Law in action and law on the books: A primer

We are pleased to welcome a guest blogger, Bill Clune, whose post gives us his “primer” on the concept of law-in-action, a concept shared by the original legal realists, scholars in the law-and-society tradition, and many new legal realists. Clune’s reflection was occasioned by questions raised at the University of Wisconsin Law School. We welcome other reflections on the concept of “law-in-action” at newlegalrealism@gmail.com.

Guest Blogger: Bill Clune,* May, 2013

This essay was prompted by a question from the then Assistant Dean of Admissions to me as Admissions Chair about what to tell applicants who asked him about the meaning of “law-in-action.” He is a graduate of our school [the University of Wisconsin Law School], which has specialized in the area for many decades, and he had listened to and read many explanations, including those on our web site, which is also available to and often read by the applicants. I think of myself as having spent a lifetime of scholarship and teaching in the area, but it was easier for me to give examples and say words circling the concept than to formulate a clear, concise explanation. The puzzle was accentuated by a survey subsequently administered to our law students which found that the most common understanding of law-in-action was clinical education, a response which seemed to me unquestionably valid from a student perspective yet also incomplete.

The University of Wisconsin Law School web site explains that:

“Knowing the rules is like learning to play scales when you study a musical instrument. Playing scales is essential, but it isn’t music. And knowing the rules is essential, but it isn’t being a lawyer.”

The site explains how solving a client’s problem often “requires looking beyond the rules and into the entire set of relationships surrounding the dispute,” and adds that law-in-action also is “studying with professors whose own work examines the role of law in the world, the ‘law and society’ school of research.” This explanation seems mostly consistent with clinical education, but it is more complex in postulating a distinction (and unresolved tension) between legal rules and legal practice and introducing a role for research on law in society.

As ideas, “law-in-action” and “the rules” (or “law on the books”) contain a puzzle, seeming at once mutually dependent (don’t we need both?) yet contradictory (reality versus theory).This essay seeks a clearer understanding by exploring four questions: (1) What is law-in-action? (2) Where does our knowledge about law-in-action come from? (3) What is “law-in-the-books”? (4) Has the main source of law-in-the-books within law schools (i.e., doctrinal teaching and research in law school) moved closer to law-in-action? As implied by the word “primer,” my purpose is developing a simplified map of a territory often traveled by law applicants, students, law professors, lawyers, social scientists, and others.

(1) The essence of law-in-action: social decisions and the indeterminacy of legal influence

The essence of law-in-action, the characteristic most exactly distinguishing it from law in the books, is this: law-in-action is any decision, action or transaction made or contemplated by individuals and organizations as to which law or legal consequences might be relevant and might have an impact on how decisions are made. The decision maker in a particular context is in the foreground deciding what pieces of law are relevant — along with many other factors. Law does not dictate behavior “from the top.” Decision makers determine the significance of law in decisions, actions and transactions. [note 1]

The decisions can be those made by lawyers practicing law but may also be made by organizations and citizens in the ordinary business of life. Decisions are the “action” in law-in-action. And the fundamental reason why law-in-action differs from law-on-the-books, why the influence of any law or rule is indeterminate, is the wide range of influences and internal value judgments impinging on actual decisions in an endless variety of social contexts. “Indeterminate” influence means variable in strength and direction, from substantial and compliant (e.g., compliance with handicapped parking restrictions), to substantial and avoidant (e.g., banks restructuring of transactions to avoid financial regulations), to trivial or non-existent (e.g., systemic non-compliance with poorly enforced safety regulations).

To give a sense of the immense scope of decisions and actions that may involve considerations of legal influence, here are a few examples: attorneys and individuals filling out tax forms and doing tax and estate planning, parties and lawyers engaged in civil or criminal litigation deciding on legal strategy, prosecutors deciding which crimes and defendants to prosecute, parties and lawyers engaging in commercial transactions deciding how to structure deals such as real estate or commercial lending, parties and lawyers devising strategies for divorce and custody, government agencies enforcing legislation and administrative rules (e.g., environmental protection, civil rights), government agencies implementing social programs (e.g., the Affordable Health Care for America Act, No Child Left Behind), citizens complying with, ignoring, or evading legal rules (e.g., motorists, polluters and potential polluters), and appellate and other judges deciding cases.

