The trouble with law and order

By guest blogger Nick Cheesman

What is law and order? How does it differ from the rule of law? And what are the implications of the difference between the two for our understanding of how and why political and legal institutions act as they do? These questions have a new salience for Americans since the Trump presidency began in January 2017, promising a “law and order administration.” Of course, the United States has had more than its share of self-professed law-and-order administrations, and although today’s is unorthodox, it has its antecedents. Be that as it may, Trump’s aggressive posturing presents Americans with an opportunity to go beyond the usual understandings of law and order, and to ask more critical questions about this concept’s place in the country’s political and legal imagination.

In a book published in 2015, Opposing the Rule of Law, I argued that law and order is neither a fellow traveler with the rule of law, nor one among a package of goods that constitute it, as is conventionally assumed, but is its asymmetrical opposite. That is to say, the two oppose each other, although they do not occupy points at the far ends of a scale of identical values. They are not precisely contrasted, as in the rather worn out dichotomy between the rule of law and the rule of men, but are hostile to one another, each by virtue of its own distinctive contents.

I made this argument by asking what we can learn about the rule of law from study of a place where it is absent. My research site was Myanmar, or Burma: a country where conditions were unlike those of the United States in almost every way. During the 2000s and early 2010s, I documented the activities of courts, police and administrators there as they labored under a military junta. These institutions undoubtedly had a very different reading on law and order from their American counterparts, and at the time I gave little thought to the US. As an interpretive scholar of contemporary Southeast Asia I wanted to write an account of Myanmar on its own terms. The book’s findings seemed pertinent to nearby countries with shared legal traditions, or similar experiences of politically active armies. By contrast, the language and practices of law and order on the other side of the Pacific struck me as distant and foreign.

Nevertheless, study of political and legal ideas in any particular setting inevitably presents opportunities to identify elements that might help in our understanding of times and places that were not in mind during the course of research. In my case, having combined empirical methodologies so as to address theoretically informed questions (see Suchman and Mertz 2010), I embarked on a more protracted and generalized inquiry into the conceptual relation between law and order and the rule of law than I had originally intended—one that, through dialogue with colleagues from around the world, made me think harder about how the relation might travel. And without aiming to force research findings into places where they do not have purchase, I now think that the relation I sketched might provoke conversation about how law and order animates practices elsewhere—perhaps even in the United States under the Trump administration.

Law and order, to continue with the argument, differs from the rule of law in four primary ways. First, the rule of law rests on the idea that general rules maintain order, whereas law and order depends on particularistic commands and directives, in response to exigencies. Second, the former emphasizes the role of judicial institutions, whereas the latter privileges administrative ones. Third, under the rule-of-law ideal, public adjudication according to general rules guides conduct so that people can make decisions of their own accord. To maintain law and order, by contrast, authoritative institutions act on specific injunctions to intervene directly into people’s lives. Fourth, whereas under the rule of law, discipline ideally is an endogenous feature of political relations—characteristic of those relations; not imposed on them—law and order entails the exogenous imposition of discipline.

If the rule of law aims to minimize arbitrariness, then law and order has as its primary concern non-restlessness. Its ultimate object is quietude. Law and order conceives of a mode of association whereby essentially administrative mechanisms quieten people. Some kind of subordination is necessarily present in the idea of law and order. Quietude does not happen of its own accord. Somebody must quieten someone else. The trouble with law and order, then, is that it reveals in itself an essential affiliation with inequality—not only in fact, but also, in contrast to the rule of law, in principle.

None of this is to imply that practices animated both by law and order and the rule of law do not get entangled—that conditions can be indicative only of the one or the other. Obviously, order emerges from an admixture of arrangements, some coordinated and others coercive, some from below and others from above. But it does not follow that the ideas animating practices are consonant. On the contrary, it is precisely because of the oppositional relation between law and order and the rule of law that where both ideas are active, as in the United States today, we observe tension, conflict and inconsistency.

Americans responding to the dangers posed by the Trump administration are working in very different circumstances from those encountered by Burmese who resisted demands for law and order under military dictatorship. Trump represents an unusual threat, but people in the United States have deep reservoirs holding rule-of-law traditions from which to draw, and public institutions that afford them opportunities to fight back, however imperfectly. The stream of demonstrations since the presidential inauguration, associational actions in support of immigrants’ rights, bold journalism, and interventions through the courts all stand in evidence.

But the current administration has resources to draw on in pursuit of its anti-rule of law agenda too. Among them, the most obvious ones include the proliferating regulations to manage and intervene directly and capriciously into the lives of millions of people living in a condition of carceral citizenship (see ), with literally thousands of potential collateral consequences for anyone having a criminal record; the functioning of lower courts as administrative clearing houses through plea bargaining in lieu of trial—a practice that John Langbein (1978) compared with the early modern procedures for judicial torture—and the targeting of entire communities as inherently disorderly and requiring constant surveillance and intervention to contain the threat they allegedly pose to the body politic.

The iniquity of these practices, and their detrimental consequences not only for the rule of law but also for American democracy, is manifest. But the point here is that whereas these practices if observed through a rule-of-law lens give cause for concern, from a law-and-order angle they are unproblematic. The piling up of measures to intervene coercively and arbitrarily into people’s daily lives, overwhelmingly administrative rather than judicial methods for addressing crime, and exogenous imposition of discipline on populations that, it is assumed, will not become orderly of their own accord—an assumption that is adopted into policy even when it is theoretically unsound and empirically groundless (see Harcourt 2005)—are the stuff not of the rule of law but of law and order.

