ORIGINS

Law and society now boasts a founding myth on par with those of all but the most venerable disciplines. We have our own antediluvian ancestors, our great flood, and our generations of matriarchs and patriarchs. We have our internal schisms and our subsidiary sects. So well established are we, in fact, that we can comfortably disagree with one another—where exactly does the family tree begin?—without ever seriously troubling our sense of collective self. There even exists, although I hesitate to say this, a shared telos, a commitment to particular visions and practices regarding the study of law, as well as a sense of doing better (or not) than those who came before (Friedman Reference Friedman1986, 763; Calavita and Seron Reference Calavita and Seron1992, 770–71). All of which is to say that although we may criticize our past and even our descriptions of our past, we are quite confident that this past is ours (Galanter Reference Galanter1985, 543).

In the beginning, as this story goes, were the legal realists (Trubek Reference Trubek1984, 577; Silbey and Sarat Reference Silbey and Sarat1987, 170; Sarat Reference Sarat2004b, 2). To be sure, some of us may look further back, to Pound’s “sociological jurisprudence,”Footnote ¹ or to common forbearers like Durkheim and Weber (Suchman and Mertz Reference Suchman and Mertz2010, 555), while others among us may reach more ambitiously for Montesquieu “or for that matter … Aristotle” (Friedman Reference Friedman1986, 764). Still, a majority of law and society scholars will quite happily complete their genealogical excursions somewhere in the early decades of the twentieth century and in the august company of Karl Llewellyn (Macaulay Reference Macaulay2005, 370; Miles and Sunstein Reference Miles and Sunstein2008, 831; Nourse and Shaffer Reference Nourse and Shaffer2009, 61).

Llewellyn, who would have been a perfectly respectable ancestor just by virtue of having studied at Yale and taught at Columbia and Chicago, appears positively Mosaic thanks to his leadership during the journey away from legal formalism. “‘Questions of law,’ to lawyers,” Llewellyn (Reference Llewellyn1949, 1286–87) sighed, “are questions about the doctrinally correct interpretation of rules of law … there is nothing to law except these authoritative rules, statutory or other, which explain how officials are, supposed to behave in 2,461,879 various and subtly differentiated contingencies.” In widely cited articles, introductory texts, interdisciplinary collaborations, and even in the moderately more “real” world of the Uniform Commercial Code, Llewellyn (Reference Llewellyn1931, 1222; emphasis in original) pursued the Realist question—“what difference does statute, or rule, or court-decision, make?”—with persistence and with undeniable flair.

Llewellyn figures centrally in this part of our history not just because he is Llewellyn, although this is certainly part of it, but also because, more than any other member of the Realist pantheon, he remains recognizable to both the “law” and the “society” aspects of our contemporary selves. More than Jerome Frank,Footnote ² more than Felix Cohen,Footnote ³ more than Willard Hurst,Footnote ⁴ Underhill Moore,Footnote ⁵ and Walter Wheeler Cook,Footnote ⁶ more than Soia Mentschikoff (the lone woman to occasionally surface in this part of the storyFootnote ⁷), and perhaps even more than one of his own teachers, Arthur Corbin,Footnote ⁸ Llewellyn remains both the first and the last universal common ancestor for those of us interested in law, in social science, and in their offspring.Footnote ⁹ Anthropologists still occasionally read Llewellyn, sociologists and legal scholars still know him, and to law review editors submerged in the biannual deluge, Llewellyn’s vaguely familiar name is likely to resemble nothing so much as a welcome flotation device.

