Many law professors, including Bill Whitford, have gone beyond appellate cases and turned to reporting and analyzing how law works in society—in short, they’ve looked at the law in action. Some of us have called this developing trend “new legal realism.” What is a new legal realism? Lynn Lopucki tells us: “Born of the old Realism and nurtured in the law and society movement, the New Realism seeks to discover and teach the meaning of law from its impact at the point of delivery—not just in the courtroom, but in the hallway, the lawyer’s office, and occasionally even more distant realms.” “At its narrowest, law include[s] the activities of lawyers. At its broadest, the study of law [is] no less than the study of society.” Willard Hurst told us: “[W]e simply have to break out of this exaggerated preoccupation with the judicial process.” Marc Galanter sketched the tacit model of much, if not most, law review writing. He finds that we tend to assume that if you read an appellate opinion, you will understand its consequences: If you assume that the behavior of legal actors generally conforms to the rules, it then follows that “[t]he authoritative normative learning generated at the higher reaches of the system provides a map for understanding [the entire legal system].” Of course, few of us say or even think this; it is too often just taken for granted in what we publish.
