Governance Without Law: Assessment and Transparency in the Construction of Social and Political Institutions

I have suggested that regulatory power has become fractured. Its assertion both by public and private bodies is well known. Less well recognized is that the expression of this regulatory power has been fracturing as well. No longer confined to positive regulation or judicial decision, the techniques for enforcing regulation are substituting for regulation itself. In Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15:101-148 (2008) I examined surveillance as a mechanism through which power is asserted and regulation effected in a world of shared public/private governance. For this purpose, understanding the nature of surveillance as a technique of governance, and as a substitute for governance itself, is a key element for understanding political authority as it is developing. The article focused on surveillance as a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are not relevant. It explored the ways in which the construction of complex systems of conscious and permanent visibility affects the power relationships among states, economic entities and individuals. To understand the complexities and vectors of surveillance is to grasp the shape of converging public/private governance in this century. But that project required the unbundling of the normative and methodological assumptions of surveillance. The approach adopted in that paper was founded on the division of surveillance into four of its key aspects, normative, informatics, control, and governance, each of which was developed in turn. Drawing on Foucault's theories of gouvernmentalité, I suggested the ways in which governance is increasingly elaborated through the techniques of its own power. My focus was on transnational surveillance systems.

These systems all share something in common— the effectuation of broadly based behavior aspirational goals with very specific and concrete application through regimes of monitoring, disclosure, observation, intervention, and open textured stakeholder intervention. Information is used by the principals to the governance relationship but is dependent on the participation of multiple actors in monitoring, reporting and reshaping. Thus, the IMF’s lending programs require the active participation of governments, business, civil society, and the media to create an open textured constant state of vigilance grounded in the norms that constitute the conditions to the loan. Id., at 147.

And thus, I posed, surveillance has morphed from an incidence of governance to the basis of governance itself. Id., at 107.

But the techniques of control through surveillance and transparency are not limited to macro phenomena, like the structuring of states. It's utility may be even more pronounced as it affects those social relationships and institutions form which political, cultural, religious and economic parameters for conduct and values are produced. One gets a sense of the disciplinary power of surveillance and its regulatory effects in the disciplining of the construction of law itself through the control of the evaluation of law schools. This relationship between the production of the culture of law, the development of a substantive set of values for evaluating law schools and law school ranking through programs of monitoring were examined in the excellent recent work, Michael Sauder and Wendy Nelson Espeland, "The Discipline of Rankings: Tight Coupling and Organizational Change," American Sociological Review 74:63-82 (2009). Their abstract nicely describes the project:

This article demonstrates the value of Foucault’s conception of discipline for understanding organizational responses to rankings. Using a case study of law schools, we explain why rankings have permeated law schools so extensively and why these organizations have been unable to buffer these institutional pressures. Foucault’s depiction of two important processes, surveillance and normalization, show how rankings change perceptions of legal education through both coercive and seductive means. This approach advances organizational theory by highlighting conditions that affect the prevalence and effectiveness of buffering. Decoupling is not determined solely by the external enforcement of institutional pressures or the capacity of organizational actors to buffer or hide some activities. Members’ tendency to internalize these pressures, to become self-disciplining, is also salient. Internalization is fostered by the anxiety that rankings produce, by their allure for the administrators who try to manipulate them, and by the resistance they provoke. Rankings are just one example of the public measures of performance that are becoming increasingly influential in many institutional environments, and understanding how organizations respond to these measures is a crucial task for scholars. Id., at 63.

Sauder and Espeland remind us that disciplinary governance works in ways that mimic law--both rely to a substantial extent on the internalization of values and conduct rules inherent in each of them. That they are sourced differently--one the product of an expression of democratic theory applied to a legitimated state apparatus and the other in a seemingly ministerial and neutral project of information production, retrieval, dissemination and analysis--their effects are similar in terms of the ordering of social conduct and the construction and preservation of asocial values. When applied to the institutions from which social and political values are created and legitimated, the power of governance assumes a paramount position. That, effectively is what Suader and Espeland suggest in the constitution of the institutions principally responsible for the production of legitimating forms and values for law and political structures--the law schools. Those who control the values on which these institutions are grounded can indirectly control the shape of the product created--lawyers, judges, politicians and the language, values, forms and codes through which these actors operate (and embrace as "normal"). And that is the critical lesson that Sauder ans Espeland teach.