Among law and society adherents, Llewellyn and the Legal Realists are venerated primarily for their anti-formalism. Worthy ancestors that they (mostly) were,^{Footnote 10} the Realists knew that law needed to be studied in context and for what it does rather than in the abstract and for what it claimed to be. This realization placed them at odds with a classical approach of indeterminate parentage but with decidedly Langdellian contours (Schlegel Reference Schlegel1985, 314),Footnote ¹¹ according to which decision makers either need not, or ought not, consider factors external to law (Schauer Reference Schauer1988, 510). “[P]rinted books,” the Harvard dean had intoned, “are the ultimate sources of all legal knowledge”; if this sounds absurd to our twenty-first-century ears, that is because the Realists made it so through their “consistent, persistent, insistent” journeys off the written page (Fisher, Horwitz, and Reed Reference Fisher, Horwitz and Reed1993, 234). That same focus on law in context also led the Realists quite naturally to an “appreciation of early empirical social science”—the rock upon which, in due course, law and society would be built (Morrill and Edelman Reference Morrill and Edelman2021, 415).

Even when Realists focused on rules, which they did rather more often than some of us descendants might like,Footnote ¹² they took care to reveal law’s indeterminacy—that remarkable phenomenon by which, for instance, multiple rules could produce multiple outcomes in a single situation with all permutations being correct (Nesiah Reference Nesiah2021, 16). Not for nothing are The Cheyenne Way, with its painstakingly assembled collection of trouble cases (Llewellyn and Hoebel [1941] Reference Llewellyn and Adamson Hoebel2002), and “Remarks on the Theory of Appellate Decision,” with its infamous dueling canons (Llewellyn Reference Llewellyn1950)—works that emphasize rules in different but undeniable ways—both hallmarks of the Realist legacy and, also, both Llewellyn’s creations (Redfield Reference Redfield1942, 366; Sunstein Reference Sunstein1989, 451). The Realists knew better than to elevate doctrine, we tell ourselves, even if they did not always do better.

In the second half of the twentieth century, a very mild form of rebellion against the Realist creed—a polite demur, a gentle fist shaking—began with the emergence of “gap studies.” Gap studies took the Realist commitment to anti-formalism, mixed in a good bit of faith in law’s ameliorative potential (also a Realist tenet, see Kalman Reference Kalman1996, 16), and, most significantly, put empirical research behind the entire enterprise (Feeley Reference Feeley1976, 497; Morrill and Edelman Reference Morrill and Edelman2021, 415). Instead of merely arguing that law was whatever happened on the ground, gap scholars got quite unceremoniously down to the business of documenting that ground-level activity in the name of improvement (Darian-Smith Reference Darian-Smith2013, 2). (Technocratic approaches to law were, at this point, a way of studying rather than themselves being an object of study.^{Footnote 13})

The “discourse of solutions” that emerged from this effort—the project of “aligning social description with the discourse of federal political debate”—proved extremely influential (Greenhouse Reference Greenhouse2011, 142). Not only did it provide law and society scholarship with a soteriology that had been wanting, it reached further by transforming some of the disciplinary antecedents from which law and society had sprung. In 1965, for instance, anthropologists of law were described as “thus far not [having] shared the applied and policy orientation of the sociologists” (Nader Reference Nader1965, 16). By the 1990s, even anthropologists not focusing on law could be described as having “absorbed Brown’s critical positioning of the individual relative to the nation” and as marshaling new techniques of first-person narrative to construct “the subject as both a potential object of federal relief but also as an object of political anxiety” (Greenhouse Reference Greenhouse2011, 174–200).Footnote ¹⁴ The purposive amalgamation of law and social science in the Brown brief,Footnote ¹⁵ which had provided a kind of existential justification to law and society, also provided a new imaginative framework for anthropologists writ large.

Openly refining a founder’s message, as gap scholars did, may be the prerogative of academic inheritors more than ecclesiastical ones because we expect to do better than our forbearers, to tell truths that are truthier and perhaps more amenable to hearing. Precisely who constitutes the “we” is, therefore, a matter of no small importance since it determines both the grounds for improvement and the metrics for measurement. In our corner of the scholarly universe, the first generation to do this sort of telos-defining work was emphatically sociological. All of the ninety-odd individuals who, in September 1964, met to discuss interdisciplinary approaches to the study of law were affiliated with the American Sociological Association (ASA) (and, this being 1964, all but one of them were white men) (Levine Reference Levine1990, 10–11).Footnote ¹⁶ One of their first tasks was determining whether to pursue their efforts as a division of the ASA. That they decided in favor of independence is telling, but so too is the necessity of asking the question. The founding of law and society—as field, as association, as journal, as persona—was, in other words and in an inescapable sense, sociological.

