Law in Action: Our Foundation, Our Future

BY NICOLE ETTER

 

There’s an old story about the University of Wisconsin Law School dean and the Harvard Law dean meeting in the 1960s while Wisconsin professor Willard Hurst was still chipping away at his fifteen-year project on the lumber industry. The Harvard dean reportedly asked, “Why are you letting him get away with that?”

In 1964, Hurst finally published his 946-page tome, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915.

“Out came Willard’s landmark work revolutionizing the field. And the next time the two deans met, the Harvard dean asked, ‘How do you get your people to do that kind of work?’” recounts legal anthropologist Elizabeth Mertz, the John and Rylla Bosshard Professor Emerita.

Deep Roots

It wasn’t the first time — or last — that UW Law scholars would go against the grain. With its focus on how law is applied in the real world, the Law School’s “law in action” tradition has deep roots stretching back more than a century, and its branches have reached out to shape
the law and society, legal realism, and new legal realism traditions worldwide.

It was only natural that such an outwardly-focused view would find fertile ground in Wisconsin. “It is a state law
school which always had the Wisconsin Idea that the boundaries of the university are the boundaries of the state,” explains Professor of Law Emeritus Stewart Macaulay. “If you go way back, the Wisconsin tradition was that you were paying attention to what’s happening in the entire state and not just on the UW campus.”

Professor Emeritus Stewart Macaulay
Professor Emeritus Stewart Macaulay

And that meant a different kind of legal education from the one that was delivered at many other universities that emphasized legal doctrine. “Law in action means to go out and see law as delivered or not as delivered,” Macaulay notes. “If you’re training lawyers, the formal law is a tool they need, but it’s not enough. The idea is to get some notion of what’s going on out in the world.”

“If you go way back, the Wisconsin tradition was that you were paying attention to what’s happening in the entire state and not just on the UW campus.” – Stewart Macaulay

It was UW Law’s national leadership in this area that attracted Mertz to Madison, even when it meant a long commute from Chicago. “Law in action comes in and out of vogue, but Madison stays steady on this,” she says. “We’re not just sitting in our offices spinning out theories that may play well in the legal academy. We’re trying to ask what’s happening in people’s lives because of things that lawyers and judges and legislators do, and what can we do to study that in a way that makes law work better for the people? I was so excited by that, and there was no law school in the country that could have taken me away from Wisconsin
as a result.”

The Wisconsin Idea

The Law School, like the rest of UW–Madison, was driven by the Wisconsin Idea, a commitment to doing work that improves the lives of people in Wisconsin — and beyond. “Much goes back to the progressive academics who pushed for legal reform during the turn of the century,” Macaulay says.

In 1911, Professor Oliver Rundell led one of the first “law in action” studies, an empirical study of delay in the criminal courts. The Law School embraced interdisciplinary research and partnered with colleagues in other departments as early as 1907.

That work was not purely theoretical; it had real world value. In the 1930s, law and economics faculty worked together to create the nation’s first workers compensation system. “In a lot of universities, the law school is an isolated place,” Macaulay says. “We’ve had a history of working with economics, sociology, political science, and others.”

That work produced policy innovations that improved lives. In the early 1920s, the Law School became the first in the nation to offer a course in labor law, and Professor Nathan Feinsinger became a sought-after arbitrator who helped resolve major strikes nationwide during the 1940s, ’50s and ’60s. “Whenever there was a major strike, he was the one called in to fix it,” Macaulay recalls.

In 1937, the arrival of Hurst, considered the founding father of the field of American legal history, pushed the Law School even more strongly toward law in action. Hurst championed a people-first perspective and “looked at law from the bottom up,” says Macaulay, who worked with Hurst for decades.

“If general ideas and theories about what’s going on in society are going to be anything other than moonshine, they have to be rooted in hard-bought knowledge of what in fact is happening in people’s lives,” Hurst told former UW Professor Hendrik “Dirk” Hartog in a 1993 interview, later published in Law and History Review.

Mitra Sharafi
Professor Mitra Sharafi

Soon after arriving, Hurst created a Law in Society course, which explored the history of law related to industrial accidents. “Students didn’t like the course,” he noted in his interview with Hartog. “It wasn’t a law course in their point of view, and yet in later years, time and time again the students would come back to me and say, in law school I didn’t know what the devil that thing was all about, but now that they were out and into practice, they thought it was the best one they had.”

