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19 June 2006

Comments

Elizabeth Mertz

Good questions. In first year classes, there are fairly clear linguistic markers indicating that social science information is marginal to the core discussion. (Not surprising, since professors commonly understand their task in these classes as the teaching of doctrinal analysis -- "how to read a case" with all that this entails). In presenting the material from my study, I've had a number of law professors tell me anecdotally that they find it difficult to overcome a big gap between first-year and other teaching in law school. That is, they find it difficult to integrate their research interests -- whether social science or legal philosophy or literary theory or critical race theory --in any integral way during the first year. They report that this changes in upper level classes, particularly in seminars. (I also suspect, after looking at Christa McGill's research, that it is in these upper level classes that we can see most clearly the curricular and pedagogical correlates of status hierarchy differentiation among law schools. I don't find this in the marked fashion some would predict when analyzing law teaching across the hierarchy of law schools represented in our study. But then we only studied first-year teaching.) More on this topic tomorrow!

William Henderson

Beth, thanks for your reply. I am very interested in your research on law school classroom dynamics. It is heartening to see clear evidence of realism in the classroom. I guess I would ask whether realism comes in through a professor's quip or anecdote, or whether realism (or empiricism) were strong influences in course and casebook organization. In other words, how integrated is our scholarship with our roles as teachers?

I can wait until Thursday for an answer.

Elizabeth Mertz

Bill and Michael, you raise good points. I second Michael’s recommendation; for more on Schlegel, Kalman, and the general issue of the realists’ successes and failures, you can also see Stewart’s article in the NLR Symposium (2005 Wisc.L. Rev. 365). (My colleague Chris Tomlins at the ABF has also done some interesting research on the realists.) Stewart quotes Lawrence Friedman, who noted that in many ways legal realism “ended up defeating its enemy almost totally” in that many key tenets of realism are accepted as banalities today. Yet, I take seriously Bill’s (and Schlegel’s) caveat that this defeat did not extend to core aspects of legal training. Bill, you attribute this to institutional incentives; I wonder what you think of Jack Balkin’s argument that law schools have successfully resisted colonization by the social sciences because “legal knowledge is professional knowledge” (53 Wash. & Lee L. Rev. 949 (1996)). This is a different kind of institutional incentive than you seem to have in mind, and probably one that would be more difficult to change.

I made my comment in the hope of collecting readers’ own observations about the successes and failures of the original realists. I have listened to hours and hours of tapes of law school classes for my study of legal education. All of the first-year Contracts professors in the study made frequent references to the way that law in practice undermines the picture painted by legal doctrine. Many cited social science studies; and quite a few casebooks these days include noted material that references social science of various kinds. My study actually tracks the way in which social context is included -- but always at the margins -- in law school language. Similarly, clinical education is ubiquitous in law schools, but marginalized – another “mixed” example of realist results. So, in a sense, I’m asking how we define “success” for any attempt to bring social science into the law schools. Does it mean systematic training in social science? Does it mean alteration of the core first-year curricular categories, or inclusion of social science within the existing curriculum? What about clinical education? And how far is it reasonable to go in asking nascent lawyers to become expert at social science method and theory? (We will hopefully discuss this in more detail on Thursday.)


William Henderson

Re Beth's point on my reference to failure of the original realism: Perhaps I am overstating it. Sure, the Langdellian notion of law as science is now dead, and realism gets the credit.

But the empirical aspect of realism failed, see Schlegel and Kalman; and attempts to substantially alter the legal curriculum by integrating the social sciences, or other disciplines generally (e.g., business management or finance) into the classroom failed as well. Indeed, Langdell is alive and well, especially during the 1L year.

Why did these aspect of realism fail? Insitutional incentives. And arguably the problem is worse today, because scholarship is privileged over curricular innovation.

Michael Heise

Along with many others, I look forward to seeing how the NLR project takes shape and unfolds over time. Also, for another rich scholarly treatment of the (original) legal realists (and another take on whether they--or the "realist agenda"--were "complete failures"), I recommend John Schlegel, American Legal Realism and Empirical Social Science (1995).

