Category Archives: Legal Scholarship

Chicago & Wisconsin During the Eisenhower Years

In this post, NLR blogger Stewart Macaulay responds to Marc Galanter’s comments here (as Guest Blogger in January 2016) about the University of Chicago Law School in the mid-1950s.   

Marc and I met when we both were appointed as Bigelow Teaching Fellows and Instructors in 1956-57.   Marc has been a great friend and someone I have admired for almost 60 years.   I have no quarrel with anything that Marc wrote in his comment about our time at Chicago.

Our experiences overlapped but differed.   Marc can write about being Karl Llewellyn’s student because he went to the University of Chicago Law School.   I went to Stanford and then I was Chief Judge William Denman’s law clerk on the Ninth Circuit.   As far as I could see when I was at Chicago, Llewellyn then was focused on his theories about “the common law tradition.”   It was classic legal realism that dealt with appellate judges.  After a year of looking at United States Circuit Judges in full flight as they reviewed the work of District Judges, I had my own views about that.   Later I was to find out that I only had seen one part of Llewellyn’s ideas.

Some time after Marc joined the Wisconsin Law School faculty, we were walking home together.   We observed that, between us, we had gone to three important law schools at about the same time  (Marc went to both Pennsylvania and Chicago).   We noted that we had heard not one word about plea bargaining or settlement of personal injury cases in our classes.

As Marc indicated, a lot was going on at Chicago when we were there together.   The Jury and the Arbitration Projects were major undertakings.   We heard talks about them, and I met many people working on them.  Law and economics was beginning to have its own turf at Chicago.    However, there were other people doing things that we tend to forget today.

Nick Katzenbach had come to Chicago from Yale.   He wanted to develop materials for a course in legislation.   Most Bigelows taught legal writing.  I did some of that, but I was also assigned to work with Nick.   I was something between a research assistant and a very junior co-author.   Nick had the material developing the theories about the legislative process.   He wanted to get behind outward appearances and offer material about how it really worked.  He was very interested in the role of lawyers who worked backstage for governors and for legislative leaders.    They had contacts and high political skills.    Added to this group were the members of the legislative staffs who understood the deals that had prompted various provisions in the state statutes as well as how all the pieces fit together.   Nick sent me off to the University library to try to track down what had been published about such things.   I found some material, but Nick and I thought that we had identified a major research project that needed to be done.  We discussed the problems of studying what lawyers actually did when so much of it depended on contacts, favors owed over time and other things better kept hidden.   As a member of the Stanford Law Review, I had written and edited notes about cases.   As a law clerk, I had written memos about appeals from trial courts and administrative agencies.   Nick had previously pushed me into work about law but not about rules and appeals.   Only a few years later, Nick would leave Chicago to join the Kennedy and then Johnson administrations.   He went from studying lawyers playing these political roles to doing it for two presidents.   (There is a famous picture of Governor George Wallace standing in the doorway to the University of Alabama symbolically blocking its integration.   Wallace was a small man.   The very large man who represented the United States was Nick Katzenbach.)

My mentor at Chicago was Malcolm Sharp.   He taught contracts.   I had first seen his name when Harold Shepherd, my Stanford contracts professor, handed out to our class reprints of Franklin Schultz’ “The Firm Offer Puzzle.”   This was one of the first empirical studies in the area of contracts.    Those bidding on building construction contracts only made offers and not binding contracts by their bids.   Both those bidding and those receiving the bids thought that one should stand behind a bid and not back out once the one receiving it had relied on it.   Schultz advocated changing contract law to make the bids enforceable.   Sharp commented on the study to our class.  He liked the empirical work, but he didn’t think that Schultz had established that other-than-legal normative and sanction systems were inadequate.

I hoped to become a contracts teacher, and I talked with Sharp.   We discovered that my father-in-law had been a close friend of Sharp’s when they attended the University of Wisconsin.  My wife and I managed to get them together again.

I was hired at Wisconsin.   During the summer before we moved to Madison, I sat in on Nick Katzenbach’s contracts class.   He used Kessler and Sharp as his casebook.   I got to hear Nick’s take on Malcolm’s ideas.   I took lengthy notes.    Then Nick got the flu, and I got to teach the class for a week.   I think that I managed to hide my terror and case of the “impostor syndrome” as I faked it.   But the experience made it easier to begin as a 26-year-old contracts professor at Madison.

