Category Archives: Research Methods

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.

Mertz on Studying Social Science Ethics

In recent months, prompted by media coverage of research by sociologist Alice Goffman, a number of law professors have stumbled upon a longstanding set of questions surrounding social science ethics.  These questions, which I first encountered during my Anthropology 101 class in the 1970s, are obvious concomitants of any form of deep, long-term observational research.  Anthropology has long been a leader in a form of that research known as participant observation, the results of which are generally reported in ethnographic writing.  One of the most striking aspects of the current exchanges — to this anthropologist/law professor’s ear — is the assumption made by some that a superficial glance at one high-profile case suffices to identify where key problems lie (see, for example, some of the exchanges on a well-respected law professors’ blog, The Faculty Lounge.) My esteemed former colleague Stephen Lubet even went so far as to comment that: “It seems that the field of ethnography ethics is seriously undertheorized,” without any citation to the voluminous literature involved, let alone any consultation with the many scholarly experts in this area.

He further promised to spend the summer researching this, in his view, previously untrod ground.  This led me to once again contemplate differences in research strategy between some (not all) trained in law, and most (not all) trained in social science.   My own training, and that of most I know who are trained social scientists, is to begin with an assumption that there is much to learn.  This assumption also carries with it a form of humility that is part of stringent method:  I don’t assume that I can quickly grasp a complex area.  In keeping with this approach, if I were going to study the ethics of ethnographers, I would not focus on the unusual high-profile case that grabbed media attention, but rather on standard practices.  I’d want to know about common ethical dilemmas facing all kinds of field researchers, and the history of how disciplines had dealt with them.  Of course, since observational researchers tend not to trust self-reports, I’d want to spend some time actually observing ethnographers over substantial periods of time.  I’d want to learn about ethics training for incipient fieldworkers.  And I’d excavate thoroughly what is already known, talking with experts from the field in question who know far more than I do about the current state of affairs.

The situation, mentioned above, that was described by my introductory anthropology course professor (all too many years ago now!), involved a mother about to give birth to twins in the village where my professor was conducting long-term ethnography.  The practice in that village, as she described it, was to kill one of the twins immediately after birth.  The villagers knew that this was frowned on in the Western-style colonial legal system that could formally be enforced against them.  My teacher described the dilemma she faced in deciding whether to intervene or not — a dilemma that was resolved when the family opted not to follow traditional practices (possibly because she was present as a potential witness).

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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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Secunda on New Legal Realism with Discussion

NEW FEATURE! Welcoming NLR Guest Blogger  PAUL M. SECUNDA

Paul Secunda is an Associate Professor of Law at Marquette University Law School.

Culturally-Motivated Cognition As a Type of New Legal Realism

The judicial role in society is popularly understood by its principle purpose of providing a fair adjudication of disputes by a neutral decisionmaker – the judge or the jury.  Yet, a practical barrier exists. That practical barrier is cultural cognition.

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Nobel Prize Winners in Economics Advocate Mixed Methods, Complex Approaches

Legal scholars seeking rigor in studying the law often turn to single-method solutions  — statistical analyses of large data sets, for example, or lab studies.   They might be surprised to hear two Nobel laureates in Economics talk about the importance of interdisciplinarity, of turning to many methods.

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