To be sure, disciplinary breadth (as well as gender diversity) came soon enough: Herbert Jacob approached political scientists to join the new effort, and Laura Nader recruited anthropologists (Yegge Reference Yegge1966, 4).Footnote ¹⁷ Today’s association makes space for a panoply of methods, while its current and four previous presidents—in addition to eight others overall—have been women.Footnote ¹⁸ Today’s elders, not a few of whom are represented on the covers or in the pages of the Routledge and MLR handbooks, are an admirably eclectic assembly. But despite this gradual expansion, the style and substance of law and society have not been disciplinarily unmarked— and, to the extent that any discipline has been dominant, that discipline is sociology.

Consider our scholarly preoccupations, which have often reflected sociological predilections more than anthropological, historical, or even political science ones. “Minding the gap,” the task that early law and society set for itself (Sandefur Reference Sandefur2021), carries a profoundly different meaning for someone trained in anthropology: more “another country heard from” and less books versus action (Geertz Reference Geertz1973, 23). (Anthropologists of law, as I have noted elsewhere and with not a little disappointment, have long tended to shy away from book law altogether [see Das Acevedo, Reference Das Acevedoforthcoming].) “Legal consciousness,” another grand theme in the soteriology of law and society, feels—from an anthropological vantage point, anyway—less like a way of doing things than like the thing itself (Silbey Reference Silbey2005; Chua and Engel Reference Chua and Engel2021). What else, my graduate school self wondered, was one supposed to do besides “turn … to ordinary daily life to find … the traces of law within” (Silbey Reference Silbey2005, 326)? Had we anthropologists not been doing that all along?

Or consider the nomenclature. What is called “law and society” in this essay is elsewhere just as often termed “socio-legal research” or the “sociology of law,” as if naming conventions for disciplines are just quirks of convenience or geography while naming conventions for persons, places, and practices are meaningful indicators.^{Footnote 19}

Consider, lastly, our institutional leadership. Of the twenty-eight doctorate-holding presidents who have led the Law and Society Association (LSA), a plurality (ten) were trained—like the ASA-affiliated group that began everything—in sociology.Footnote ²⁰ So too were eight of the twenty doctorate-holding individuals who have edited the Law and Society Review (LSR).^{Footnote 21} (Arguably, the social science inclinations of most non-doctorate-holding editors and presidents could also be characterized as broadly sociological in nature.)Footnote ²² Granted, these figures are hardly the stuff of disciplinary dominance, and they may not even signal terribly convincing preeminence: political science, after all, with seven editors and eight presidents, comes in a close second. I will also readily concede that leadership and credentialing constitute decidedly imperfect signals. But even with all of these caveats, it seems clear that sociology’s status has been, at the very least, one of primus inter pares and, moreover, that this status has not waned with time. Seven of the discipline’s ten LSA presidents and five of its eight LSR editors have held their positions since 2000, representing between 50 and 60 percent of all doctorate-holding presidents and editors in that period.

All of this is to say that law and society emerged, and has even partly continued, as law and sociology: a particular mission particularly framed to explore particular particulars. It is not to say that we should remake the field in the image of other disciplines—to anthropologize or historicize it, to assign it new texts or incorporate new prophets. We have built something that is worth celebrating, in part because that something is increasingly variegated. But it is nevertheless the case that our way of studying law—our big tent, inclusive, methodologically, ideologically, and theoretically diverse law-and-society way—is also a particular way, with antecedents and ancestors that may be more idiosyncratic than we believe them to be. Like the faithful worldwide, we tend to occasionally forget this and to universalize that which is not universal. This—as I will explain shortly—is at least somewhat to our detriment.

