This essay reframes part of the U.S. legal realist legacy through a provocative comparison of foundational thinkers and current legal realists. It challenges readers to ask what stops today’s realism from achieving recognition as continuing the older tradition. In particular, this essay focuses on how both movements use knowledge of how law works in action to inform law reform efforts. It begins with the example of Karl Llewellyn and Soia Mentschikoff’s work on the famous Uniform Commercial Code -- as narrated by sociolegal scholar Marc Galanter. Galanter also describes the many threads of legal realist work at the University of Chicago at that time. Galanter himself is part of a “bridge generation” that continued the realist project within the Law & Society movement, which is briefly reviewed. The essay then highlights work by two new legal realists. Thomas Mitchell has led a major law reform project, based on empirical research, to prevent erosion of poor - often African-American - landowners’ rights in the rural U.S. south. Bernadette Atuahene uses pathbreaking urban ethnographic research to guide legal interventions that address illegal foreclosures on homes in underserved communities. Questioning unexamined assumptions, we uncover a vibrant legal realism continuing from earlier times to now.
Elizabeth Mertz (with Marc Galanter)
Marsha Mansfield and Elizabeth Mertz
From its inception, the New Legal Realism (NLR) has included a focus on law teaching right alongside its concern with bringing law and social science together in scholarship and in law reform. In all three of these emphases, NLR follows in footsteps laid down by the original U.S. legal realists. In particular, legal realists like Jerome Frank advocated for clinical education as a way of bringing legal education closer to issues of law in action, law in the real world. While this effort was partially successful, the growth of clinical education since that time has generally proceeded in parallel to standard doctrinal teaching, with clinical faculty occupying a separate track from the law faculty who have traditionally occupied the tenure-track jobs, while largely publishing on and teaching doctrinal law. This unfortunate bifurcation replicated the divide between law-in-books and law-in-action described by original realists. This chapter describes a collaborative teaching effort that combined clinical, legal doctrinal, and social science training as an effort to overcome that divide in and through law teaching. Like other NLR scholars, Mansfield and Mertz suggest that teaching can itself be a practice that contributes to important new interdisciplinary knowledge.
Shauhin Talesh, Elizabeth Mertz and Heinz Klug
This introductory chapter shows the distinctive qualities of New Legal Realism (NLR), captures where it stands around its fifteenth anniversary, and explains the goal of the larger book. In doing so, we demonstrate NLR’s fruitful continuation of the legal realist adventure as it reaches beyond historical and national boundaries to form new international conversations, based heavily on law-and-society networks and traditions. In addition, we provide a contrast to Empirical Legal Studies, because the NLR project clearly visible in this volume does not just use quantitative methods to study lawyers and legal institutions as they have been traditionally viewed. Instead, it includes chapters by social scientists and law professors using social science theory and multiple methods to understand law and address legal problems - across an impressive variety of subject areas such as immigration, policing, globalization, legal education, and access to justice. Finally, it offers a series of chapters from scholars - across an array of law and social science disciplines - explaining what particular disciplinary approaches offer to the process of translating law and empirical research. Overall, this volume highlights the powerful virtues of new legal realist research and an appreciation and awareness of the challenges of translation between social science and law.