The new administration’s pivot towards the police and other internal security forces, attributing of lawlessness to immigrants, and targeting of “the rioter, the looter, or the violent disrupter” as categories for invention and intervention are all consistent with the logic of law and order. So too are Trump’s invectives against the judiciary following efforts through the courts to obstruct his anti-Muslim program: from a law-and-order standpoint, judges are supposed to work cooperatively with the executive. They should not needlessly obstruct it. The notion that courts ought to temper the exercise of executive power (see Krygier 2015) holds little water for the advocate of law and order. Such thinking invites vulnerability and danger, not the safety and security promised by the Trump administration to those people deserving of it, in exchange for acquiescence to the law-and-order agenda.

The lesson I drew from research in Southeast Asia is that if the practices and verbiage of institutions and officeholders animated by law and order are studied according to rule-of-law criteria then they are liable to be misunderstood. Law and order is not a companion of the rule of law. It is its opponent. Politicians and office bearers motivated to act on a law-and-order agenda are not climbing the same ladder as their counterparts who hold to the values of the rule of law. They are on a different ladder altogether. To understand what they are doing—and to design strategies to respond—law-and-order partisans need to be studied and interpreted on their own terms. Rendered intelligible, they are easier to confront both intellectually and politically. And in America today, it seems to me, to make sense of law and order ought not just be a top priority for scholarly inquiry, but also a matter of no small political urgency.

Nick Cheesman is a Fellow at the Australian National University and in 2016-17 a Member at the Institute for Advanced Study, Princeton (2016-17). This text is adapted from a talk delivered in the After Hours Conversations series at the IAS.

Rudy Elmer, the Panama Papers and Deconstructing Offshore

In this post, Sol Picciotto,  Emeritus Professor of Lancaster University, provides an update on developments pertaining to the case of Rudolf Elmer which he wrote about in a chapter from the recently published The New Legal Realism Volume II: Studying Law Globally.

My chapter on “The Deconstruction of Offshore”, in the book The New Legal Realism 2: Studying Law Globally used the personal story of Rudolf Elmer to open up some of the fascinating story of the construction and more recent deconstruction of the offshore system.

Elmer is one of several whistle-blowers whose revelations have helped to spotlight some of the otherwise arcane practices of avoidance of tax and other state regulatory requirements developed mainly by lawyers, which helped to shape 20th century transnational corporate capitalism.

My chapter began by noting that of 28 encounters with the Swiss courts, Elmer had lost 27 of them. However, the final decision of the High Court of Zurich dated 19 August 2016 was forced to substantially exonerate him. The court conceded that Elmer was not guilty of breaking the strict Swiss bank secrecy law, since he was actually employed by an entity formed in the Cayman Islands. There is an obvious rich irony here, since this was a subsidiary of the Julius Baer Bank, formed to help its clients avoid tax and other laws, yet the Baer Bank was the main complainant in the case against him. Furthermore, a strongly worded report in the Sonntagszeitung of 30 July 2016 castigated the conduct of the case by the prosecutors, who had failed to disclose documents proving Elmer’s employment status.

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Rudof Elmer at the Press Conference of Wikileaks in the Frontline Club, January 2011.

In fact, the Baer Bank has had a bad year. As Forbes reported back in February, two of its bankers pleaded guilty, and the Bank itself admitted that it knowingly assisted U.S. taxpayer-clients in evading taxes, agreeing to pay $547 million in a deferred prosecution deal.

The revelations have not been confined to Switzerland, which is just one node of the offshore secrecy system. In April the world was rocked by the publication of the Panama Papers by the International Consortium of Investigative Journalists. These contained files and emails from the prominent Panamanian lawyers Mossack Fonseca, detailing some of their work for clients around the world. Elmer himself recorded some comments on the implications.

This publicity contributed to the public pressures forcing world leaders to deliver on their promises to end the abuse of this secrecy system. Panama agreed in October to sign up to the OECD’s multilateral convention on assistance in tax matters (although it must still ratify the treaty), and to commit to implement automatic exchange of tax information by 2018. There are still significant gaps: notably the US still stands aside from this multilateral framework, relying on the network of bilateral agreements it has fashioned under the Foreign Account Tax Compliance Act (FATCA), even though many of these are not fully reciprocal. Indeed, the US itself remains in many ways an important secrecy jurisdiction for non-US citizens. Research has shown how easy it is to set up a shell company in the US, and state legislatures are resisting pressures to introduce shareholder registration rules. Despite ringing statements that “the era of bank secrecy is over”, although considerable progress has been made, there is still some way to go.

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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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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LSA Meetings, CRN 28, and a Gathering!

The Law & Society Association Meetings are here! We’re sure all attendees will enjoy the intellectual conversations and beautiful surrounds of Seattle.

An informal gathering is planned at those meetings as a way for “new legal realist” and like-minded people to get to know each other and to build community.  The gathering will take place on Friday the 29th in the bar at the Westin, from 5:45 until 8:00. The idea is just to schmooze, collect names, and share ideas.  CRN 28 has long fostered discussion of empirical methods, and of translating empirical work for law.  As such it is very much a part of the wider NLR conversation.  All are welcome — hope to see you there!  Look for organizers Meredith Martin Rountree and Mary Rose…. And if you are interested but can’t be there, send us an email (newlegalrealism@gmail.com) to let us know of your interest.

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

“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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