Nearly six decades have passed since the LSA and the LSR were founded: only two to three generations in demographic terms, but a few more in academic ones. Law and society has since generated its own champions and its own (often internal) critical commentaries (see, for example, Abel Reference Abel1980; Macaulay Reference Macaulay1984), its own descendants (on which, more below), and its exemplars. Our texts are no longer simply efforts at intellectual outreach—not just hopeful knocks on the doors of nescient others. Instead, they are now also stories we tell ourselves about ourselves, having finally been around long enough to constitute both the subject and object of exploration (Feeley Reference Feeley1976; Friedman Reference Friedman1986; Galanter and Edwards Reference Galanter and Edwards1997). Indeed, we have told these stories with such frequency that, like so many begats in another community’s narrative, we now sometimes run through them tout court with a whiff of happy impatience.^{Footnote 23} Into this universe of dynamic stability, both extending and departing from what came before, step the two volumes that inspire this essay.

NARRATIVES

The Routledge and MLR handbooks are about law and society without being, precisely, of law and society. Unlike the “readers,” “invitations,” “companions,” and “assessments” already in circulation, these new volumes are not guidebooks for what has already been: they are treatises for what could and should be. The Routledge Handbook, edited by Mariana Valverde, Kamari Clarke, Eve Darian-Smith, and Prabha Kotiswaran, advances a markedly new state of the field that intentionally troubles the “very goals and objectives of the law and society movement” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 6). The MLR Handbook, edited by Shauhin Talesh, Elizabeth Mertz, and Heinz Klug, presents the state of a new field—or, at least, of a field that is moderately young (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 1)—through its focus on the NLR movement that has emerged out of law and society. Together, the handbooks offer a wealth of information about law and society research in the twenty-first century, but there are noticeable and thought-provoking differences between them.

The Routledge Handbook is imagined as a classroom text: a set of materials suitable for social science and interdisciplinary courses that could also, with some curation, be used in law school classes (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 5). Its chapters blend the broad explanatory sweep of an Annual Review essay with the implicit, indeed very often explicit, evaluative tone of a critique. Everything about the Routledge Handbook is, in fact, carefully done with an eye toward critique and correction: from the selection of editors “representing different experiences and standpoints,” to the selection of contributors who include “people in the global South (and global South scholars working in the North),” to the choice of themes that constitute both “newer socio-legal topics” and “a fresh take on old topics,” and even to the pairing of themes with contributors so as to reflect “the complex relationships between particular authors, their background and location” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 5). The structure of the Routledge Handbook is thus itself a critical commentary—thoughtful and appreciative, but critical nonetheless—that stands quite independent of the book’s content.

On what is the Routledge Handbook commenting? Who is its imagined other? For the Routledge’s editors, and, indeed, for many of its chapter contributors, the clear target is an incumbent and now readily recognizable variety of law and society scholarship. “20 to 30 years ago,” the editors observe, “a ‘law and society’ collection would have emphasized the political and social character of state law” with a view to revealing the distance between formal law and law in action (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 3). That kind of collection might have included chapters demonstrating the racial impact of facially neutral housing laws or attesting to the continued economic and corporeal subjugation of women who enjoy formal legal equality. It would have focused on “standard categories of race, class, and gender” (4). And that kind of scholarship, the Routledge’s editors note, remains valuable. It was good, solid work that showed (in a way that the Legal Realists themselves could have only told) what actually matters in the workings of law—not just abstract principles but also social dynamics—and then bent this knowledge toward progressive social change. Consequently, the Routledge Handbook includes chapters by at least a few of the scholars whose research in this vein still exemplifies law and society scholarship especially, but not only, in the global North (see, for example, Garth Reference Garth2021a; Chua and Engel Reference Chua and Engel2021; Coutin Reference Coutin2021; Merry Reference Merry2021).