We used Lon Fuller’s contracts casebook at Wisconsin.   Fuller had written a famous article distinguishing the various interests that contract remedies might protect  — the expectation, the reliance, and the restitution interests.   Protecting the expectation interest involved putting the aggrieved party where he would have been had the contract been performed.   Jack Ramsey, my father-in-law, was the retired CEO of S.C. Johnson & Sons.   He asked me what I was teaching in contracts, and I told him about the expectation interest.  Jack exploded.  “If you ever have to sue for a breach of contract, you will not be where you would have been had the contract been performed!”   He told me that Johnson had bought containers for its products from three suppliers in the early 1930s.   When the great depression hit, Johnson worked to place its orders with the supplier that needed the order most in order to stay in business.   It did not stage a reverse auction and push the suppliers to engage in a bidding war.   Jack said that this was right morally.   Moreover, he pointed out that six or seven years later, we were in World War II.   Steel was rationed, and containers for consumer products did not have a high priority.   But Johnson never wanted for a can.   “The suppliers owed us one!”    Jack said that I might think that this was just his eccentric behavior.   He called several of his friends who worked for major corporations.  I was on my way to becoming an empirical researcher.  [Here Macaulay refers to the famous study he subsequently conducted on “Non-Contractual Relations in Business,” published in the American Sociological Review.] Fortunately, I had a wife who was well into her graduate studies in social psychology.   She kept her husband from making too many screaming mistakes.

Willard Hurst had a series of grants that he used to develop a new kind of research at Wisconsin.   He insisted that we had to get away from appellate cases and study law as delivered. He used the grant funds to buy research semesters and summers for younger faculty.   Essentially, your job was to read, and Willard would supply suggestions.   I worked my way through such thinkers as Weber, Parsons, Merton, and Malinowski.   Now I also read Karl Llewellyn, particularly The Cheyenne Way [with E.A. Hoebel].

Out of all of this, I fashioned the first drafts of my “Non-Contractual Relations” article.   I sent a copy to Malcolm Sharp, and he invited me to visit him at Chicago.   We took a long walk along Lake Michigan and talked.   He had all kinds of ideas and suggestions which proved to be very valuable.   But just as valuable was the reassurance that I was doing something worth doing.   Sharp also had given a copy of my draft to Harry Kalven who was the head of the Jury Project.  Kalven was a torts teacher who saw that doctrine in his area was hardly enough to account for how law dealt with accidents, crimes, and the like.   Kalven was extremely encouraging and he too offered valuable suggestions.   Some years later when I was awarded a Hilldale Professorship at the Univeristy of Wisconsin, I was entitled to name it after someone in my field with some connection to Madison.    I became the Malcolm Pitman Sharp Hilldale Professor.   It was a way of saying thank you for reassurance when I needed it.   After all, in the late 1950s other young professors were not interviewing lawyers and businessmen.   And they weren’t suggesting that contract law played an important role only in a limited group of situations.   Later I also won the Harry Kalven Prize from LSA.   A prize named after Kalven had special meaning for me.

 

Empirical Law in Canada: Lessons for U.S.

On Feb. 18-19, 2016, Osgoode Hall Law School at York University in Toronto held a marvelous interdisciplinary law conference for graduate law students – i.e., graduate students in training to teach law.  (What a terrific idea, right? Actually training law-professors-to-be in their chosen craft!) (Yes, we know about the joint JD-PhD programs around the country, and Yale’s new program, but – Canada is way ahead of us, as I’ll explain.)

The conference was appropriately titled:  “Choose Your Own Adventure:  Exploring Law and Change through Interdisciplinary Research, New Legal Realism, and Other Perspectives.”  “Break Down Disciplinary Boundaries” — the conference program suggested — and “Explore Alternative Methodologies.”  You could “Engage with Other Scholars” while you would also “Build Professional Skills.”  (Wow, Skills and Scholarship can fit together, with the “skills” component embracing everything from teaching skills to research skills to practice skills!  Imagine that!  A world where law professors can be trained in all aspects of their profession – and those aspects could actually fit together.)  You begin to see why there might be some “lessons for U.S.” in here.