“If general ideas and theories about what’s going on in society are going to be anything other than moonshine, they have to be rooted in hard-bought knowledge of what in fact is happening in people’s lives.” – Willard Hurst

Hurst mentored many UW Law faculty, including Macaulay, Lawrence Friedman, and Joel Handler, and used his grant funding from the Rockefeller Foundation and others to help launch younger colleagues’ projects. Many of his mentees became leading scholars, notes legal historian Mitra Sharafi, a UW professor of law.

“Hurst created this little solar system with junior faculty in his orbit, and he was very supportive of these junior scholars. He’d take them to lunch and ask about their ten-year plan and what book project they were going to work on next,” Sharafi says.

Growing Momentum

That included Macaulay. As a newly hired twenty-six-year-old assistant professor, he used the same textbooks in his contract law class “that everyone else was using.” While chatting with his father-in-law, who was then the general manager of S.C. Johnson and Co., about the concept of contract damages, his father-in-law was skeptical about the classic analysis of contracts.

Stressing the power of the norms and sanctions involved in longterm continuing business relations apart from what the law provided, he explained that “if you have to talk to a lawyer you will not be where you would be when the contact was formed.” After the conversation, Macaulay went back to Hurst, who suggested he do some additional research on how contracts were used — or not used — in the field.

With financial support from Hurst’s grant, Macaulay traveled the state interviewing business leaders about their avoidance of formal contracts and the other methods they used to cement business relations. The resulting landmark study, “Non-Contractual Relations in Business: A Preliminary Study,” would become one of the most cited in the law and society canon.

“Willard was delighted that I was doing this kind of thing,” Macaulay says.

Professor Beth Mertz
Professor Beth Mertz

In 1949, Professor Frank Remington joined the Law School faculty. A UW grad himself, Remington was heavily involved in writing criminal statutes at the state and national level, but he encouraged his students to look beyond the laws on the books.

“It’s a very modest school. It doesn’t go around boasting … but its impact is rock solid and has quietly shifted the whole community.” – Elizabeth Mertz

“Frank Remington used to say, if you want to understand the law, read the code but then ride in a police car on a hot summer night and see what happens,” Macaulay says.

What Hurst did for legal history, Remington did for criminal justice administration: he was a pioneer in the field. As field research director for the American Bar Foundation’s pivotal study on the administration of criminal justice, Remington focused on criminal law in action, from people’s experiences with police to the criminal courts to sentencing, probation, and parole.

At the time, UW was one of a handful of law schools nationally that were focused on the law and society approach, and in 1964, the Law and Society Association was born. UW Sociology Professor Harry Ball was key to its founding and served as its first president, and many UW Law faculty have served terms as president over the years.

Tonya Brito
Professor Tonya Brito

During the 1970s and 1980s, leading law and society scholars at UW Law included David Trubek and Marc Galanter. “Marc’s ‘Why the ‘Haves’ Come Out Ahead’ is one of the great articles ever written in the law and society tradition,” Macaulay says. Trubek and other scholars worked on the Civil Litigation Research Project, a large-scale study of civil disputants and their attorneys that
found that most people prefer to settle disputes outside of court.

“Faculty who adopt a legal formalism approach to the law may not place the same value on legal realism, potentially even seeing it as being unfairly critical simply because it doesn’t take the law at face value.” – Tonya Brito

UW Law’s pioneering influence on the field is undeniable, Mertz says. “It’s a very modest school. It doesn’t go around boasting,” she notes. “But its impact is rock solid and has quietly shifted the whole community that’s now the Law and Society Association. They’ve also played a huge role in the law and feminism movement and law and critical race movement, and both of those care deeply about what’s happening on the ground.”

Keeping the Tradition Alive

As decades passed, the popularity of the law in action approach grew. “Today there’s hardly a law school that has no academic tradition in law and society,” Macaulay says. “We’re not as unusual as we used to be, and in a sense that’s victory.”

Even as the Law and Society Association’s ranks have swelled to thousands, UW Law faculty continue to play lead roles: Howard Erlanger, Emeritus Professor of Sociology and Voss-Bascom Professor of Law; Tonya Brito, the Jefferson Burrus-Bascom Professor of Law; and Sharafi have all served as trustees of the association, and Evjue-Bascom Professor of Law Heinz Klug was co-chair of the LSA’s 2019 annual meeting. “Our faculty has been much more involved than those at many other law schools,” Sharafi says.