Drawing on an intensive case study of law school rankings, this article explains the value of Michel Foucault’s concept of discipline for understanding why these organizations are unable to buffer themselves from this new institutional pressure. Analyzing rankings as a form of disciplinary power reveals that rankings, through processes of surveillance and normalization, change how internal and external constituencies think about the field of legal education. These new understandings of legal education, in turn, encourage schools to self impose the discipline that rankings foster. Rankings also offer external audiences a means for compelling law schools to meet their demands. Rankings change perceptions of legal education through incentives that are simultaneously seductive and coercive. Id., at 64.

Control of the institutions that discipline the forms of political, economic, cultural or religious power can effectively shape the products and functioning of those institutions; and that control of those institutions are much more effectively undertaken through the disciplinary power of "benchmarking" than through an elaborate system of positive regulations. Sauder and Espeland conclude: "In addition, this approach helps explain how efforts to control rankings, whether through strategic manipulation or resistance, propel the institutionalization of rankings and extend their power." Id. I add a consequence of this insight: those who can control the content of benchmarking, and the apparatus of information gathering, dissemination and evaluation, can effectively assert a substantial control over the institutions and their products.

Surveillance, then, functions as more than a descriptor of methodology. Surveillance is a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are made irrelevant. The construction of complex systems of conscious and permanent visibility, as both normative systems and bundles of specific techniques, affects the power relationships among states, economic entities, and individuals. It represents modalities of fractures and complications in assertions of regulatory power, replicating its forms and effects throughout society.

Backer, supra, at 106.

Sauder and Espeland suggest that organizational theory's focus on the way in which organizations protect their autonomy fails to perceive the importance of the metghodologies by which autonomy might be divided between its form and its function. Formal autonomy, through strategies of buffering and decoupling, may not suggst the tight coupling and difficulties of buffering against external pressures. They seek to "explore factors that precipitate tight coupling and discourage buffering. This shift in perspective emphasizes the significance of the characteristics of institutional pressures on members’ capacity to enact buffering. Instead of asking why some organizations in some environments can decouple from institutional pressures, we ask why some environmental pressures are less “decouple-able” than others." Sauder and Espeland, supra at 65. They focus on ranking as a methodological discipline against which institutions may not effectively buffer their operations or normative structures. "A general insight of this work is that contemporary institutional theory understands institutions primarily as broad macro-symbolic systems encompassing many organizations." Id., at 66. But this approach neglects the subsystems and actors who mediate institutional formation and norms. "Law schools’ reactions to rankings are best understood as the evolving responses of an assortment of actors who struggle to reconcile their sense of themselves as professional educators with an imposed market-based logic of accountability." Id.

"To analyze how rankings discipline, one needs intimate knowledge of organizational practice. We thus conducted an in-depth case study of the effects of [U.S. News and World Report] rankings in one educational field: law schools. We selected law schools because the disciplinary effects are especially clear there." Id., at 66. Sauder and Espeland naturalize the law school ranking system in the United States within the analytical framework of Foucault.

Disciplinary power is a central, constitutive feature of modern selves. In investigations of mental institutions, medicine, prisons, schools, and sexuality, Foucault describes an array of disciplinary techniques through which people become the objects of particular kinds of knowledge that construct them as mad, ill, criminal, sexual, or, most generally, as individuals. The creation of ranks is one such technique. . . . An analysis of surveillance and normalization, two of Foucault’s central disciplinary techniques, shows how these cognitive changes encourage a tight coupling between rankings and organizational activity. Id., at 69.

Sauder and Espeland describe the continuous surveillance that is at the heart of the U.S. News and World Report law school ranking system.

The publicity and trepidation accompanying the annual release of rankings may be episodic, but the scrutiny they promote is continuous. According to one dean, “Obsessed may be an overstatement, but it’s not much of an overstatement. Law school deans are obsessed with those rankings. None of us like them but all of us are obsessed.” One manifestation of this obsession is that rankings become a key reference point in decision making. Id., at 70.