To top things off, many of Canada’s law-profs-in-training have considerable practice experience.  In fact, some of them are practicing law while they train to be law professors.  Well-versed in practicing law, they also get to learn deeper ways to think about what happens in practice (at many levels of law) as part of the research they do for their graduate law degrees.  Someone working on environmental law, for example, might be able to explore interdisciplinary avenues for redefining the way we conceptualize natural resources like water.  Or attorneys contemplating how new codes for civil procedure might actually work in the real world can take a look at what affects citizens’ willingness to adapt to these changes.  (Sociolegal researchers in the U.S. examining legal consciousness would have something to contribute here, as would those who’ve studied how people’s conceptualizations of law affect their actual behavior.  We could also ask what happens in private as compared with state-provided mediation or in mediation as compared with litigation, across a variety of kinds of cases/litigants/courts.)  All of a sudden, whole worlds of social science and social science theory become relevant to legal scholarship and practice  — and under this system, people actually seem to believe that training in both law and other disciplines might be useful.

The Canadian graduate law students I heard at the conference were fluent in legal doctrine and procedure, in theory ranging from Dworkin to Derrida, in quantitative and qualitative empirical approaches, in the nitty-gritty of law practice (and were also thoughtful about teaching practice skills).  Many of these attorney-researcher-teachers will have the analytical and methodological ability to question and study deep assumptions that underlie law, so that efforts to re-think and reform law can become more than skin-deep.   And when they train their own students to practice law, those future lawyers will have a much broader world of expertise upon which to build.

Imagine, for example, a conference where a quantitative study of civil needs among middle-income citizens could speak comfortably to the same audience as did a qualitative study of how legal educators might approach teaching issues of access to justice.  Or where someone studying IP law and fashion design drew on the latest thinking about how to define “design” from disciplines outside of law, to inform the very outdated concepts still enshrined in law.  Or where a study of law teachers dug deeply into how casebooks and syllabi and teaching methods did or did not intersect with law teachers’ aspirations for their teaching and their students.  Interview studies, behavioral law and economics, interpretive research on differences between indigenous oral traditions and writing-based Anglo-American conceptions of evidence, statistical studies, jurisprudence, international relations regime theory – and all mingling in the fresh discussions of a new generation that seemed less concerned with verbal contests for superior position in an argument than they did with “getting it right,” “understanding it better,” finding fresh solutions for entrenched legal problems.

The conference also drew young scholars from other countries, and reported on research from a broad variety of locales.  For example, one researcher’s fieldwork in Australia uncovered the limitations of statutory law in protecting indigenous land rights, despite much triumphal rhetoric to the contrary.  The sense of a broader vision – of legal understandings that seek to rise above parochialism – was aided by listening to presentations in a language other than English (French).  It was also aided by the way the conference began with a reminder of indigenous peoples’ relationship with the site on which the gathering was being held:

“We recognize that many Indigenous nations have longstanding relationships with the territories upon which our campuses are located. We acknowledge our presence on the traditional territories of the Mississsaugas of New Credit, the Huron-Wendat, the Haudenosaunee Confederacy, and the Métis Nation of Ontario.”  See http://www.osgoode.yorku.ca/about/

These sorts of challenges to parochial understandings – including those of law — fit well with the conference’s wider themes and purposes.  Perhaps certain legal systems’ frameworks – their legal ways of posing questions and seeking answers – are not the only ways to envision law (or of posing legal questions or seeking answers to those questions).  In her opening address, Professor Dayna Scott of Osgoode Hall urged her audience to dare taking a wider lens – to embrace an exploding set of methods that might take them beyond the comforts of doctrine.  (Although, as she clearly would acknowledge, these students take account of doctrine as well – putting them squarely within New Legal Realism’s call to study both law-in-books and law-in-action.)   Like many in the NLR movement, she urged that students take not only methods but also theories from other fields as they enlarged their vision of law.  An openness to multiple empiricisms, she pointed out, would permit them a deeper understanding of law’s relation to the “real world.”

And indeed, as I listened to the deeper accounts of law emerging from the work of these young scholars, I saw a bright future not only for forms of new legal realist work, but for those working within and at the mercy of law.  I caught glimpses of a model for interdisciplinary legal work where multiple methods and theories and disciplines could be brought together in service of better understandings – and practice – of law, without needless bickering over who is better or more important.  The Canadian legal academy may not have this entirely put together yet, but I’d say they’re a fair bit further down the track than are most of their counterparts south of their border.

