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20 June 2006

Comments

Elizabeth Mertz

Hi Geoff --
Sign me up as an idealist also, because I share your hope for diversity of approaches.

On the branch of anthropological linguistics within which I work: (and anyone who hates hearing technical terms from fields with which they aren't familiar should just stop reading here)--
One of our big problems, I think, is that we work within a highly technical vocabulary, and there haven't been a great number of attempts at translation. I hope that this is starting to change. For example, a core article for me is Michael Silverstein's "Metapragmatic discourse and metapragmatic function," found in a volume edited by John Lucy (Reflexive Language, Cambridge U. Press, 1993). I think the article is pretty impenetrable for anyone outside the field, however. (This is very unfortunate -- but to be fair, I wouldn't expect to pick up a highly technical article from economics and understand it without a lot of help --) Probably the most accessible Silverstein article is: "Shifters, linguistic categories, and cultural description," in a volume edited by Basso and Selby (Meaning in Anthropology, U. New Mexico Press, 1976).

A better place to start might be some of the work on language and law -- for example, Susan Hirsch's book "Pronouncing and Persevering" (U. Chicago Press, 1998), or Susan Philips' "Ideology in the Language of Judges" (Oxford U. Press, 1998); both books are more accessible than most in the field, and deal with really interesting issues. Greg Matoesian uses linguistic analysis to show how defense attorneys operate in rape trials (which points to why existing rape shield laws might not be able to fully achieve their stated goals) ("Law and the Language of Identity," Oxford U. Press, 2001). I believe some of the research on linguistic ideology will be summarized in Conley and O'Barr's forthcoming new edition of "Just Words" from U. Chicago Press.

Probably less accessible, but handy repositories of developments in this tradition are: "Reflexive Language" (listed above), "Semiotic Mediation" (ed. Mertz & Parmentier, Academic, 1985), "Natural Histories of Discourse" (ed. Silverstein & Urban, 1996), "Language Ideologies" (ed. Schieffelin, Woolard & Kroskrity, Oxford, 1998), "A Companion to Linguistic Anthropology" (ed. Duranti, Blackwell 2004). Alessandro Duranti also wrote an introduction to the field, "Linguistic Anthropology" (Cambridge U. Press, 1997) -- and there's a wealth of material in journals like the Journal of Linguistic Anthropology, Pragmatics, Text, Language in Society, and others. Richard Bauman and Charles Briggs have done some interesting stuff on the issue of analyzing texts... (I've written a few very brief summaries in some law review articles -- e.g., "Tapping the Promise of Relational Contract Theory," 94 Northwestern U. L. Rev. 909 (2000).)

And I could go on, but I won't! (As you can tell, I'm an enthusiast about the work in my field, and am hoping that more of it will be available in more accessible forms soon --) Thanks for your openness to new ideas -- feel free to e-mail me with questions if you do delve into this material.

Geoff McGovern

Elizabeth, you're spot on about the need for reflection and taking the opportunity to work at understanding other disciplines. Maybe I'm still starry-eyed, but diversity of approaches and opinions is the hallmark of the academy. So, if I can ask, what are the key sources that might clarify the perspective and tradition in which you personally (as the resident lingust) work? A number of studies have already been mentioned, and I look forward to learning from as many of them as I can.

Elizabeth Mertz

Geoff, thanks for pointing us to this discussion and Friedman’s article. It does indeed parallel some of what NLR scholars are trying to do. If I can add one more item to Stewart’s list of NLR goals above, it would be that NLR is trying to encourage a more self-conscious process of translation in both directions. (No surprises here, coming from the resident linguist!) So, one answer to the concern about rifts of various kinds is to say that NLR stands for encouraging more self-conscious communication in order to avoid unproductive divisions. A corollary is that it will take real effort at bridging different approaches if we are to produce good interdisciplinary work. I think that rifts are more likely to happen when we assume that we can just pick up on other disciplines without working at understanding them. We need to encourage a different norm: one that defines high quality interdisciplinary research as grounded in respect for disciplinary differences. (I think Bob explained this very well in his post on Wednesday.)

In this sense, I agree with Stewart’s idea that NLR is best viewed not as a club that includes or excludes, but as a platform that encourages conscious reflection and discussion. Bob’s triad of important reminders serve as useful guideposts: multiplicity of methods, self-critical humility, and connecting empirical research to theoretical propositions. This last point is probably one of the most difficult, as law and social science have very different ideas about how to connect empirical results with broader conclusions (as do the various social science disciplines and subdisciplines). If we don’t recognize this as a problem, we leave scholars free to simply proceed along the lines dictated by their disciplines – happily absconding with the “stuff” of other fields without any in-depth engagement. If we require some reflection on the problem, we have taken at least a small step toward real interdisciplinary scholarship.

Geoff McGovern

Thanks for the link!