But surveillance is not merely continuous, and substantively effective, it is quite detailed in the scope of its disciplinary power. "Rankings force people to examine details that were previously ignored. One manifestation of this “eminence of detail” is the meticulous recordkeeping that rankings encourage. Schools create intricate rules about how to conform to USN criteria." Id. Details, then serve not merely to privilege certain types of informaiton, but by so privileging, it shapes the hierarchy of values in the construction and development of the institution itslef. "Schools analyze these details because even small changes in rankings criteria can change their rank. As one administrator said, “It’s time consuming, and the punishment for not doing it is really high.”" Id., at 70-71. Surveillance thus transforms even as it reports. It is not merely passive and ministerial, but aggressively positive in its regulatory (and self disciplining) program. "Discipline becomes embedded in schools’ administrative routines through schools’ ongoing production of statistics. The new “facts” generated by these routines become the object of intense internal inspection." Id., at 71. And critically affect resource allocation. Id.

The effects of surveillance are not merely internal--but they become critical factors in the ability of law schools to access markets, both for students and for prospective employers willing to hiure their students. It also affects the competitiveness of law schools to attract talent for their faculties, and ultimately of access to money.

Prospective students around the globe use rankings to quickly gauge a school’s status; student law review editors use rankings to vet professors’ manuscripts; faculty use rankings when considering job prospects; law firms use them to determine where to conduct campus interviews or which class ranking to use as a threshold for interviews; university presidents, trustees, and boards of visitors use rankings to evaluate a dean’s performance, allocate resources, and create strategic plans; and alumni use rankings to monitor the trajectory of their alma maters, whether for bragging rights or concern over the value of their degrees. Id., at 71.

The effect, ironically, is consonent with the movement of power from elites to the masses in political theory. "The easy scrutiny that rankings create makes evaluating law schools a more populist project, just as USN intended. Disparate, dispersed, and sometimes ill-informed audiences now feel qualified to assess the performance of each law school over time and in relation to other schools." Id. Mass politics, in effect, is reflected in the character and consequences of the disciplinary techniques of surveillance and reporting. But the irony is that while formal power to judge is now devolved to the masses, control over what is judges, that is control over what is deemed important (and the value assumptions inherent in those juidgments) remain firmly tied to elites (in this case the small group of people that develop the criteria for monitoring).

The effectiveness of this system of surveillance is made stronger by its normalization. "Disciplinary power is based on normalization. For Foucault, “the penalty of the norm” functions, paradoxically, by defining a class of subjects as the same and then using normative criteria to establish individual differences. This process of simultaneously linking and distinguishing is a distinctively modern form of power." Id., at 72.

Rankings, in commensurating law schools, shape organizational cognition, changing how people notice and what they notice. Differences among schools are expressed solely as intervals on a shared metric. The number of books in a law library is directly connected to the percentage of students employed at graduation, which is linked to faculty salaries, and so on. Id.

And, of course, incentives to normalization are made more powerful by its connection to flows of power. At its heart is the substantive power of comparison. Something passive, the comparison of two or more like things, is made active when through it differences are both highlighted, privileged and consequences are made to flow from them. It is not merely difference at the heart of comparison but a values judgement in herent in rank that make it both useful and regulatory. "In combining, weighting, and ranking differences among law schools on many dimensions, USN creates an “optimal” law school against which all others are compared. Rankings make clear which schools are at the top and the bottom and the exact difference between all schools." Id., at 73. The effect of hierarchy and the construction of values thus critically affect the values inherent in legitimate law schools (and thus the production of legitimate legal knowledge). We have moved from simple information gathering and comparison, to a complex system of judging and regulatring the constitution of law schools and the legitimation of the production of only certain types of knowledge therein.

Schools that stray too far from the optimum set by USN are stigmatized and punished. Law schools with missions promoting public service or schools serving disadvantaged students, for example, must either compromise their missions or be excluded from the category of “good law school.” Sauder and Espeland, supra, at 73.

And, all of this, of course, is nicvely veiled beneath the neutrality of science (data and data analysis) and the silence of discussion of values and policies underlying assumptions and choices made to produce the data and its analysis.

Data issues center on recognition. The principle variable involves the constitution of data. The foundational issues of data revolve around the questions: What is raw information? What is judgment or conclusion? An easy example of this problem is “race”: is it raw data or is it a judgment? The answer may depend on factors outside of, but informing, the constitution of the data itself. The same applies to other data markers—for example, what constitutes corruption? What constitutes sexual deviance? Backer, supra, at 124.

Politics has moved from the legislature to the offices of those who purport to create neutral systems of ministerial functions.