Galanter on Karl,Soia,& UofC’s Realist Tradition

In this interview, NLR Conversations asked Marc Galanter to talk about his memories of Karl Llewellyn and Soia Mentschikoff during his time at the University of Chicago Law School in the 1950s.

“For my first year of law school, I went to the University of Pennsylvania, but I wasn’t very happy there.  So I transferred to the University of Chicago, where I’d been an undergraduate and a graduate student before, for my second and third years.  Unfortunately, that meant I missed Karl’s famous Elements course, which my classmates had taken and I heard a lot about.  Karl and his wife Soia Mentschikoff were major figures at the Law School at Chicago.  And the class of 1956, which I was in, was probably one of the smallest classes of the time.  You see, the law schools had a boom after World War II, and until the people who graduated around 1951 or 1952, there were very big classes – but after that there was this sudden drought; I think our class was about half the size of the ones that had come before.  So the faculty tended to know everybody.

I took two classes from Llewellyn.  One was his Jurisprudence course; I still have the notes.  The other was a wonderful course – it was a seminar.  Chicago was quite unique in those days, in the sense that apart from the first year there were really no requirements!  You could take anything you wanted to.  And that was a time when most law schools had one elective in the second year and maybe one elective in the third year, something like that.

So, Karl gave this seminar – I think it was called something like Comparative Law – and he gave it with Max Rheinstein, who was one of the great German scholars (and translator of Max Weber).  It was the two of them – and my recollection is that other faculty from other parts of the university were there, so there were around four or five faculty present, making it like an advanced seminar.  There was someone from the Oriental Institute, and I still remember sitting around this big table with lots of people from all over the University. It was a great experience.  It was very interdisciplinary and very theoretical. People weren’t concerned with “what kind of rule should we have for this,” but instead it was a big picture course.

Llewellyn’s approach was very eclectic. The things that he was trying to teach us were not confined to law texts.  One day he came in with a whole bunch of spoons and he talked about the different styles of spoons. He viewed this as parallel to different styles of judging. It was a mind-expanding thing. You learned to look at things that you’d been looking at in a different way. I think that was the big lesson of the time.  Things look different from different angles. Llewellyn took us everywhere; he would talk about the Cheyenne; he had all these examples and created all these different juxtapositions.

He was also very temperamental. He’d have these big mood swings and angry outbursts, particularly if he was disappointed with you or if you missed something. He would let you know that he was disappointed. One that comes to mind is a time that I didn’t do well on an exam for his course. I remember that he stopped me on the steps and asked “What was the matter with you?” He was not hesitant in expressing his disappointment. It’s interesting now that I think of it, it was an exam, not a paper — how did he even know who I was?

Llewellyn was not a Kingsfield type in class. He was very open. I think if there was something someone said that surprised him or caused him to looked at something in a different way, he would respond positively, unlike Kingsfield — who already knew what he wanted to hear. I think Llewellyn tried to provoke people. I’m sure he had his routines that he had developed in teaching over the years, but he was open to things outside the box.

Karl and Soia were a pair. I took several classes from her. She was very busy because that was the period when the whole Uniform Commercial Code thing was coming in. Chicago was an interesting place at that moment. Ed Levi had gotten the Ford Foundation to support a whole series of empirical projects at the University, the most famous one being the Jury Project. There was also something called the Arbitration Project. Soia was the lead person on that, just like Harry Kalven was the lead person on the Jury Project. On the one hand, Soia was trying to massage the Law Revision Commission in New York or whoever could get the UCC passed. She had this huge success in Pennsylvania when it adopted the UCC and that was their first big break.   I don’t remember Llewellyn mentioning the UCC.  At the time, that was her baby. He had some influence, in the way he structured it — but she got it done. From the perspective of the students at the University of Chicago, she seemed very absorbed in it and he was connected with it but it wasn’t his constant preoccupation in the same way as it was hers. She seemed to be traveling a lot to basically sell it, taking criticisms and modifying it. I don’t have any sense that he was preoccupied with it.  My sense was that he was busy writing about appellate courts and how they worked.

