Dobbin on the weakness of courts
Following up on my earlier post about the inability of courts to create social change, I discovered that Frank Dobbin makes a similar argument in his 2009 book, Inventing Equal Opportunity. Dobbin’s general point is that the U.S. state is weak and fragmented, which creates opportunities for professionals and other entrepreneurial actors to design their own institutional responses to legal mandates. His case is based around the development of equal opportunity measures created by networks of personnel experts. The experts were hired by corporations to protect them from violating civil rights laws, but the laws themselves were not clear in specifying how they expected companies to implement non-discrimination programs or even about what discrimination really was. This ambiguity created a space in which personnel professionals could engineer their own equal opportunity programs and define the appearance of discrimination.
Rather than being a strong arm of enforcement that coerced firms into adopting equal opportunity programs, the courts actually picked up cues from the corporations about how civil rights laws should be interpreted.
[O]ur fascination with judicial decisions led to a misreading of the role of the courts. Seeing that may companies have sexual harassment policies and procedures that are in line with Supreme Court guidelines, for instance, many conclude that the Court’s rulings were successful. In fact, human resources experts devised guidelines for corporations, and then the court vetted them. It was corporations that guided the judiciary, no the other way around. Congress and federal bureaucrats also took their cues from employers, approving some innovations and overturning others. For the most part, they went along with what leading employers wee doing, though they rarely ruled that any one innovation, or any concoction, would fully protect employers. This was the case in part because, while the courts were the final arbiter, they did not have the authority to make law (12).
Does this mean that courts are completely lacking influence? No, obviously companies listened to their HR professionals because they didn’t want to be punished for violating the new civil rights laws, and it was this general fear of being punished that spurred the spread of equal opportunity programs. But the court were also not active in promoting a particular interpretation of the law from the beginning. They figured out what the right response to the law was by watching the emerging consensus of best practices among the companies themselves. The courts validated equal opportunity law, rather than prescribing it.
[…] Mets once said, but continuing with last post’s legal theme it can apply to the law as well. Employment discrimination law, more specifically, where businesses instituting programs to avoid being sued don’t know what […]
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Does anybody here know how to play this game? « Entitled to an Opinion
June 30, 2011 at 3:17 am
In other words, human resource diversity staffers got to design the law? No wonder, the diversity industry continues to thrive …
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Steve Sailer
July 1, 2011 at 11:05 pm
[…] Inventing Inequality by Frank Dobbins […]
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books in review: 2010-2011 « orgtheory.net
August 18, 2011 at 3:47 am