Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug
Chapter 2: Realism then and now: Using the real world to inform formal law
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.
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