William Ford

Barry Friedman's article, "Taking Law Seriously, is available on SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896921

Geoff McGovern

The Law and Courts List serve has initiated a discussion that I believe pertains to the current topic on this blog (thanks to Steven Wasby). The exchange concerns a very recent publication by NYU law professor Barry Friedman, whose article "Taking Law Seriously" appears in the June 2006 edition of Perspective on Politics. His main point is that positive law and courts/law and society scholars need to be more aware of legal scholarship--normative scholarship in particular. Citing Popper in the opening paragraph, Friedman reminds us that we are "not students of some subject matter, but students of problems" (261).

Friedman's appeal to true interdisciplinary collaboration faults Legal Realism (and Herman Pritchett in particular) for the rift between political scientists and legal academics. He writes, "Legal scholars, troubled by what Realism spelled for law's legitimacy, took a normative turn, devoting their efforts almost exclusively to telling judges how they should decide cases" (263).

As a JD and a student of empirical political science, my experience mirrors Friedman's commentary. Legal education showed only nascent interest in empirically analyzing (through both quantitative and qualitative methods) the implications of the normative perspectives. Stewart's comment that law reviews are loath to "develop a more accurate picture of the law in action and the living law" is also dead on. Meanwhile, some (though certainly not all) political scientists have been reluctant to give law the credit it is due, glossing over the institutional constraints imposed through normative standards of professional conduct and various institutional arrangements.

The marvelous and obvious realization is that social science and legal scholarship need not progress along divergent and separate paths.

So I’d echo Friedman’s clarion for closer union between legal scholars and social scientists. Yet I wonder: how will the New Legal Realism prevent the replication of the former split?

Unfortunately, I cannot locate the article online (given its most recent publication), but if you can get your hands (physical or digital) on a copy, it's well worth the read (likewise, Professor Friedman’s December 2005 article in the Texas Law Review--84 Tex. L. Rev. 257--predates and foreshadows many of his arguments, though he directs his constructive criticism to legal academics).

Stewart Macaulay

Many of those who participate in the Law and Society Association are new legal realists in substance, whether or not they want to join the club and be "New Legal Realists." NLR is a platform from which we advocate at least two things: One is a pluralism of methods in the face of a too common assumption that there is one true way that is social science. The second is that "mainstream law review writing" should develop a more accurate picture of the law in action and the living law insofar as it wants to talk about the consequences of proposed legal reforms. I do not see much risk of creating a sect that preaches one true religion. Indeed, I can think of a number of people generally associated with law and economics who are new legal realists, whether or not they want to make common cause with a New Legal Realism. Nonetheless, NLR gives us a platform to think about methods and how legal scholarship might be improved. The theme of the last AALS meeting, for example, was "law in action." Many of us associated with NLR saw it as important to participate and advocate a revised model of the way law works.

We could have used many names as a way to organize a group of scholars. In my article in the Wisconsin Law Review, I tried to show relationships between today's efforts, legal realism and even Wisconsin Progressivism.

Geoff McGovern

Sam Bagenstos has an excellent point, and I've been wrestling with similar questions. Interdisciplinary work certainly is nothing new--social scientists have approached law from their respective disciplines, and legal academics have been doing "Law-and-fillintheblank" work for many years now. Both the social scientists and legal academics have carried on the mantle of non-formalistic scholarship that the Legal Realists initiated. So I wonder, are both de facto members of the "New Legal Realist" movement? Are both the heirs of the old Legal Realism? Are both ELS practioners, even? Are these labels something to which one must subscribe (like CLS), or are they more general classifications of scholarship?

I fear divisiveness in the labelling, particularly when the labels correspond to as yet unclear (in my mind) distinctions and goals. Is there a driving purpose behind the New Legal Realism, and if so, what is it? How would it play out in practice, in legal education, in social science and legal scholarship?

This is not a criticism; I guess I'm just looking for further clarification. I look forward to reading the posts and comments in the week ahead.

Sam Bagenstos

As a pretty avid consumer of social science work, I agree with the various prescriptions in both this post and the Mertz one. But what is helped by calling this (capitalized) "New Legal Realism"? "We're all legal realists now," no? I don't quite see why the group of scholars that self-consciously labels itself "New Legal Realists" is any more the heir of the (old) Legal Realists than anyone else doing law-and-social-science work. If the idea is to say that law and economics (or law and the economistic versions of political science, etc.) is not the only valid version of law and social science, and that we need methodological pluralism, to apply lots of different discplinary perspectives to particular questions, etc., I'm all for it. But creating a self-conscious "New Legal Realist" community could easily turn in a different direction -- one that itself becomes too enamored of its way of doing law and social science and starts talking only amongst itself (except to make claims of its superiority as a method), much as law and economics does now. So my question is a little different from the one that starts this post. I'm not so interested in what makes this New Legal Realism different from (old) Legal Realism -- it would be shocking if so many decades didn't produce lots of changes. My question is what makes "New Legal Realism" different from the interdisciplinary work of other folks in who do law and social science generally, and who associate themselves with the Law and Society movement in particular.

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