I took two classes from Soia. One was on commercial law….  She made an impression, of course. I went to Chicago my second and third year, and then I spent a year as a teaching fellow. I was a Bigelow with Stewart [Macaulay] in the same cycle. That’s where I met Stewart. He must have graduated law school a year before me because he had clerked for a judge in San Francisco. Then he and Jackie came out to Chicago. There were around six of us Bigelows at that time. About five of us were basically the writing instructors. Stewart was pulled aside and worked for Nick Katzenbach. But the others, one became a don at Oxford and leading figure in legal education there but like many law teachers of the day, never wrote a thing. He was the only one that I kept in touch with. There were a couple of others.  But Karl and Soia were very much a pair. Although, now that I think of it, I didn’t see them together.  When I was at U of C, I was very much a student of Llewellyn and Rheinstein.

That year I was a Bigelow, there were a whole bunch of social scientists around the law school. There was the Jury Project.  This was a couple years before the famous book by Kalven and Zeisel came out. There was a book with Zeisel as editor that had already come out called Delay in the Court. So in some sense, Chicago was the living example of the realist thing. They had the empirical projects going on there. I don’t recall the label “realism” being used per se, but we were used to the notion that these big empirical investigations were a legitimate, important, pioneering thing. The empirical projects had a lot of staff.

I don’t recall anyone complaining that the interdisciplinary stuff wasn’t appropriate for law students. Chicago prided itself as having people who were considered outliers. Ed Levi was very much in the Realist tradition. He was very supportive of all the social science research, the Arbitration Project and the Jury Project, these large empirical projects that the Ford Foundation sponsored.  He was the guy who went out and promoted those and got the money from Ford; he was very interested in this kind of work on law. So I would say that Levi was very much in the Realist tradition and that he really wanted to add an empirical, systematic dimension to it.  He went into the Ford government after Nixon fell and the he became Attorney General under Ford. The other thing is that when there was student unrest in Chicago while Levi was the Chancellor, he was very tough.  He is a really unexamined figure; it would be interesting to do a study of Levi. He didn’t use the label “realist” but he seemed to me very much in that tradition as Dean of the Law School.

In some sense, the University of Chicago was the quintessential realist law school, with all those big empirical projects going forward. And while Levi was Dean, the outreach to social science was very central to the Law School.

Fineman on Vulnerability and Law

In this provocative and fascinating post, Martha Albertson Fineman, Robert W. Woodruff Professor of Law at Emory University Law School, provides a brief introduction to VULNERABILITY THEORY, an approach she has helped to pioneer both in the U.S. and abroad.  (There is currently burgeoning interest in this approach in Europe, for example.)  For the purposes of New Legal Realism, Vulnerability Theory is a key example of a promising translation point for those interested in working with both social science and legal theory.  Quite frequently, legal theory has operated with the implicit or explicit idea that the core “unit of analysis” is an autonomous rights-bearing individual.  While this model does appear in a number of social science approaches, it is not the only or even the dominant model across all of the social sciences.  Many of the social sciences take the “social” part of their research mission very seriously, and empirical research undertaken with more socially based models tends to shed different light on how law impacts its subjects.  With her bold Vulnerability Theory, Fineman opens a door in legal theory that could permit legal researchers to draw more fully on insights from across the social sciences.  She concludes this piece with a strong series of warnings about “What Vulnerability Theory is NOT”!

Understanding Vulnerability Theory

Western systems of law and justice have inherited a political liberalism that imagines a ‘liberal legal subject’ as the ideal citizen – this subject is an autonomous, independent and fully-functioning adult, who inhabits a world defined by individual, not societal responsibility, where state intervention or regulation is perceived as a violation of his liberty. Social arrangements and institutions with significant effects on everyone lives, such as the family, are deemed “private” and their operation and functioning relegated to ideologies of meritocracy and the free market.   Vulnerability theory challenges the dominance of this static and individualized legal subject, and argues for the recognition of actual human lives as socially and materially dynamic.

Vulnerability theory understands human beings as embodied creatures who are inexorably embedded in social relationships and institutions. By rejecting the limited subjectivity constructed in the liberal imagination, we acknowledge the lived complexity of the ‘vulnerable legal subject’ – a political vision of how the human condition is profoundly shaped by an inherent and constant state of vulnerability across the life-course from birth until death. Incorporating the inevitability of change into the political project of conceiving the legal subject creates a complex subjectivity to guide the way we define individual and state responsibilities. It provides a basis to question and critique current allocations of responsibility for individual and societal wellbeing across the individual and the state and its institutions. Vulnerability theory takes seriously the political and legal implications of the fact that we live within a fragile materiality. We are, all of us, vulnerable. Sometimes our vulnerability is realized in the form of dependency on others for care, cooperation, or assistance.  Sometimes it is realized in our dependency on social arrangements, such as the family or the market or economy.  But, whether realized or latent, this vulnerability is universal and constant – an essential and inexorable aspect of the human condition.