Nevertheless, the Routledge Handbook’s editors argue, this kind of traditional approach is inadequate to the task of determining “what is law and whose law counts” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 4). It is simply no longer possible to assume, even for argument’s sake, that the nation-state exists as a “coherent, autonomous” entity, much less one that enjoys “an effective and legitimate monopoly over law-making and law enforcement” (4). For that matter, it is no longer possible to assume a shared understanding of social justice—which, after all, was what lay behind the bending of law-in-action knowledge toward book-law reform that remains so emblematic of classical law and society scholarship. Strongman rule looks increasingly just to an increasing number of people, and, at any rate, it seems preferable to many who are faced with the ostensible yet glaringly fictional neutrality of markets, elections, and independent courts. But if the “mainstream view of law” is fraying, and if law can no longer lay claim to being “autonomous … effective and legitimate,” what does this mean for law and society scholarship (4)? “How,” the editors ask, “does one study law when the what, which, why, and who of law are profoundly in question?” (4).

The Routledge Handbook’s answer comes in the form of fifty-two short chapters sorted into two parts. In Part I, ten chapters introduce frameworks for analysis that have been useful to—and perhaps challenging for—law and society scholars. These are not the iconic “law and society approaches” that emerged from the field itself and that have attained the status of an intellectual calling card: there is no entry on gap studies here or anywhere else in the Routledge Handbook, and the volume’s chapter on legal consciousness is categorized as a substantive topic by virtue of its location in Part II (Chua and Engel Reference Chua and Engel2021). Instead, Part I explores the analytic frameworks that have been important for law and society scholarship but that either reflect the continuing influence of the field’s disciplinary antecedents (see, for example, O’Malley Reference O’Malley2021 on “Governmentality and Sociolegal Studies”) or that arguably rise above disciplines altogether (see, for example, Alessandrini Reference Alessandrini2021 on “Feminism”). For the most part, perhaps with the exception of a chapter on liberalism (Valverde Reference Valverde2021), these chapters explain perspectives that have been used to trouble the “mainstream view of law” that, the editors contend, informed much twentieth-century law and society scholarship.

The remaining forty-two chapters, by contrast, explore substantive areas of law and society research—“Migration” (Yeoh Reference Yeoh2021), “Genocide” (Palmer Reference Palmer2021), and “Cities and Urbanization” (Azuela Reference Azuela2021), for instance. Many chapters center issues that, though hardly new in the world and not necessarily new to scholarly analysis, are relatively recent additions to the landscape of law and society; consider, for example, Gonzalez (Reference Gonzalez2021) on “Food Sovereignty and Food Justice,” Johnson (Reference Johnson2021) on “Indigeneity: Making and Contesting the Concept,” and Sarfaty (Reference Sarfaty2021) on “Supply Chains and Logistics.” Other chapters take up topics that have been the focus of law and society research for some time, including “Gender and Law” (Banerjee and Nasiri Reference Banerjee and Nasiri2021), “Human Rights: Challenging Universality” (Golder Reference Golder2021), and “Imperialism and Law” (Rajah Reference Rajah2021). As promised in the introduction, none of the topics presume “a world order … based on singular and stable national systems,” and, going further, none of them replicate law school categories like contract, family law, and criminal law (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 4). Conversely, because all of the chapters are informed by “questions of law and justice,” there are no dedicated entries on resistance or social movements as readers might expect (5–6).

Because of this commitment to destabilizing received notions of law (and, for that matter, received notions of society) many of the Routledge Handbook’s chapters concern overlapping areas of life and learning. This is how it comes to be that two chapters explicitly focus on property (Davies Reference Davies2021; Malik and Coombe Reference Ali and Coombe2021), two on conquest (Hunt Reference Hunt2021; Rajah Reference Rajah2021), two on water (Meshel Reference Meshel2021; Parmar Reference Parmar2021), and four on various intersections of geography and law (Blomley Reference Blomley2021; Keenan Reference Keenan2021; McVeigh Reference McVeigh2021; Pasternak Reference Pasternak2021). Other synergies exist between chapters whose primary themes are strikingly different—for instance, there is a chapter on “Food Sovereignty and Food Justice,” but there is also considerable attention to hunger in the chapter on “Gender and Law.” And while forty-two substantive chapters is a lot—earlier edited volumes had, altogether, eleven (Lipson and Wheeler Reference Lipson and Wheeler1986), nineteen (Abel Reference Abel1995), thirty-three (Sarat Reference Sarat2004a), and, at the high end, forty-three (Larson and Schmidt Reference Larson and Schmidt2014) chapters—the chapters themselves are three to five pages each.

