Table Of ContentMaking Rights Real
THE CHICAGO SERIES IN LAW AND SOCIETY
Edited by John M. Conley and Lynn Mather
Also in the series:
Lawyers on the Right: Professionalizing the Conservative Coalition
by Ann Southworth
Arguing with Tradition: The Language of Law in Hopi Tribal Court
by Justin B. Richland
Speaking of Crime: The Language of Criminal Justice
by Lawrence M. Solan and Peter M. Tiersma
Human Rights and Gender Violence: Translating International Law into Social Justice
by Sally Engle Merry
Just Words, Second Edition: Law, Language, and Power
by John M. Conley and William M. O’Barr
Distorting the Law: Politics, Media, and the Litigation Crisis
by William Haltom and Michael McCann
Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal
by John Hagan
Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities
by David M. Engel and Frank W. Munger
The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to
Transform Latin American States
by Yves Dezalay and Bryant G. Garth
Free to Die for Their Country: The Story of the Japanese American Draft Resisters in
World War II
by Eric L. Muller
Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy
by John Gilliom
Pronouncing and Persevering: Gender and the Discourses of Disputing in an African
Islamic Court
by Susan F. Hirsch
Additional series titles follow index
CHARLES R. EPP
Making Rights Real
Activists, Bureaucrats, and the Creation of
the Legalistic State
The University of Chicago Press | Chicago & London
Charles R. Epp is associate professor in the Department of Public Administration
at the University of Kansas. He is the author of The Rights Revolution: Lawyers,
Activists, and Supreme Courts in Comparative Perspective, winner of the C. Herman
Pritchett Award of the Law and Courts Section of the American Political Science
Association.
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2009 by The University of Chicago
All rights reserved. Published 2009
Printed in the United States of America
18 17 16 15 14 13 12 11 10 09 1 2 3 4 5
Library of Congress Cataloging-in-Publication Data
Epp, Charles R.
Making rights real : activists, bureaucrats, and the creation of the legalistic
state / Charles R. Epp.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-226-21164-0 (cloth : alk. paper)
ISBN-13: 978-0-226-2 1165-7 (pbk. : alk. paper)
ISBN-10: 0-226-21164-9 (cloth : alk. paper)
ISBN-10: 0-226-21165-7 (pbk. : alk. paper) 1. Liability (Law)—United
States. 2. Law reform—United States—Citizen participation. 3. Civil rights—
United States—History—20th century. 4. Tort liability of police—United States.
5. Tort liability of police—Great Britain. 6. Liability for harassment—United
States. 7. Playgrounds—Law and legislation—United States. I. Title.
KF1250 .E65 2009
344.7305'2—dc22
2009020088
a The paper used in this publication meets the minimum requirements of the
American National Standard for Information Sciences—Permanence of Paper for
Printed Library Materials, ANSI Z39.48-1992.
Contents
Acknowledgments vii
1 Introduction 1
2 Theory: The Fertile Fear of Liability 13
3 The Problem with Policing 31
4 Liability’s Triumph 59
5 Policing’s Epiphany 93
6 Spreading the Word: Variations among Police Departments 115
7 Tort Liability and Police Reform in Britain 139
8 Sexual Harassment 165
9 Playground Safety 197
10 Conclusion 215
Methodological Appendix 233
Notes 265
Bibliography 321
Index 345
Acknowledgments
This book has been long in the making, and I owe a considerable debt to
many supportive people and institutions. The research was made possible
by generous grants from the National Science Foundation (Grant SES-
9905189) and the University of Kansas General Research Fund (the usual
disclaimers apply). I am grateful to a number of scholars for advice and
comments at various stages in the book’s development. I especially thank
Bert Kritzer for very helpful conversations over the full course from plan-
ning to completion and for comments on several drafts. I am also especially
grateful to Candace McCoy for several extremely helpful conversations,
for helping me reach key sources, and for very thoughtful comments on a
draft. With regard to my analysis of British policing, I am deeply indebted
to Graham Smith for a number of valuable conversations and e-mail com-
munications, for he lping me to reach key sources, and for comments on
an early draft. For helpful comments on drafts of the entire manuscript I
thank Dick Brisbin, Lynda Dodd, Laura Jensen, Karen Orren, and Samuel
Walker. I am especially indebted to Bill Haltom and Jon Gould, who re-
viewed and commented on the manuscript for the Press, offering thought-
ful suggestions, and to series editors Lynn Mather and John Conley, who
contributed equally valuable suggestions.
