiston reports that legitimate requests for leave are met with resistance because the reason given does not comport with traditional gender/family roles (for example, when a man requests leave to be home when a baby is born or adopted). Nevertheless, Albiston also finds that workers sometimes successfully employ the norms embodied in the new law to contest institutionalized ideas about work in their negotiations over leave. While they may not get all they are legally entitled to, Albiston documents the use of law by ordinary citizens in their work organizations for satisfactory outcomes.
Albiston, conducted in-depth interviews with the people who called the legal aid hotline after they negotiated and took their leave. None of the people in her study made formal legal claims, but they used the information they had about the law to enforce their legal rights. This is tremendously important for our understanding of law’s efficacy in the workplace but the fact that the people never filed legal claims makes them very hard to study and invisible to debates about the utility of law (until her research). The types of resistance they met now could be operationalized and quantitatively tested; we could debate what the dependent variable should be (whether the employee got all they were legally entitled to; whether they were satisfied with the outcome; etc), but without this path breaking research, these issues would not be on the table for debate at all.
Another example of qualitative work on law in organizations is Carol Heimer’s study of decisions about the treatment of severely premature infants that is instructive about law in an organizational context as well in Competing Institutions. Using ethnographic research methods, Heimer and Staffen explore what happens when legal claims confront moral and professional claims in life or death decisions about preemies. Parents enjoy the legal right to make medical decisions for their children -- a right that is bolstered by the patient’s rights movement. The infants, however, enjoy certain rights which become the obligation of the professionals to ensure. Doctors, nurses, social workers, and lawyers all make competing claims to law, moral authority (parenting), medical knowledge (doctors) and a different sort of medical knowledge (nurses) in decisions about medical treatment (or stopping medical treatment) Law is not enough to determine outcome. The confluence of professional knowledge and institutional power can be determinative when mounted against some parents (poor, uneducated, perceived as “uncaring”) while other parents are able to resist, often invoking their rights. Clearly, rights do not determine the situation. Rather, they are mediated through the organization and the professionals operating within it.
This kind of research required hundreds of hours of ethnographic field work. Heimer and Staffen (her co-author of this book) were in the hospitals, gaining the trust of all of the parties involved, and ultimately were able to observe discussions in which decisions were made about care.
These are but two examples of qualitative studies of law in organizations, but they demonstrate how organizational prerogatives can compete with, filter, distort, or amplify rights claims. These subtle processes which law is intended to affect often must be studied qualitatively so that we can understand the empirical reality of law on the ground.