This approach is an intentional departure from earlier law and society collections that featured comparatively in-depth discussions keyed to research over teaching, and it produces a distinctive internal dynamic within the handbook. Consider the interplay between Rajah (Reference Rajah2021) on “Imperialism and Law” and Hunt (Reference Hunt2021) on “Settler Colonialism.” Rajah (Reference Rajah2021, 154) sets out to complicate the commonly held notion that “[i]mperialism is, at its heart, an exploitative relationship in which the interests of a dominant state or states are furthered at the expense of a subordinated state or states.” While this notion remains true, the chapter nonetheless pokes at the concept of state sovereignty that is so central to that common view of imperialism through a case study of land dispossession with local, national, and international elements. Hunt (Reference Hunt2021) sketches the distinctive concerns raised by settler colonialism (as opposed to metropole-periphery colonialism) through a discussion of scholarly and activist writing that ranges across thematic and geographic contexts. The chapter argues that “settler colonialism depends on, and assumes the presence of, Indigenous peoples” but criminalizes those peoples “in order to avert attention away from the illegality” of the nation-state superimposed on their territory (214–15).

Both chapters grapple with the immense and self-perpetuating power behind the nation-state form. Likewise, both critique international regimes, whether corporate or regulatory (or both), that legitimate and are in turn legitimated by the nation-state. But the chapters also partly function as foils for one another. Rajah (Reference Rajah2021), after all, is committed to questioning the potency of the very nation-state form that, in Hunt (Reference Hunt2021), is oppressively inescapable. Structurally, too, they take different paths that are equally recognizable as belonging to the law and society tradition: Hunt (Reference Hunt2021) samples widely from a range of disciplinary and interdisciplinary sources, while Rajah (Reference Rajah2021, 155) dives deep in order to build an “understanding [of] how law works in specific contexts.” Through these kinds of substantive and stylistic contrasts, the Routledge Handbook aims to provide a broad critical sampling that “reflect[s] issues of our time that were not part of the original, 1960s law and society movement” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 5).

In contrast to the Routledge Handbook’s emphasis on classroom use, the MLR Handbook presents itself as both an introduction and a summation for researchers.Footnote ²⁴ “The goal of this volume,” the editors state, “is to show the distinctive qualities of New Legal Realism,” a scholarly movement that has emerged from the law and society tradition over the past fifteen years (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 4). “We invite you to … assess how NLR is different,” they continue, and “we hope this book encompasses the best of the new Legal Realist ideals” (4–5). Both the mission and the invitation are characteristic of NLR, which, like its parent field of law and society, has always been deeply and publicly introspective.^{Footnote 25} But, whereas earlier NLR publications have tended to focus on introducing NLR and applying its insights to particular themes (Mertz, Macaulay, and Mitchell Reference Mertz, Macaulay and Mitchell2016), methods (Mertz, Ford, and Matoesian Reference Mertz, Ford and Matoesian2016), or contexts (Klug and Merry Reference Klug and Engle Merry2016), the Handbook adds a third, still more reflexive, element: disciplinary perspectives on the NLR enterprise from scholars ranging across the social sciences and from within law and society itself. Collectively, the chapters in Part III advance the movement’s translational agenda by speaking to both NLR practitioners about disciplinary viewpoints and to “Law and” scholars with strong disciplinary affiliations about NLR.