I am indebted to a number of other scholars for comments on parts of
the book. For comments and suggestions on the survey instruments, I am
grateful to Mia Cahill, Lauren Edelman, Lori Fridell, Bert Kritzer, and Sam-
uel Walker. For comments and suggestions on conference papers or early
parts of the manuscript, I thank Jeb Barnes, Tom Burke, Malcolm Feeley,
viii Acknowledgments
Marc Galanter, Joel Grossman, Simon Halliday, Christine Harrington,
Bob Kagan, Stefanie Lindquist, Michael McCann, Marie Provine, Margo
Schlanger, Susan Silbey, Mark Suchman, and Carroll Seron. I benefited
from participants’ comments on presentations at the political science de-
partments of the University of Connecticut, Johns Hopkins University,
Ohio University, and Wichita State University and at the Institute for
Law and Society at New York University, the Law and Society Summer
Institute at Oxford University, and the Conference on Culture and Tort
Law organized by Michael McCann and David Engel at the University of
Denver Law School. For their support, patience, and suggestions I am es-
pecially indebted to my colleagues at the University of Kansas, particularly
Steven Maynard-Moody, John Nalbandian, George Frederickson, Marilu
Goodyear, Justin Marlowe, and Charles Jones, and to my students Randy
Davis, Solomon Woods, and Nathaniel Wright and my former student
Shannon Portillo. For research assistance I thank Tori Barnes-Brus and
Taehyun Nam; and for very helpful editorial comments on a final draft,
I thank Paul Brandenburger and Emily Kennedy. Jamie Kratky provided
helpful clerical assistance, and the staff of the Institute for Policy and Social
Research at the University of Kansas, particularly Larry Hoyle and Xan
Wedel, were unfailingly helpful.
I am especially grateful to the many activists, lawyers, and practitioners
who gave generously of their time for interviews. Although it’s risky to
single out any particular sources, I feel compelled to especially thank Mi-
chael Avery, Constance Backhouse, Raju Bhatt, Tom Brady, Dick Chesney,
Ann Fagan Ginger, David Hamilton, Candace McCoy, Patrick Murphy,
David Rudovsky, Wayne Schmidt, and Graham Smith.
I am extremely grateful to the editorial staff at the University of Chicago
Press. John Tryneski, as another university press editor told me, is “a prince
among editors,” and it’s absolutely true: he offered extremely thoughtful
comments and suggestions that improved the book in key ways. Thank
you, John. I’m also indebted to Alice Bennett for superb copyediting and
forbearance—in the extreme—toward my inability to let go, and to Rod-
ney Powell for very helpful responses to my many questions.
Finally, I am deeply indebted to my parents, Robert O. and Amelia Epp,
for their long support and to my wife Lora Jost for her help and thoughtful
comments over many years. I dedicate the book to her and my son Nicho-
lai (who at seven is already writing a book too—but he says his won’t take
ten years to finish!).
1
Introduction
We are being sued because we are not doing our job. The legal
system and its social engineering are combating our incompe-
tence in finding, selecting, hiring, and controlling our police
officers.
—Remarks of two police officials in a national
workshop on civil liability, 19831
The past quarter-century has witnessed a sweeping, law-inspired
reform of American bureaucracy. The thesis of this book is that,
contrary to the widespread perception that this era was a time of
retreat from the pursuit of egalitarian reform through law, activists
and bureaucratic reformers pushed through law-modeled reforms
that radicall y reframed the core assumptions and tools of govern-
ment administration. Police departments created strict policies on
the use of force and cracked down on abusive officers. Government
human relations departments created and strictly enforced policies
prohibiting sexual harassment. Parks administrators tore out and
replaced play equipment in tens of thousands of playgrounds, de-
signing and managing the new installations to reduce the risk of in-
jury. I argue that these developments, and many more, came about
because newly energized activist movements and liability lawyers
forced agencies to face up to long-ignored problems of abuse and
injury, and because managers came to recognize that these le-
gal claims represented fundamental threats to their public and