The influence of law is indeterminate in these various contexts because of factors other than law which have an impact on the decisions. Some of these factors are: the incentives for compliance and non-compliance (e.g., compliance with environmental regulation by established versus transient business enterprises), resources available to different parties (e.g., in divorce proceedings), non-legal social norms and relations (e.g., exchange relations in business), personal and cultural values of the parties (e.g., in civil rights), the wide range of outcomes that may result from negotiations (e.g., multi-party deals fashioned in commercial transactions), and the overlapping relevance of different and sometimes inconsistent laws as understood and interpreted by the parties (e.g., through varying sub-cultures of legal interpretation).

The indeterminate influence of law is well illustrated by Macaulay’s pioneering study [note 2]. Formal contracts between businesses are sometimes drafted to set the terms of exchange transactions. But disputes are rarely settled according to contractually specified remedies, and litigation is extremely rare. Formal dispute resolution is costly, inefficient, damaging to business reputation, and disruptive of good business relationships. Disputes usually are settled by alternative means such as informal negotiation, good faith, and market alternatives (e.g., finding another buyer). Law has less influence because non-legal forces have more influence (referred to in other settings as alternative sources of social control). Litigation is more likely to occur when a single purpose relationship is terminated, and one of the parties is left with unrecoverable costs (e.g., lawsuits based on wrongful termination of franchises). Judicial opinions are interesting because they rely on legal precedent, statutes, and regulations, invoking law as a seemingly determining influence. But the meaning of law is often ambiguous and open to interpretive judgment, leaving room for considerations of policy, politics, ideology, and value judgments based on the distinctive facts of particular cases.

Thus, in social decisions, viewing law from the bottom up — as law-in-action — law is only one consideration among many of indeterminate relevance varying by factual, economic, social, and legal context.

(2) Knowledge about law-in-action: practice, empirical research, social science theory

Although the influence of law in different contexts is indeterminate, it is somewhat predictable. Patterns of legal influence, compliance and non-compliance exist in every area of practice and social life. The main sources of knowledge about contextualized legal influence are legal practice, empirical research, and social science theory. Practitioners learn the patterns through experience (practice). For lawyers, legal practice is the great and final teacher of law in action, just as business practice and police work are for decision makers in those domains of action. Lawyers, individuals, and firms acquire knowledge about the patterns of legal relevance in their specific contexts, the “lore” which orchestrates the practical uses of law. Legal practice is on-the-job training in law and action. Researchers study the patterns in various social and economic contexts (empirical research). Social science theory is a source of predictions about legal impact that may be tested by empirical research, for example, sociology (e.g., organizational filtering), psychology (e.g., response to information and incentives), and economics (e.g., efficient allocation of resources).

(3) Law-on-the-books: teaching about legal doctrine in law school and doctrinal research

You might think from the previous discussion that law-in-books refers to whatever law is considered by decision makers to whatever extent it is considered. This is a possible meaning but one that collapses the distinction and fails to capture the tension between law-in-action and law-in-the-books. Legal rules as weighed by decision makers are better considered as part of law-in-action. For the legal realism movement, which promoted law-in-action as an alternative to law-on-the-books, law-on-the-books existed as a culture and practice in law schools among law professors who taught and conducted research on legal doctrine (rules of law) as the proper object of legal knowledge. The emphasis on legal doctrine is still prevalent in law schools (with many modifications) and appears in two places: the traditional law school curriculum and traditional doctrinal research.

Legal doctrine as taught in law school. Law course books are literally “books” of law. Most law courses are compendiums of cases, statutes, and regulations organized by substantive legal area or topic: torts, property, criminal law, civil litigation, taxation, corporations, professional responsibility, etc. Each area is organized by legal content or legal doctrine. Legal doctrine is relevant to but often far removed from law-in-action. Law-in-action seldom unfolds as an orderly sequence of legal content in particular areas of law, rather it is the opposite, a disorderly sampling of facets of different areas of legal content combined with a multiplicity of other factors in particular contexts.

