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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Mission Matters: Tejani on For-Profit Legal Ed Exceptionalism

One important theme in New Legal Realism is the issue of legal educational reform, as seen in a number of past blog posts.  Like the original legal realists, our group worries about how to bring the “real world” into the law school classroom, and about how legal education is supporting and/or failing future generations of lawyers.  In this post, NLR blogger Riaz Tejani takes on the questions raised by today‘s for-profit law schools, asking whether we should be paying more attention to what is happening to the students in those schools.

Are We All For Profit?

“Go Home Law-Mart!” So proclaimed a short film released by the alumni association of Charleston School of Law when the corporate owner of three for-profit ABA law schools sought to acquire theirs as its fourth institution.  Although the proposed buyout was pretty noteworthy, equally sensational was the ensuing chorus of student, faculty and community voices against it.  Their collective action challenged a widespread view in higher education today that, when it comes to neoliberalism, everybody’s doing it.

Administrators at for-profit colleges and trade schools like to say ‘all schools are for-profit’.  All institutions, they argue, depend upon a net surplus of funding after salaries and operating costs are deducted.  Labels like “for-profit”, “not-for-profit”, and “nonprofit” should not, they stress, mislead people to impute greed on one side and charity on the other.  In the context of American law schools—cited widely as University “cash cows” for high tuition and relatively cheap operating costs—this suggestion is plausible.

But with thousands of student lives and millions in federal loan dollars at stake, claims dwelling in the semantics have been obscurantist.  This may be difficult to avoid: few can readily discover the day-to-day inner workings of a proprietary institution, much less a law school.  To properly understand how the for-profit movement is affecting legal education, deeper study will be useful. In my new study I have collected ethnographic observations of one of the six ABA-accredited “for profit” schools of law and, in the process, learned how little the equivalence based on surplus creation holds up.  The goal of institutions—their underlying purposes—influence everyday life and knowledge transmission therein.  In education, mission matters.

Among my informants, students describe with such passion the way their voices have been dismissed in the face of institutional (i.e.: local administrative, corporate and shareholder) objectives.  One recurring example has been protest over the firing of valued tenured professors, and the understanding that those were the most strident student advocates amid a recent wave of corporate-mandated curriculum change.  As people try to make sense of their own marginalization, power dynamics latent in corporate “for-profit” models becomes an unassailable explanation.  Those observations shed valuable light on the neoliberalization of higher learning in a sector most proximate to the New Legal Realism.  Do the rules taught and learned sound the same?  Are professional ethics communicated differently?  Are global citizenship and social justice conveyed as thoughtfully?  And is legal practice a means of serving carefully drawn policy goals or is it treated as an end in itself—a widget oriented quality control test for Six Sigma ninjas?  These questions reward careful field research.  But I wonder if the latter is even necessary to knowing whether, really, we are ‘all for-profit’.

If by profit one only means “benefit”, then closer study might be important to distinguish between types and magnitudes enjoyed by stakeholders.  But if by profit one means surplus—as do most of Merriam-Webster’s definitional bids, then I don’t think it is that complicated.   The question is not whether there remains a surplus at the end of the (school) day, but where that travels in the global web of financial linkages characterizing our era.  In the case of most public and private law schools, financial surplus remains either in the degree program, at the campus level, or in the university system that harbors these.  Students, whose above-cost tuition dollars help make up that surplus, should (in theory) see the value they helped generate accrue in facilities or cultural capital around them.  During times of austerity, those amounts still help to cover gaps at the local or relatively local level.

Under the for-profit model schools belong to global private equity firms whose managers have arranged capital commitments from institutional investors (often wealthier school endowments!) with guarantees of steady, sometimes lavish returns on investment.  This means two things.  First, surplus value generated at the local level is shipped off to equity investors on a regular basis.  Second, in times of fiscal austerity, this steady flow of high returns cannot be interrupted.  The risks of conducting the business—with its cycles of growth and austerity—shall be borne not by owners or administrators but by students. This may be just fine for some who feel, under a contract view of education, “you get what you pay for”.   But by likening themselves existentially to non-profit and not-for-profit institutions, for-profits obscure this unique allocation of risk.   They also render student transactions with themselves less than fully informed.  Exacerbating this is a deficiency of information about daily life in the schools.  Finally, though social media and word of mouth allow more data than ever to flow through student hands, law school is still something one experiences only once at only one institution, and comparative perspective for most students is of limited use post-matriculation.

For prospective students, however, transparency is of obvious value.  For them, benefits of enrollment in some of those schools—with part-time programs, non-traditional colleagues, solo-practice oriented instruction—might still be decisively attractive.  But those students should receive honest information about the risks involved, and the social (i.e. sociological) condition of for-profit legal ed.  With that they can decide for themselves whether and where their enrollment will be, within their own moral economies, truly “for-profit”.

Additional Conversation: Hajjar and Mertz Respond to Margulies

Joe Margulies: I view this as a very curious thing.  We all recognize that emotional attachments figure in the social construction of meaning, including in the meaning of legal texts.  Anyone who doubts that should read, as I did, the blogosphere’s reaction to the Hobby Lobby decision.  And we all recognize we have our own emotional attachments.  The net of those two observations is nothing so prosaic as to wonder whether it is possible to ignore our emotional attachments in the name of ‘objectivity’; I think that’s silly.  The more curious thing is that, in acceding to our emotions, we fall back on an embrace of the mythologized notion of law as above politics.  It’s as though that myth provided a kind of safe harbor for emotional (secular) aspirations.  So curious.