Sauder and Espeland then turn to the factors that promote a strong internalization of surveillance at least in the context of constituting the community of law schools, their power and hierarchy. "Internalization is mediated through people’s emotional and cognitive responses to rankings, and through their distinctive and evolving interpretations of rankings. To support this claim, we show how three interpretations of rankings, each with a particular emotional tenor, are important conduits of internalization: rankings as sources of anxiety, as objects to resist, and as pressure that becomes, for some, peculiarly seductive." Sauder and Espeland, supra, at 74.

Anxiety produces incentives to conform. It is not merely the rankings but he power to control its determination that produces both an anxierty about the preservaiton of status but also serves as avector for the preservation of power in the miontoring institution.

Priding itself on remaining accessible and responsive to law schools, USN willingly listens to complaints, answers questions, and sometimes alters its measures. USN presents these changes as part of a continual effort to improve the rankings in response to feedback, but many educators interpret these adjustments as intentional efforts to “shake up” the rankings to maintain their marketability and newsworthiness. No matter the motive, these changing evaluative criteria make it difficult to craft coherent strategic responses, heightening administrators’ anxiety. Id., at 75.

Resistance suggests a capitulation. One resists only what one determines is a legitimate and credible threat. To resist is to consent to engagement and thus to step into the conceptual universe of the entity against which one resists. By resisting, institutions and individuals both concede the substantive power of surveillance systems and incorporate its methodological frameworks. "Resistance facilitates the internalization of discipline because it expresses an investment in a relationship, one that can be simultaneously resented and alluring. By making rankings a point of reference around which action and beliefs are organized, resistance helps internalize the discipline of rankings." Id., at 76.

Allure suggests a capitulation of a different sort. This involves a willingness to game the system, a cynical embrace of the underlying values and a reorganization of behavior in order to maximize rewards under the conceptual framework of the system of surveillance itself. "Complicity in the game involves accepting the competitive terms of this status hierarchy, where one school’s ascent requires another’s descent. Many deans described how rankings exacerbate competition among law schools in ways they find disturbing." Id., at 77. Gaming the surveillance system, with its analogue in the gaming of law, serves both to induce loyalty and increase resources devoted to the operation and deepening of the system. It also serves to strengthen the values privileged in the choices made for disclosure.

And thus the regulatory universe of law school disciplinary systems is complete. A ssytem of governance without government, its effects are as rigid and exacting as any system of positive regulation. And in the context of producing hierarchies of legitimate factories for the production of legal knowledge it may be more effective. Its greatest triumph, though, may well be in the way in which the assumptions underlying the system also produce a set of values about appropriate forms of knowledge that ought to be cultivated and the form of product (in terms of students and knowledge) that are to be valued. It is not just a ranking of law schools that is being produced, but a powerful system for the production of the culture of law that is the product of this system.

We move here from power to its sociology. Pierre Bourdieu reminds us that

Legal qualifications comprise a specific power that allows control of entry into the juridical field by deciding which conflicts deserve entry, and determining the specific form in which they must be clothed to be constituted as properly legal argument. Such qualifications alone can provide the necessary resources to accompliosh the work of construction which. . . .allows reality to be reduced to the useful fiction we term its judicial definition. The body of professionals is defined by their monopoly of the tools necessary for legal construction. This monopoly is itself an appropriation: the size of the profits of that monopoly of the market guarantees to each professional depends upon the degree to which the monopoly can control the production of its members, the training and above all the licensing of juridical actors authorized to sell legal servics. Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," 38 Hastings Law Journal 805, 835 (1987).

Bourdieu also reminds us that "sociology, which the guardians of the public order tend to see as indivisible from socialism itself, is conceived as the pernicious reconciler of science and social reality, against which the pure exegeses of abstract theory becomes the best protection." Id., at 851. Sauder and Espeland illuminate the way in which what I have called "information farming," (Backer, supra at 122-123), can serve as the basis for control of the institutions that serve as gatekeeper to the production both of the law that serves as the grounding of the juridical field and the professionals whose monopoly of the tools necessary for the construction of these law frameworks. "Information is power. That is well understood. But information farming is more power still. The control of those farming operations provides a source of power. It also provides a technique for controlling challenges to such power. The great contribution of twentieth century totalitarian systems to American democracy, perversely enough, has been its understanding of the utility of information as a means to power and its retention." (Backer, supra, at 148).