As I was preparing my remarks for today, I thought about other LSA Presidential Addresses that had resonated with me, from Felice Levine's (1990) description of Lily Tomlin's “Trudy,” and the “goose bumps” that she (Felice) got from sociolegal studies, to Frank Munger's (2001) appeal to law and society scholars to do engaged research.

I realized that two themes I care passionately about were implicit in several of those previous talks, and that's why I had found them so compelling. They are the importance of asking the big questions (those that give us goose bumps), and the urgent need for a commitment to engaged research. I will argue today that there are in fact close links between these two themes. And, I will suggest that making these links explicit may help us address some of the dilemmas attached to the role of the engaged intellectual.

The teacher-scholar enjoys the opportunity to contribute to the development of public intellectualism and, particularly, to a concern for social justice and the democratic process. As teachers, we have the opportunity to share with students the skills of critical questioning, which is the fundamental grounding for thinking about what a commitment to social justice and democratic processes means. As scholars, even when we conduct policy-driven studies, we have the opportunity to contribute to progressive social change, as long as we remain independent of the client and engaged with basic theoretical and conceptual questions of the social sciences. In response to Calavita's call for a commitment to engaged research, I propose that we begin our work at work.

The observation that Great Britain and the United States are two countries separated by a common language has been variously attributed to Mark Twain, Oscar Wilde, George Bernard Shaw, Bertrand Russell, Dylan Thomas, and Winston Churchill. The Law and Society Association's (LSA) Presidential Addresses tend to be one of the occasions when this overworked observation clearly rings most true. More precisely, since language is but one dimension of culture, an equally widely credited truism, it is always the point in the Annual Meetings at which an alien tends to feel most alien. For me, the achievement of Kitty Calavita's Address lies in the way that it helps me to define that feeling of strangeness.

It is, I suspect, no accident that it was a breakthrough in physics that caused Kitty Calavita (2002) to reflect on the need for law and society scholars to engage in acts of public discourse and aspire to become public intellectuals. Substantively, physics may be an unlikely source of theoretical help to law and society scholarship, but no discipline better epitomizes the role of science as a practical aspect of power and governance since the mid-20th century. I would suggest that we follow Calavita's meditation not to develop our envy of the methods and theories of physics, but to develop our reflexivity concerning the dangerous role of physicists as “enablers” of power. (Think J. Robert Oppenheimer and the Manhattan Project, not Einstein and the General Theory of Relativity.)

An appeal to public intellectual should have special resonance in Eastern and in Central Europe—a part of the world where former dissident writers and intellectuals have become presidents, ministers, and chairs of parliaments, and lawyers once persecuted for opposition to regimes have become chairs of constitutional courts and tribunals. As a matter of fact, Eastern and Central Europe have produced many great intellectuals, as evidenced by a quick check of the birthplaces of Nobel Prize winners. It is also a place where a distinctive social class, the intelligentsia, was considered to have a particular mission to govern the souls and spirits of nations in the name of Freedom and Justice. Where better then to debate the role of intellectuals in answering the big questions concerning democracy and freedom, and indeed in moving the world in that direction!

At the turn of the 20th century, as more people in the United States started moving to urban areas, the quality of the milk supply became one of the preeminent public health challenges of the day and a centerpiece of the Progressive agenda. Governments passed ordinances and statutes to safeguard the milk supply and sanctioned violators of these laws. This study collects the published cases where judges were asked to enforce these health regulations.

Contrary to the Revisionist reading of Progressive Era constitutional history, these cases demonstrate that enforcement of these health laws became more difficult during the Progressive Era. Parties resisting these laws made broader constitutional challenges to the laws more often. While the number of victories for these parties remained steady, the scope of their victories became broader. The study also throws light on the early use of “regulatory crimes.” Governments were more likely throughout the study period to use a criminal rather than a civil enforcement process. Surprisingly, the use of criminal enforcement did not affect the government's success rate in these cases.

While the normative debate over originalism continues unabated (e.g., Scalia 1997; Whittington 1999), the systematic empirical validity of originalism lies relatively unexamined. Using data derived from briefs filed by litigants over eight years, we developed an initial systematic test of the influence of arguments about text and intent on the decisions of U.S. Supreme Court Justices. Typically, we find that Justices support textual or intentional arguments when they are made by liberal parties or when they are made by conservative parties, but not across the board. Multivariate analyses show that legal arguments as to text, and particularly intent, have little impact on the votes of even those Justices alleged to be originalists. Instead, ideology continues to explain their decisions.

What explains how and why the Supreme Court interprets precedent? We contend that Justices incorporate precedents into their opinions to maximize the extent to which the Court's legal policy reflects their own policy preferences and to increase the likelihood that their opinions will be efficacious. Thus, we expect the interpretation of precedent to be influenced by the Justices' policy preferences, the norm of stare decisis, and certain characteristics of precedents. To test this idea, we examined how, in all cases decided in the 1991 and 1995 terms, the Court's majority opinions chose to legally interpret the set of available Supreme Court precedents. While our results are not uniformly supportive of our hypotheses, they lend general support to our theoretical argument. First, we demonstrate that the Court is more likely to positively interpret (rather than not interpret) a precedent that is ideologically proximate to the Court, that is legally relevant, or that was previously positively interpreted by the Court. When considering negative treatment broadly construed, our data only demonstrate that the legal relevance of a precedent exerts any influence. However, when we restrict our analysis to “strong” negative interpretation of precedent, we uncover reasonable support for the influence of stare decisis in that both the legal relevance of precedent and prior negative interpretation of precedent affect strong negative treatment. Thus, one implication of this study is that, contrary to the attitudinal model's prediction, the Court's prior treatment of precedent does appear to influence the way Justices make decisions.

Models of judicial decisionmaking have traditionally relied on legal, political, and contextual variables, emphasizing judges' background, litigants' rights claims, and the relative social status of the parties involved. A recent scholarly expansion has brought cultural variables into the equation, indicating that judicial scholarship might usefully include narrative and rhetoric as measures of legal consciousness. This project examines AIDS-related litigation from the U.S. Circuit Courts of Appeals between 1983 and 1995, emphasizing the social construction of sexuality. It uses content-based coding and stepwise probit analysis to evaluate the importance of controlling for language that depicts AIDS as a “gay disease” and its association with death and plague metaphors.

The recent article by Marco Verweij in Law and Society Review offers a promising approach for studying the effectiveness of rules for achieving environmental goals. He suggests treating levels of toxic substances as the independent variable, and then looking at that variable across a range of legal and regulatory cultures. In the article, he argued that the adversarial culture of the United States compared to the cooperative culture in civil law nations meant that firms in Europe were more proactive in cleaning up their emissions than was the case in the United States. To make this point, he sought to compare chemical pollution in the Rhine to that found in the Great Lakes of North America. He also claimed that the International Joint Commission (IJC), a small-but-respected international organization, had worsened the situation in the Great Lakes. Verweij's approach is so promising, but the execution so flawed, that a comment on his thoughtful effort seemed in order. My comments will address, first, the scientific/technical difficulties in his study and, then, political/social science issues. It concludes with a brief review of other ways we could test his idea. I believe correcting the flaws related to the biophysical science and executing a relevant study along the lines he suggests would advance our understanding of how differences in legal cultures and institutions produce real-world outcomes.

In her response to my article, Mary Durfee argues that my research, though promising, is “flawed” in its execution and rests on “incoherent biophysical science.” She reaches this conclusion by misrepresenting my article in eight ways. I would like to highlight these misunderstandings before pointing out, and correcting, a real flaw in the execution of my research, which went undetected by Durfee, but which did not affect the conclusions of my study.