Importantly, the primary emphasis of vulnerability theory is not our human vulnerability, although the theory begins there. When vulnerability is understood as a universal constant, the task then becomes to explore the strategies by which we can mitigate this vulnerability. Therefore, human beings are not rendered more or less vulnerable because they have certain characteristics or are at various stages in their lives, but do experience the world with differing levels of resilience. The inequality of resilience is at the heart of vulnerability theory because it turns our attention to society and social institutions. No one is born resilient. Rather, resilience is produced within and through institutions and relationships that confer privilege and power. Those institutions and relationships, whether deemed public or private, are at least partially defined and reinforced by law.

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Atuahene on NLR and South Africa

New Legal Realism Conversations is excited to welcome our newest blogger, Professor Bernadette Atuahene!  Bernadette’s work exemplifies the NLR ideal three-part combination of work on law, social science and policy.  An attorney fully conversant with the formal law and legal theory, she also conducted field research and interviews in South Africa to examine the question of rights to land and land loss in South Africa.  She used her knowledge of law and her empirical research to inform policy in ways that are right now having effects “on the ground” in South Africa. (And, moving even further to a “four-part” combination, she also helped to create a film that publicizes the South African situation).  In her first blog post, Bernadette explains how her new legal realist combination of social science and law inspired her work:

New Legal Realism and Justice in South Africa

One goal of scholars who work under the umbrella of New Legal Realism (NLR) is  to produce empirical scholarship that impacts policy while maintaining intellectual integrity.  This is exactly what I have done with my work in South Africa.  My new book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program (Oxford University Press, 2014) is based on 150 interviews that I conducted with people who were robbed of their land rights by the colonial and apartheid governments and who received some type of compensation through the land restitution program.  The book develops two concepts:  Dignity takings and dignity restoration.

Millions of people all over the world have been displaced from their homes and property. Dispossessed individuals and communities often lose more than the physical structures they live in and their material belongings; they are also denied their dignity. These are dignity takings, and land dispossessions occurring in South Africa during colonialism and apartheid are quintessential examples. There have been numerous examples of dignity takings throughout the world, but South Africa stands apart because of its unique remedial efforts. The nation has attempted to move beyond the more common step of providing reparations (compensation for physical losses) to instead facilitating dignity restoration, which is a comprehensive remedy that seeks to restore property while also confronting the underlying dehumanization, infantilization, and political exclusion that enabled the injustice. Dignity restoration is the fusion of reparations with restorative justice. We Want What’s Ours provides a snapshot of South Africa’s successes and failures in achieving dignity restoration.

Most importantly, as this clip from the Johannesburg book launch shows, the Deputy Land Claims Commissioner announced that the Commission has adopted 90% of the book’s recommendations: ttps://youtu.be/fjGBhQkhTVw  This is the sweet spot for NLR scholars: carefully collected data having a positive impact on policy and the lives of the most vulnerable among us.  This outcome was no coincidence.  It involved years of building a strong  relationship with the leaders of the institution I studied (the Land Claims Commission) and taking time to find out how I could collect data on topics of immediate concern to them while also collecting data on theoretically important topics.

While NLR scholars produce scholarship that uses data to help us understand the most complicated social issues of our day, our goals do not stop there.  We also ideally take measures to ensure our work is disseminated widely.  The NY TimesLA Times and several other newspapers have published my op-eds about the book.  We Want What’s Ours has also received extensive TV, radio and print coverage in the US and South Africa. With colleagues, I also created a nonprofit called Documentaries to Inspire Social Change (www.discwebsite.org), which produced an 18 min. documentary about one South African family’s fight to regain their land stolen by apartheid authorities.  While books reach a wider audience than academic articles, film is the way to reach and educate larger groups of people.

The book, documentary film, op-eds and TV as well as radio appearances ensure that knowledge about land dispossession in South Africa is not trapped in the ivory tower, but instead reaches outside of university spaces to the broader population.  This is what NLR scholarship is all about.

