We are pleased to announce a new working paper, just posted on our website, from Professor Bill Clune. Bill is the author of our most popular blog post ever, posted in 2013: Law in Action, Law on the Books: A Primer. In our first blog post of 2019, Bill discusses the follow-up from that blog post, a paper posted on January 14, 2019, which outlines how one of the law schools in the U.S. that took Legal Realism most seriously redesigned parts of its curriculum. The redesigned curriculum at University of Wisconsin Law School conveyed to entering law students a more rigorous sense of the “law in action” than could be found in traditional law school teaching. Clune’s historical example takes on special significance in the current time, when law schools are (hopefully) turning their attention once again to ways of redesigning the curriculum so that it teaches students more about how law actually works in practice. We at the NLR Project are pleased to begin this year with a discussion that bridges last year’s focus on law school teaching and our general interest in the history and present manifestations of the legal realist tradition.
The Next Step in Comparing Law in Action with Law on the Books: A History
Bill Clune, January, 2019
This blog post introduces a new paper, just posted on the New Legal Realism Project website (and on SSRN), entitled Legal Realist Innovation in the Wisconsin Law School Curriculum 1950-1970: Four Influential Introductory Courses[1]
This new paper began with a blog post written for the New Realism Project, Law in Action, Law on the Books: A Primer (June, 2013),[2] an essay that relied heavily on Macaulay’s 1963 article on non-contractual relations,[3] Jack Schlegel’s book on realism and empirical social science,[4] and a team of informal advisors (Howie Erlanger, Beth Mertz, Stewart Macaulay, Bill Whitford, John Schlegel). The current paper, just posted in January 2019, should be of interest to many readers of this blog because it highlights visionary law school courses that reflect the goals of legal realism/ law in action and thereby suggests how law students might enhance their legal education.
I refer to the 2013 blog post early in the new paper as a way of understanding legal realism:
“In an earlier blog, I said that law in action can be thought of as empirical study of the full range of legal and law-related decisions, appellate cases, trial cases, lawyers’ strategies, clients’ decisions, police conduct, corporate managers’ decisions about litigation, lawyers’ decisions about commercial transactions, and so forth. Empirical analysis examines the decisions and their consequences and the full range of influences motivating and constraining them, such as more or less reliance on legal precedent and text, pragmatic assessment of facts, subjective values, cultural and organizational influences, economic incentives, and disparities in power and resources. Realism also had a normative element, the evaluation of decisions against policy goals, standards of justice, and social welfare, as when Roscoe Pound called upon law to meet social needs in his coining of the term law in action[5] and when Llewellyn said that contract law should promote security of transactions.[6]”
The new paper is about four courses developed by faculty of the Wisconsin Law School from about 1950-1970 that reflected the law-in-action instructional goals of American legal realism: Legal history by Willard Hurst; Criminal Justice Administration by Frank Remington, Herman Goldstein and colleagues; The Wisconsin contracts course by Stewart Macaulay, Bill Whitford and colleagues; Legal Process by Willard Hurst, Lloyd Garrison, Carl Auerbach and colleagues.
The
paper covers four topics: 1) a contrast between legal realist and traditional
goals for legal instruction, 2) examples of the legal realist goals from the
Wisconsin courses, 3) how Wisconsin became a realist-friendly environment, and
4) a conclusion about the extent of legal realist influence on the modern law
school curriculum and the importance of legal history as a law school subject.
Eight realist/ law-in-action themes in the courses
are discussed: 1. Major flaws in the legal reasoning of appellate decisions
(e.g., as internally incoherent, unpredictive of later results, and politically
biased under the guise of formal reasoning); 2. The importance of practical
remedies over theoretical rights; 3. The importance of legal agencies and law
practice beyond appellate and other court decisions (e.g., legislation,
administrative law); 4. The importance and impact of discretionary decisions of
lower level public officials (for lawyers and citizens); 5. How private actors
react to law and influence outcomes (and the role of lawyers in advising them);
6. Growth of legal policies over time in relationship to the wider society
& economy (legal history); 7. The gap between social needs and justice and
real legal outcomes and workable legal reforms (political progressivism); and
8. The importance of empirical research on law, interdisciplinary research and
social scientists on law school faculties or in collaboration with law faculty
members.
[1] Also posted on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3313483
[2] https://newlegalrealism.org/2013/06/12/law-in-action-and-law-on-the-books-a-primer/
[3] Macaulay, S. (1963), Non-contractual Relations in Business: a Preliminary Study, American Sociological Review, volume 28, no. 1.
[4] Schlegel, J.H. (1995), American Legal Realism and Empirical Social Science, University of North Carolina Press, Chapel Hill & London.
[5] Pound, Law in Books and Law in Action , 44 Am. L. Rev. 12 (1910)
[6] “I would not be understood thereby to deny that those three words are highly useful, or that they refer to very significant aspects of our life. But I am very eager to be understood as questioning how much is accomplished, for any given specific problem, by resting merely on the magic of those words.” Llewellyn, op. cit. at 445.