Lisa  Hajjar: I don’t have the same recollection of the LSA panel as one in which the participants expressed a die-hard fidelity to law, nor do I know if that “mythologized” view of law fits me or not–it might. But “me” from my own perspective likes the law for two main reasons: it provides a lens through which to judge the world (political in the sense of Kramer’s quote that you cite above), and it has the potential to do some very good harm (while also doing vast amounts of bad harm). For example, I am an enthusiast for a perpetrator-centered perspective on rights; rights laws are valuable for their potential/capacity to hurt rights violators. (See, for example, http://www.jadaliyya.com/pages/index/247/a-meditation-on-the-importance-of-the-perpetrator-.) If anything, I would be an instrumentalist rather than an idealist.

Joe: I think that requires some unpacking before I really understand it.  I agree that rights laws have the potential to hurt rights violators.  So, as an example, I would point to a law that said, “Thou shall not refuse to serve African-Americans in your restaurant, and if you do, we’ll fine you $10,000 per incident,” and agree, that law has the potential to hurt rights violators.  But what we all know is that such a law has meaning and substance only in operation, and the gulf between what the law says on paper and what happens in real life is the gulf between myth and reality.  That gulf, I suppose, is captured by your qualifier word, “potential.”  The law has the potential to do good, like Brown v. Board had the potential to do good.  And my point is that, for emotional reasons, we attach ourselves to the myth of Brown rather than the reality; we attach ourselves to the myth of the torture memo rather than the reality, etc.  That’s one lesson I took from the LSA conference.

Lisa: My previous comment requires some repackaging. I am interested mainly in what we can call “the harder human rights”–torture, war crimes, crimes against humanity and genocide. And it is to those matters especially that I formulate my affection for a perpetrator-centered perspective on rights and the good harm theory. Sure, racist discrimination is awful. But it is not “legally” the same as torture in that it is not comparably criminalized.  Joe, I have benefited so much from your work. But one way in which I invoke your work in my own is by arguing in favor of the “sociological perspective”: to think about law NOT as a lawyer (what the law does in courts, for example) but what the use of the law does in the world, which suggests anything from counterfactuals (e.g., what would “the law” be like today if not for those who used it in Rasul, Hamdan, and Boumediene, as well as the various efforts to apply universal jurisdiction to American torturers) and the longue durée (e.g., it is possible to act against torturers today in ways that were inconceivable two decades ago, regardless of whether Cheney and Co continue to walk free).

Beth Mertz:   This is a great conversation.   My own question is how to move between the rhetoric or language of law and the “law in action” perspective in a way that does justice to the fact that the language still matters, even if it doesn’t matter in the way the ideology wants us to think it does. AND I’m concerned with the further question of whether to entirely cede the conversation about doctrine to groups that believe the ideology or myth (and ignore law-in-action).  So, for example, some progressive people started using a language of originalism once that was adopted in some  SCOTUS opinions — not because they necessarily accepted originalism, but because to leave the “other side” unanswered in its own terms simply meant conceding altogether. So, why not say that “even in your own terms, this makes no sense”?  Of course, even taking this attitude might be seen as legitimating the underlying ideology, which I think is what’s bothering Joe.  So it’s a tough double-bind at a strategic level, not to mention at an intellectual level. These are the tough questions about really translating between social science and law that NLR folks have been struggling over.  I’d also like to hear more from Lisa about the distinction she makes between criminalized or “hard” rights and others.  I’m not sure I see that difference as altering the underlying dilemma we’re discussing here, which I think we face no matter what kind of rights we’re discussing.

Joe:  Thanks, Beth.  This is at the core of so much of my thinking.  It’s a puzzle to me.  I think the complexity arises from the fact that doctrine matters in different ways for different types of disputes.  Law professors tend to look at SCT decisions.  Ironically, that’s where doctrine is least important, since that’s where popular culture takes over and assimilates the case into partisan narratives, as has been done countless times, most recently in Hobby Lobby.  But we know from your pal Sally Engle Merry, and from any public defender, that at the “lower” levels, doctrine matters a great deal.  It helps to settle thousands of routine cases every day.  No one thinks doctrine alone explains these outcomes, but it clearly contributes, and the social science evidence about implicit bias suggests that it matters most when the cases are simplest.  The political scientist in me wants to develop a model to explain all this, while the historian doesn’t really think that’s necessary. But the lawyer in me says we need to think carefully about the work we ask the single word, “doctrine” to do.

I also think this figures into the second part of your question.  If we can refine what we mean by doctrine, I think we can develop a language that allows us to take doctrine seriously when we’re talking w colleagues but not abandon what we know about law-in-action.  And I hope we can be more sophisticated than to say, “Well, it’s like the old nature-nurture debate.  Both matter some.”

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Joe and Beth are regular bloggers here at “New Legal Realism Conversations.”  Lisa is on the Sociology faculty at University of California-Santa Barbara. Her areas of expertise include  sociology of law, law and society, international and global studies,  and political sociology. Her research interests include human rights,  international law, torture, war and conflict. She is the author of  Courting Conflict: The Israeli Military Court System in the West Bank  and Gaza (University of California Press, 2005) and Torture: A  Sociology of Violence and Human Rights (Routledge, 2012).

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Joe Margulies
Cornell University
July 2014

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

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

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

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

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

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!