For more about the book: wewantwhatsours.com

NY Times op-ed: http://www.nytimes.com/2015/01/16/opinion/south-africas-land-inequity.html?_r=1

LA Times op-ed: http://www.latimes.com/opinion/op-ed/la-oe-atuahene-mandela-land-south-africa-20141207-story.html

Margulies on LSA: Ruminations on Law, Legal Realism, and Emotional Attachments

Following the 50th Anniversary Law & Society Conference in Minneapolis, we at NLR Conversations had the idea of sharing some reactions to the experience. I’ve been thinking about this a great deal, and wanted to set down some thoughts about the first and last panels I attended. Sorry for the shameful delay in putting this to paper, for which I can offer the usual, pedestrian excuses as well as the chaos associated with a move from Northwestern to Cornell.

The first panel I attended—in the wee hours of the first day—was on constitutional change, including a presentation by my former student, Amy Myrick, who summarized her very interesting doctoral research about congressional proposals to amend the Constitution. It was quintessential new legal realism—or at least, so it seemed to me.  Each paper not only acknowledged but actually emphasized the sometimes-wide gulf between law as it exists within the four corners of a case or statute, and law as it enters and alters the life of the community.

For example, Ken Kersch, who teaches political science at Boston College, presented an excellent paper about the modern conservative attachment to the myth of the common law, especially an idealized conception of 19th-century laissez-faire jurisprudence, which conservatives accept as an archetype and use to inform policy judgments about what 21st-century jurisprudence ought to be.[1]

It was obvious from all the papers, as well as from the comments both by the discussant (my Cornell colleague Aziz Rana) and the audience, that everyone in the room understood that “law” acquired meaning not simply from its production, but from its injection into the public square, where it becomes subject to continual contest and negotiation, and that there was almost no point in talking about “law” as an abstract, fixed thing except to mark the distance between such a notion and reality, which is immeasurably more complex.

Contrast this with so much of the writing that we find in modern law reviews. For example, as I was writing this little missive, I scrolled down the archives of the Cornell Law Review and plucked, at random, Volume 97, Issue 4, and pulled up the lead article, Alexander Tsesis, Self-Government and the Declaration of Independence, 97(4) Cornell L. Rev. 693 (2012).

Over the course of 60 pages and 273 footnotes, Professor Tsesis argues that the Declaration should be read as a legally binding text that “sets constitutional obligations to protect life, liberty, and the pursuit of happiness,” and that it imposes on all three branches of government a duty “to protect inalienable rights on an equal basis.” Id. at 695. Tsesis then uses this argument to critique City of Boerne v. Flores, 521 U.S. 507 (1997), and Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).

The Declaration, in other words, is an 18th century super-case, the four corners of which not only can but must control the resolution of legal controversies 250 years later, without reference to historical, political, or intellectual context. In fact, the only context Tsesis provides comes when he catalogs nearly every mention of the Declaration by judges, legislators, and scholars over the course of two-plus centuries, all of which combine to show that We the People have more or less always revered it.

I certainly do not mean to criticize Professor Tsesis, whom I do not know. As far as I can judge, he wrote an excellent article, as articles of this sort go, and he seems to be a perfectly competent legal academic. But this is not the sort of scholarship one would expect from New Legal Realists. The Declaration was a document written by a particular person with a particular set of biases and objectives at a particular moment in time for quite particular purposes. It was injected into the colonial blood stream, where it acquired a complex cluster of meanings, the precise content of which may be difficult or impossible to reconstruct. In time, it acquired symbolic, mythical meaning, the content of which we worship (but also change) as much or more as we do the original understanding. Of course, the same can be (and has been) said of the Constitution.[2]  To speak of “the Declaration,” therefore, without reference to its symbolic life, to its many meanings, and to its particular creative history, is at best incomplete – and at worst, seriously misleading..

The last panel I attended was an author-meets-reader session. Three authors, of which I was one, discussed each other’s books, and were in turn critiqued by Jothie Rajah of the American Bar Foundation, Rick Abel of UCLA Law, and Maureen Duffy from Calgary Law. Broadly speaking, the topic was torture, and discussion naturally turned to the torture memo, written in 2002 by John Yoo. Here, unlike in the first panel, nearly everyone on the panel and in the audience seemed to want to treat the torture memo as “bad law” and the enhanced interrogations as indisputably illegal. Much more importantly, discussion about the torture scandal took place without regard for how the torture memo has in fact been used since it became public in 2004.