Current and former UW Law faculty are also active with the New Legal Realism Project, which is affiliated with the LSA and which includes a blog and podcast devoted to interdisciplinary, empirical research on law and society.

Still, the approach isn’t celebrated by every law school. Legal education has moved in the direction that Wisconsin in a way inaugurated, but there’s still a bit of reluctance for some faculty,” Brito notes. “Faculty who adopt a legal formalism approach to the law may not place the same value on legal realism, potentially even seeing it as being unfairly critical simply because it doesn’t take the law at face value. It’s like pulling back the curtain in the Wizard of Oz … reality is messier and more complex.”

UW Law has continued to invest in interdisciplinary research on the impact of law on real people. In 2015 and during her tenure as director of the Institute for Legal Studies, Brito launched the Law & Society Graduate Fellows Program, a two-year fellowship designed to mentor and support the research of up-and-coming graduate students from departments across campus. The program is co-sponsored with the East Asian Legal Studies Center and the Global Legal Studies Center.

The J. Willard Hurst Summer Institute in Legal History brings together a dozen junior scholars for an intensive workshop in Madison every two years. It’s a joint effort of UW’s Institute for Legal Studies and the American Society for Legal History.

“It’s really intense — it’s exhausting but fantastic,” Sharafi says. “That started because of Hurst’s estate, and that has shaped generations of legal historians. The people who come through that program come from all over the world, and many become leaders in the field.”

To do this kind of work right takes time and resources, Mertz says. At other law schools, “there is a huge temptation to dilute quality in the social sciences because they don’t have the support for publishing, getting grants, and going to conferences,” she says. “But here, going all the way back to Willard Hurst, who revolutionized legal history, up to now, the Law School has supported people who wanted to do in-depth work in the social sciences. It’s a huge investment — you can’t just go and dabble and talk to a few people and know what’s happening in the field.”

Faculty continue to keep up the tradition through a wide range of projects. Sharafi is working on a book on the history of forensic science in colonial India, and she’s active in the university’s South Asia Legal Studies Working Group, a collective of nearly a dozen scholars who meet monthly to workshop drafts and brainstorm together.

“…going all the way back to Willard Hurst, who revolutionized legal history, up to now, the Law School has supported people who wanted to do in-depth work in the social sciences. It’s a huge investment — you can’t just go and dabble and talk to a few people and know what’s happening in the field.” – Elizabeth Mertz

Brito is wrapping up an empirical sociolegal project she has been working on for the past five years: a longitudinal study examining the civil justice experiences of low-income parents in child support enforcement cases. She studied and tracked cases in two Midwestern states: one that offers the right of representation to low-income parents in nonpayment contempt actions, and one that does not. One unexpected discovery was that litigants in the state that provides legal representation don’t always get lawyers even when they are entitled to them.

Brito and her research team observed court hearings for nearly five years and conducted 145 interviews with parents involved in the cases, attorneys representing both sides, judges, family court commissioners, and others. That firsthand data collection was essential to understanding the legal process and litigant experiences, which otherwise would not be reflected in judicial opinions.
These family court cases rarely result in detailed, written judicial opinions that can be studied and analyzed.

Brito, whose work has been supported by the National Science Foundation and the Russell Sage Foundation, says her project is a good example of the law in action. “If you’re going to try to investigate and understand what’s happening in state courts where thousands of unrepresented poor people show up every day and where the outcomes hold tremendous consequence for their lives, you have to be present to gather the information. A bottom-up approach to data collection will tell you a story about what’s happening. I’m hoping that my study can shed light on how pro se low-income litigants experience and navigate the court system. If we understand the critical points in their cases and the mechanisms at play, we might be able to design interventions that could support these families and level the playing field.”

Faculty bring their experiences to the classroom and to the Law School’s clinical programs. By connecting students to real people — clients, victims, witnesses, family members, lawyers, and judges — they gain a better understanding of the complexities of the justice system.

According to Brito, the law in action focus is still powerful for today’s law students. “I think one of our strengths is we have integrated that approach into both our teaching and our scholarship, and that prepares students for practice in the real world,” she says. “They are better informed and able to adapt flexibly to whatever they encounter.” •