Elizabeth Mertz

Hi Bill -- thanks so much for your comment. You've provided the perfect segue for Stewart's post tomorrow, which will in part address issues about the original realists.

I agree with much of what you've said completely. A core difference between the old and new realism is our stronger commitment to the practices and norms of the social sciences. This means, as I noted in my first post, that you remain willing to rethink your model if what you find "on the ground" doesn't fit. It also means a more sustained and disciplined engagement with the fields you're interested in translating.

It won't surprise you that we had extended discussions initially about what to call our endeavor. Although there are certainly ways we would want to distinguish ourselves from the "old" realists, I think there are some important themes in common. First, the realists tried to draw on social science to develop a more socially-grounded picture of how law operates, rather than engaging in imaginative exercises. (Notice how common these imaginative exercises still remain in legal scholarship and teaching.) Second, they were willing to draw on a variety of social science fields and methods. And, finally, they were concerned about translating the findings of social science into policies that would benefit the public. One could certainly argue that there was room for more sophistication on all three counts. Of course, as Stewart will no doubt remind us, we do have the benefit of decades of sociolegal research at this point, unlike the original realists. On the other hand, that means that it behooves us to make use of our advantage.

As I understand it, NLR scholarship also moves beyond the original realists in that it problematizes translation in two directions: that is, it asks both law professors and social scientists to be more aware of the assumptions which they might not share when attempting to collaborate in studying law. In addition, this process of remaining critical about the translation process extends to the policy domain as well. (There was an interesting discussion of some of these issues in a Roundtable in the Wisconsin L. Rev. Symposium.)

Another point with which I'm in complete agreement is your comment that we need to move beyond scholarship to address law teaching. The First NLR Conference had a session entirely devoted to teaching issues, at which Howie Erlanger, Louise Trubek, and John Conley presented. Ed Rubin, who has been an active contributor to NLR efforts, recently put together a fascinating conference at Vanderbilt that focused on rethinking legal education, in part by using empirical research. There are (at least) two different ways to think about this: first, how can we use empirical research on teaching itself to rethink how we train law students, and, second, to what extent can / should we try to incorporate training about social science into the law school curriculum? We are planning to spend Thursday this week on the topic of NLR and law teaching, so stay tuned.

There is one issue, though, that I'm not so sure about ... and that is the extent to which the original realists were complete failures. Don't you think that there are some ways in which -- even at the fringes -- law teaching and legal thought were impacted by the realist agenda? I'd be really interested to hear what people think about this.

**Looking ahead** Stewart will post tomorrow, Bob on Wednesday, and on Thursday we are planning a discussion of NLR and law teaching. We'll wrap up the week on Friday with a discussion of "Building Interdisciplinary Communities."

William Henderson

Elizabeth,

Welcome. We are really going to enjoy this topic. At few months ago at AALS, we discussed why the empirical component of the first wave of legal realism failed. Unfortunately, we did come to any conclusions.

I am just finishing up Laura Kalman's Legal Realism at Yale, 1927 to 1960. In a nutshell, Kalman concludes that the empirical aspect of legal realism was dead by the early 1930s, primarily due to (a) lack of funding due the Depression, and (b) lack of faculty support at Yale and Columbia, largely because the early realists resisted findings that challenged their own policy goals. Empirical research was denigrated as "counting."

I suspect many of us would have a hard time articulating the core value of realism, old or new. Kalman states that the strongest element of realism is its rejection of formalism--i.e., law as an autonomous discipline or science. What else--that judges are influenced by policy preferences, presumably more so the higher the court? Perhaps, but not much else jumps to mind.

In my opinion, NLR can do a valuable service by building realism on a solid empirical foundation, including norms of research. Realism should be about accurate understanding of legal and social processes. Further, NLR needs to devote substantial resources to how realism affects the education and training of law students. If the NLR revolution is just about scholarship, it is going to fail (again). bh.

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