Category Archives: Original Legal Realists

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.

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“Reality” and Justice

“Reality” as a Claim for Justice — by Beth Mertz

In these oddly jaded times within the social sciences, it is interesting how controversial a claim to be capturing “reality” can be.  Of course, this is not surprising.  One of the key jobs the social sciences can perform is to keep us from too easily accepting commonly accepted “truths” that are in fact false, or perhaps just very dubious or impossible to prove.  Even the very positivist field of forensic psychology at times sounds oddly postmodern in its denial of any fixed “truth” – we know a lot more about what can cause false identifications or memories than we know about accuracy, as if there are no accurate eyewitness identifications or memories of abuse.  Again, there is a good reason for some of this:  we now know that many people have been unjustly jailed, even sent to death row, based on false identifications and evidence.  At the same time, reading this literature, one sometimes feels a sense of vertigo, as if these hard-nosed empiricists have actually given up on there being any accurate memories or actual “reality” that happened at all – although of course, their own work depends on their own abilities to remember and code and identify some kind of empirical “reality” with accuracy – as does so much of the fabric of social life.

In the more qualitative areas of social science, as in my own home field of anthropology, this discomfort with identifying “truths” and fixed realities has reached high levels – again for very good reasons.  Too often the “realities” fixed by cross-cultural encounters have been based in the self-serving perceptions of Westerners engaged in colonial or post-colonial adventures designed to impose their norms (and profit-margins) on people with less power but much wisdom, so frequently ignored and lost in the transactions.  The realization that anthropology itself had been complicit in these impositions froze the field in its tracks in many ways, and plunged it into a sometimes-productive, sometimes-infuriating phase of epistemological questioning.  (I may be prejudiced, but I do think that this phase has left the field well-placed to help in the cross-cultural translation processes now becoming so ubiquitous in an era of concern with the “global.”)  Again I just note that while questioning is very important, if we generate only critique, we are unlikely to be able to contribute to activist attempts to improve the frequently very dismal situations being studied – and this ought to raise some ethical issues for us.

Moving then to law, that very applied arena of social studies, it is perhaps surprising to encounter yet more agnosticism about “reality” – and I can only repeat, once more for terrific reasons.  What other field has the awesome task of deciding the fate of accused human beings, of jailing them or even killing them?  In the hands of legal decision-makers can rest the fates of businesses and churches; of children, abused women, the wrongly accused, and the mentally ill.  When juries or judges find “facts,” on the way to making decisions, they are ringed around with procedures that limit the scope of their inquiries – in a sometimes successful, sometimes terribly wrongheaded effort to keep out factors that are deemed wrongly prejudicial or inflammatory, and so forth.  This means that the truth that emerges from legal decisions can never claim to be the “actual reality,” but only the “facts” as framed very particularly in this legal proceeding.

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Happy Birthday to the Law & Society Association!

We at the New Legal Realism blog want to congratulate the Law & Society Association on the occasion of its 50th anniversary meetings.  The LSA Meetings, currently underway in Minneapolis, have for many years drawn social science and legal scholars together for productive scholarly conversations across many tough-to-traverse disciplinary boundaries.  The “broad tent” approach always espoused by LSA has drawn its critics, but it also has permitted diversity of many kinds to flourish – not least of which is the constant back-and-forth between theories and methods from a broad range of social sciences, on the one hand, and the concerns of lawyers who struggle on the ground to bring law to its best potential.  We celebrate that ongoing vibrant exchange in our May NLR post.

Work in the LSA tradition has spanned all of the social sciences, permitting scholars to match the methods they use to the questions they seek to answer (rather than adhering to methodological orthodoxies).  It has, importantly, drawn on theory as well as method from the social sciences, while it has also bridged the divide between legal scholarship and empirical research.  The very first winner of the LSA’s prestigious Harry J. Kalven, Jr. Prize in 1983 was University of Chicago law professor Hans Ziesel, who along with sociologist Kalven, had conducted a famous study of “The American Jury.”  Abraham Goldstein described the project as follows:

… directed by a distinguished lawyer and sociologist, it offered at long last to fulfill the promise of realist jurisprudence.  The legal   realists, who came of age in the 20’s and 30’s, had called academic lawyers away from the abstract doctrines announced by appellate courts and had urged them instead to study legal institutions and processes as they functioned in the real world – the behavioral assumptions underlying them, the interactions among them and the relation they bore to other social phenomena. (Review of “The American Jury” in Commentary Magazine (April 1967))

Since 1983, the Kalven Prize (along with other LSA honors) has been awarded to scholars from a broad range of disciplinary backgrounds, including psychology, anthropology, law, criminology, political science, and sociology – and has recognized work using experimental, qualitative, quantitative and mixed methods conducted to high standards.  At the same time, we see among those honored by the LSA an enduring concern with justice and with applying social science knowledge to real world problems.  This year’s honorees include Empirical Legal Studies founder Ted Eisenberg, whose quantitative research contributed to better understandings of the law in action across a host of arenas (from jury behavior to capital punishment to attorney fee systems) – and Kim Lane Scheppele, whose empirical ethnographic work on comparative constitutional law manages to also bridge legal and social science theory at high levels, while speaking directly to urgent policy issues.

The John Hope Franklin Prize at LSA honors top-notch research on race, racism, and the law — and work by outstanding scholars on gender, class, legal history, and international topics (to mention just a few) has been fostered and recognized by the LSA (which regularly draws scholars from across the world together).  In its ongoing support for truly interdisciplinary research and intellectual exchange about the law in action, LSA exemplifies the spirit of the new legal realism.  Happy Birthday, LSA, and here’s to the next 50 years!

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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Macaulay continues the conversation….

… continuing our July conversation …..

STEWART MACAULAY

On defining New Legal Realism:  I would stress the term “new” in New Legal Realism.  This effort is Realist because it isn’t primarily focused on judges, legal rules, and elaborate system building after the fashion of Williston or Wigmore.  NLR is interested in the consequences of law — both the intended and the unintended….

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Schlegel Responds to Leiter on Legal Realisms, Old and New

OUR NEXT GUEST BLOGGER:  Schlegel!  on Leiter

We welcome Schlegel! of SUNY-Buffalo Law School, who has sent us a comment on Brian Leiter’s recent article about “Realism, Old and New”.  This will be followed by some additional posts on the subject of defining New Legal Realism.  We welcome comments that contribute to a substantive conversation at newlegalrealism@gmail.com.

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Introducing 2 new legal realists and 2 old legal realists…

In our September 2011 post, we introduce two members of a younger generation of new legal realists, and re-play some nuggets of wisdom from two of the older generation…. Jerome Frank and Karl Llewellyn.

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