The Write
Stuff
By
Jack Zemlicka
jack.zemlicka@wislawjournal.com
Jan.
8, 2007
 |
Two
articles by UW Law School Professors Stewart Macaulay and
Marc Galanter have been included in a collection of the top
legal writing.
Photo courtesy of UW Law School |
When
it comes to creating some of the most prolific legal analysis
in the last century, Stewart Macaulay and Marc Galanter wrote
the book, or at least contributed to it.
The
longtime University of Wisconsin Law School professors each had
an article included in the “The Canon of American Legal Thought,”
an anthology looking at the top 20 works in American legal thought
since 1890.
Edited
by David Kennedy and William W. Fisher III, the 2006 publication
looks at the evolution of the legal profession in the United States
through the words of the most renowned legal minds.
Macaulay’s
contribution was his 1963 article, “Non-Contractual Relations
in Business,” and Galanter’s contribution was the 1974
essay, “Why the Haves Come out Ahead: Speculations on the
Limits of Legal Change.”
“We
selected what we thought were the deepest and most influential
essays,” said Fisher, who is a professor of Intellectual
Property Law and Director of the Berkman Center for Internet &
Society at Harvard Law School. “The articles by Macaulay
and Galanter — both of them crucial in launching the ‘Law
and Society’ movement — easily fit those criteria.”
The
Social Science of Law
Fisher
claimed it was pure coincidence that Macaulay and Galanter happened
to both be affiliated with UW Law School, but not surprising since
Madison was known for its nurturing of the “Law and Society”
movement.
Both
Macaulay and Galanter were aspiring attorneys when they graduated
from law school, but ultimately chose the classroom over the courtroom.
“At
the time, I was a young contracts teacher trying to make sense
of my subject,” said Macaulay who graduated from Stanford
Law School in 1954 and joined the UW Law School faculty in 1957.
“The approach taken in my article has been a part of my entire
career.”
Though
limited in both legal and business experience at the time, Macaulay
enhanced his knowledge of contract law as a lecturer to first-year
law students in Madison. He sharpened his business skills through
conversations with his father-in-law, who served as general manager
of S.C. Johnson.
Macaulay
credited his wife, Jacqueline, whom he met and married while at
Stanford, with developing his sociological awareness. Jacqueline
Macaulay, who died in 2000, held a Ph.D. in social psychology
and was a Wisconsin attorney from 1983-2000.
“At
the time I was doing the research, she was a graduate student
in social psychology at UW,” said Macaulay. “She edited
many drafts with a heavy blue pencil and rewrote paragraphs to
keep a law professor out of trouble with the social science world.”
Galanter
took a less direct route to his calling. A 1956 graduate of the
University of Chicago Law School, he taught undergraduate studies
at a variety of colleges for a decade before enrolling at Yale
for a semester in 1970.
“I
went with plans to write something else, but ended up looking
at the legal system from the last 10-12 years,” said Galanter.
“I looked at law of the post-war era, stuff from the ’50s
and ’60s and social science studies of the American legal
system. There were so few at the time, I could pretty much read
all of them.”
Admittedly
an outsider when it came to the law culture at the time, Galanter
applied his research to the evolving legal and social culture
of the late 1960s and early 1970s to shape his essay on the “Haves.”
“I
was a man from Mars, so to speak,” said Galanter, who joined
the UW Law School faculty in 1976. “I think that was a big
advantage, not being part of the system at the time.”
In
his essay, Galanter observed the optimism in the legal world around
1970, “where problems could be solved by clever lawyers and
heroic judges.”
“Even
in 1969, Wall Street firms were struggling to get new attorneys
to work for them because people wanted the commitment to public
interest and pro bono work,” said Galanter. “My article
was both sympathetic and skeptical of that optimism.”
If
at First…
Though
both professors have written extensively on numerous legal and
social topics, getting their most prominent pieces published was
a painful process.
“For me it was extremely tough to get published,” said
Galanter. “I was turned down by virtually every law review
and political science journal.”
He
finally found an editor interested in publishing his piece, but
wrestled with the legitimacy of the submission.
“I
was the editor at the time of the ‘Law & Society Review,’
but since it was a referee publication, I felt a little uncomfortable
putting my own work in,” said Galanter. “So I asked
a friend and he said, just get a guest editor for the issue and
that’s how it got in.”
In
1986, Galanter’s article was recognized as the Review’s
most cited article of the decade.
Macaulay’s
essay initially struggled to find an audience as well. Rejected
by the “American Journal of Sociology” (AJS), the article
was revised under the guidance of sociologist Robert Merton.
“Merton
knew about the article and me from his friend, the Wisconsin legal
historian, Willard Hurst, and offered a number of suggestions,”
said Macaulay. “The two had served together on the Social
Science Research Council. Merton told ASR to publish it and obviously,
this helped bring it about.”
Lasting
Impact
In
Yale Law Librarian Fred R. Shapiro’s 1996 “Symposium
on the Trends in Legal Citations and Scholarship: The Most-Cited
Law Review Articles Revisited,” (71 Chi.-Kent. L. Rev. 751),
both articles place in the top 15 of all time.
Galanter’s
“Haves” ranks 13 and Mac-aulay’s “Non-Contractual
Relations” is number 15 on the top 100 list. The essays represent
two of only three articles pertaining to the “law and society”
movement on the list.
Neither
author expected their writings to garner the type of attention
each has, so inclusion into “The Canon of American Legal
Thought” is just another pleasant surprise.
“It’s
always nice to get recognized and know people are still reading
your work 30 years later,” said Galanter, who became professor
emeritus in 1999 and maintains a part-time appointment at the
London School of Economics. “I really feel like I have to
top myself now.”
Macaulay
believes his article has held up well and still holds relevance
as a teaching tool.
“It
does use the example of "Studebaker taxis," and the
secretaries are "she," but the basic ideas do hold up
rather well if one remembers that the world and business have
changed since 1963,” said Macaulay who at 75, still teaches
full-time at UW Law School. “There is a limited subset of
contracts where the threat of litigation for breach of contract
may be all important. Nonetheless, a lot of business is still
done in places where there is little hope of going to court and/or
on contract documents that leave a lot open and uncertain.”
“Most
disputes must be settled, and people still are concerned about
keeping long-term continuing relationships going. Moreover, one
reason people do not perform is that they are broke, and bankruptcy
usually isn't a happy place to press a claim.”
Despite
the dramatic climate changes in both law and society throughout
the last 30 years, Macaulay and Galanter both found a home for
their progressive work in Madison. In another three decades, their
work may still be applicable.
“They
are great pieces, and scholars who have made an enormous and important
contribution to American Legal Thought,” said Kennedy. “UW
should be proud.”