While doctrinal teaching is limited by its focus on legal content rather than the situations of practice, doctrinal law courses have the advantage of introducing students to entire areas of law and developing explanations of the policy objectives, purposes, and intent underlying the law and its sub-parts. Many situations that arise in practice require an understanding of how different aspects of the same body of law interrelate and advance policy objectives in a coordinated fashion. In fact, practicing lawyers who find themselves involved in areas of law that they did not take in law school may take a continuing legal education course offering an overview of the area to get a better understanding of the big picture. Doctrinal courses also involve training in basic skills used frequently in legal practice, such as interpretation of legislation and judicial opinions and legal writing. They also have the advantage of conveying a sense of legal process and the architecture of the legal system, for example, how the common law developed over time and was modified by statute and administrative rule. The logical method used in teaching doctrinal courses may have “meta” advantages for practice, such as careful distinctions made between superficially similar factual situations and rigorous analysis of normative conclusions reached from facts.

Doctrinal research conducted by law professors. Another source of law-on-the-books is a vast body of doctrinal research that explores nuances of legal doctrine, often evaluating law on the basis of normative criteria such as internal logic, consistency with precedent, conformity with statutory purpose, efficiency, good policy, and equity. In pure form, such research is not based on empirical research or social science theory but on scholarly reflective analysis of the authors (mainly law professors). It is library research. Doctrinal research has many advantages, including the exploration of interesting jurisprudential and ethical issues (e.g., how closely should constitutional analysis conform to the text of the constitution, what ethical issues are raised by birth control, abortion, and biotechnology), and it supports doctrinal teaching, allowing law professors to sharpen and deepen their understanding of legal topics and stay current with related research. But it is of less interest to practicing lawyers and practice-oriented law students because of its focus on subtleties of legal doctrine and normative judgments about legal policy. Lawyers and law students do have an interest in jurisprudential and policy issues, but they are more concerned with the details of practice.

(4) Have law school teaching and research moved closer to law-in-action?

If legal doctrine in law schools is a major source of law-on-the-books, an interesting question is whether law school teaching and research have moved closer to law-in-action by incorporating the two sources of knowledge about law in action, legal practice and law-in-action research (empirical and theoretical). The answer is surely “yes” but with some distance remaining.

Law school instruction. Most doctrinal courses incorporate insights into how particular aspects of law are used in practice. These insights are drawn from the sources of knowledge about law-in-action: practice, research, and theory. It might be said that doctrinal courses today are hybrids of law-on-the-books and law-in-action, reviews of legal content interspersed with insights about practical effects. Realist-trained law graduates should be more sensitive to the realities of practice, more aware of the multiple forces impinging on legal decisions and the adaptations and adjustments that are beneficial to clients. For example, new lawyers exposed to Macaulay’s work should be better prepared to deal with their clients’ responses to breach and other contract disputes and more willing to revise existing contracts in a way that reflects the realities of business practice. Students trained in law-and-economics will have been exposed to the economic incentives underlying transactions and institutions (e.g., how best to structure efficient venture capital agreements). Clinical and simulation courses, which have expanded greatly since I went to law school, are modeled on or involve legal practice and are popular among students eager to understand how knowledge about legal doctrine applies in real situations. Clinical education has another attraction because it often involves public interest law, introducing students to the pro bono side of the profession.

Law school research. Law-in-action research (empirical and theoretical) has grown significantly as an alternative to doctrinal research, as illustrated nicely by the so-called “gap study.” Laws are presented in doctrinal research as having legal purpose or intent and policy objectives. [note 3] It might be said, for example, that that one purpose of law is fair and equitable division of wealth between divorcing spouses. Empirical research almost always discovers a gap between legal intent and impact – uncovering, for example, that in divorce proceedings, parties can use child custody as a bargaining chip in disputes over property, and that differences in the wealth and power of the spouses have powerful effects on outcomes (also common knowledge among practitioners in the field). The indeterminacy of law-in-action guarantees that such gaps will occur. Given the dynamics of law-in-action, social purposes of laws can never be achieved in pure form. The gap between legal purpose and legal effect has been an important focus of much empirical research on law-in-action (in many academic disciplines including law) and the basis of social criticism and calls for reform.