In fact, I would go further than this. The lesson that seemed self-evident at the first panel (viz., that this thing we call law is an odd compound which immediately changes its character upon exposure to the outside world) had been forgotten. People wanted to believe, contrary to what they know to be true, that we could pick up the torture memo, measure it against existing statutes by applying conventional tools of statutory interpretation and legal analysis, and conclude in some definitive way that George Bush was a crook. It reminded me of Larry Kramer’s observation about the Constitution, made in a very different context:

If the Constitution is law …, it is not (supposed to be) politics. It is, of course, political, in the sense that all law is political: it has political consequences, those who interpret and apply it cannot help but bring their politics with them into the interpretive process, and so forth. But modern recognition of the inherently political nature and structure of law still accepts the fundamental premise that law can and should be separated from politics. Law is, if you will, the part of politics that is supposed to be left to courts and judges.[3]

Yet this is precisely the idealized, mythologized view of law that realists reject, or so I had thought.[4]  Law is not, if you will, separate from politics. And this is true not simply for the reasons collected by Kramer. It is political not simply because interpreters have biases, but because the meaning of any text is inherently and inevitably constructed, torn down, and reconstructed again in an intensely social and never-ending process; it is political, in other words, in the very broadest sense, and so much so that there is really no point talking about law in the pure form envisioned by Kramer.

The upshot of all this, it seems to me, is clear enough. In the second panel, many of the participants were seduced by an emotional attachment to a particular understanding and followed it to a point that was intellectually indefensible. This of course is something we must guard against. We can condemn the enhanced interrogation program and its trappings without sacrificing intellectual convictions about the nature of law in American society. Even more importantly, we can condemn it for the horrors it produced without getting into sterile and unwinnable debates about whether the torture memo is faithful to that iconic but “essentially contested” symbol of all things good, ‘the rule of law.’[5]

And as scholars trying to devise a consistent and defensible vision of law in society, it behooves us to do so.

Joe Margulies
Cornell University
July 2014

______________________

[1] The paper was adapted from, Ken I. Kersch “Constitutive Stories About the Common Law in Modern American Conservatism,” in Sanford Levinson and Joel Parker, editors, NOMOS: American Conservatism (New York University Press, forthcoming) (to appear with comments by Lino Graglia).

[2] See, e.g., Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred Knopf 1986).

[3] Larry D. Kramer, The Supreme Court 2000 Term Forward: We the Court, 115 Harvard Law Review 4-169 (2001).

[4] Now is as good a place as any to disclose that I have been closely involved in these issues since late 2001. I was lead counsel in Rasul v. Bush, and now represent Abu Zubaydah, the person for whose interrogation the torture memo was written. I am one of the few people in the world who actually know what was done to Abu Zubaydah, and have no doubt in my mind that it was torture and morally repugnant.

[5] Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, Law and Philosophy 21: 137-164 (2002). For a discussion of how the torture memo has been used in the public square, see Joseph Margulies, What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale Univ. Press 2013).

Shedding Empirical Light on Indigent Defense

Often the new empiricism in law takes the form of advice from social scientists to lawyers.  In this interesting post, Professor Michele LaVigne turns the New Legal Realist tables, and gives social scientists advice on the kind of information that is needed by lawyers involved in trying to make the legal system fairer:

Happy Birthday Gideon

 For a brief while this year, the news turned its attention to the state of indigent defense in the United States.  First, Gideon v. Wainwright turned 50 and we heard that Gideon is a dream unfulfilled or deferred, or at the very least, it’s an unfunded mandate and in many jurisdictions it looks like one.   Then came the sequester and no surprise, federal defender services took the first hard hit, with federal defenders facing either lay offs or furloughs that will drag on for who knows how long. (There is no corresponding shortfall for federal prosecutors)

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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.

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Mertz Pleads for “Slow Reading” and against Academic Isolationism

I ‘d like to add two points to this interesting discussion:

1.   I would commend taking some time to read in detail what people who call themselves “new legal realists” are actually saying.  Careful readings of the older realists are very welcome, of course – but why not look closely at some of the newer material?…

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KT asks: Who Is the Enemy?

A very wise colleague once told me to understand scholarly developments it is helpful to ask, who is the enemy?  As John Schlegel points out, for “old” legal realism, the enemy was formalism…

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