The distance between policy research and legal practice. Empirical and theoretical research on policy is valuable to law professors in offering sophisticated tools for teaching and analysis of the policies in their substantive specialties. Some law professors have dual degrees because of the value of interdisciplinary training in supplementing doctrinal teaching, analyzing public policy, and participating in law reform efforts. But empirical research on policy and law reform has limited interest for law students and practicing lawyers who more concerned with the details of legal practice. Lawyers become interested when reforms emerge from the legislative process and are enacted into law (unless the lawyers are involved in the reform process). Also, legal practice does not involve conducting empirical research using social science methods. Efforts to train law students in empirical research date back to the days of the legal realism movement but never gained much traction because of lack of relevance to the practice of law. [note 4] Academic research that is more useful to practitioners seems both feasible and underutilized and should be of interest to law students.

Conclusion

Law-in-action is an attribute of legal practice and other social decisions in which legal rules have indeterminate strength relative to other considerations involved in the same decisions. Knowledge about law-in-action comes from two sources: legal practice and law-in-action research (drawing both on empirical methods and social science theory). Law-on-the-books comes from doctrinal teaching and research in law school. Doctrinal law school teaching conveys knowledge and skills useful in practice, and doctrinal research is helpful to law professors in teaching doctrinal courses. Law school teaching has moved closer to law-in-action by incorporating elements of knowledge from practice and law-in-action research (empirical and theoretical). Research on law-in-action is useful for law professors in teaching, public policy analysis, and law reform.

But a significant gap remains between law-in-action and law-on-the-books. The unfolding of law-in-action in the field is never structured like law school teaching as an orderly exposition of legal rules or empirical evidence on legal impacts but rather as a stream of decisions in which legal rules are contextually embedded. Each area of legal practice is a medley of decision-making practices which must be learned from experience. Practitioners and law students are less interested than law professors in public policy analysis and empirical research. However, academic empirical research on legal practice that is more useful to practitioners seems feasible, underutilized, and potentially valuable for legal education.

The partial overlaps and tensions between law-on-the-books as taught and researched in law schools, law-in-action as practiced in the field, and law-in-action as studied in empirical research have existed since the early days of formal legal education. Like yin and yang, law-in-action and law-in-the-books are defined by each other, co-existing in creative tension.

**Bill Clune is Voss-Bascom Professor of Law Emeritus, University of Wisconsin Law School Acknowledgements. Thanks to Howie Erlanger,Stewart Macaulay, John Henry Schlegel, and Bill Whitford for helpful comments not necessarily implying agreement with my analysis or conclusions.

NOTES:
1. The phrase “law in action” is usually attributed to Roscoe Pound’s 1910 article Law in Books and Law in Action, but the “bottom up” approach taken here is closer to Karl Llewellyn’s realist critique of Pound, e.g., in his 1930 paper A Realistic Jurisprudence — the Next Step. See Jean-Louis Halperin, Law in Books and Law in Action: The Problem of Legal Change, 64 Maine Law Review 1 (2011). This essay deals with the application but not the formation of law (although law application does involve an element of law formation, e.g., judicial decisions). Law formation includes politics, elections, interest groups, lobbying, the legislative process, and the relationship of law to larger forces in society (e.g., public opinion, culture, globalism, capitalism and its regulation, bureaucratic rationality). Law formation could be considered as law-in-action, involves similar dynamics (e.g., indeterminacy, multiple influences), and is of great interest and relevance to law and social science. It is not discussed here for the sake of simplicity and because, while it is considered in other social sciences, it is generally not part of legal training or research (legal history being one exception).
2. Macaulay, S. (1963), Non-contractual Relations in Business: a Preliminary Study, American Sociological Review, volume 28, no. 1.
3. Llewellyn, supra n.1, regarded rules (doctrines, rights) as misleading yet irresistible conceptual abstractions from the real actions of decision makers. At the same time, he thought that legal purposes and social interests abstracted from rules by legal reasoning are useful as standards for evaluating the effectiveness of law-in-action. Social interests, like the security of transactions, are useful because they suggest that law is “man made” and can be evaluated on the basis of standards of social welfare outside the law.
4. Schlegel, J.H. (1995), American Legal Realism and Empirical Social Science, University of North Carolina Press, Chapel Hill & London.

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