How is NLR “different”—and who is it different from? For a movement that eagerly acknowledges its relationship to law and society, and that just as eagerly embraces an “inclusive interdisciplinar[it]y” that it also ascribes to law and society, these questions matter (Suchman and Mertz Reference Suchman and Mertz2010, 560; Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 3). In the MLR Handbook, as in earlier NLR writings, the answer that emerges is tripartite. There are three Others for NLR: three contrasting approaches, three alternative universes, three ways in which NLR is “different.”

NLR’s first, gentlest, and least momentous parting of the ways is with law and society itself. As the vector to law and society’s scalar, NLR is a mode of analysis (“the social science of law”) with an added directional focus (“how to translate that to law and lawyers”) that its parent tradition does not necessarily possess (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 3).

Second, and perhaps most self-consciously, NLR is different from another Legal Realist grandchild: the Empirical Legal Studies (ELS) movement whose “primary contributing disciplines … are economics, political science, and psychology” (Suchman and Mertz Reference Suchman and Mertz2010, 558; Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 2). NLR publications regularly devote sizable word count to differentiating NLR from ELS and, quite understandably, to reclaiming the mantle of “empirical” approaches to legal scholarship that ELS appears to have reserved for itself (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 7). ELS, as the MLR Handbook editors remark here and elsewhere, “is ‘more quantitative than qualitative, more confirmatory than exploratory, and more contemporary than historical’”; it is a “smaller, faster, leaner ship” to NLR’s “bigger and roomier” vessel (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 2–3, citing Suchman and Mertz Reference Suchman and Mertz2010, 558).

Most profoundly, though perhaps least contentiously, NLR distinguishes itself from legal formalism. Like both its immediate antecedents (law and society) and its contemporaries (ELS), NLR embraces the “pragmatic” approach of Legal Realism as well as the Realist mandate to go “beyond pronouncing what the law ought to be” in order to discover “what’s actually going on with law in the world” (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 1). And for those readers wondering who exactly are the formalists still among us—who, in other words, is unconcerned with “what’s actually going on”—the New Realists, like the Old Realists, have an answer: “[t]raditional doctrinal exploration” (1).Footnote ²⁶ NLR may be most committed to differentiating itself from ELS, but its true intellectual target remains the law-on-the-books scholarship that is still dominant in the American legal academy (see, for example, Garth Reference Garth2021b, 490; Mertz and Galanter Reference Mertz and Galanter2021, 22; Taylor Poppe Reference Taylor Poppe2021, 194). “NLR,” the editors state, “continues a longstanding attempt to help law professors view law ‘in action’ as well as ‘in books’, drawing on systematic knowledge from social science” (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 7). Everything about the MLR Handbook is responsive to this mission.

Take, for instance, the MLR Handbook’s internal organization, which both resembles and diverges from the format of the Routledge Handbook. Like the latter volume, the MLR Handbook sorts itself into distinct sections, one of which is dedicated to establishing analytic frames (Part I on the varieties of Legal Realism) and one of which applies those frames to substantive topics (including “Policing,” “Legal Education,” and “International and Global Standards”). But the MLR Handbook also includes a third part, on Disciplinary Perspectives, in which interdisciplinary legal scholars with varying degrees of investment in the NLR project reflect on their home fields’ contribution to that project. Together, the three parts of the Handbook mimic the theory-application-discussion format that is typical of formalistic legal reasoning and traditional law school pedagogy.^{Footnote 27} If familiarity indeed encourages acceptance, then the MLR Handbook’s organizational structure should itself advance NLR’s overarching goal of facilitating doctrinal engagement with social science methods—and previous NLR publications suggest that this was precisely the intent.Footnote ²⁸

Other structural features reiterate the MLR Handbook’s orientation toward convincing doctrinal law scholars to incorporate more social science insights into their research and teaching. The volume’s thirty-one chapters average around fifteen pages each so that, in length and depth, they mimic the peer review articles with which doctrinal legal scholars might be most familiar. And each of those thirty-one chapters includes extensive references that, when combined with the Handbook’s theory-application-discussion format, make the volume a self-contained resource for scholars seeking something more than the basics of NLR. To be sure, the familiar pitch and sizable bibliographies of the Handbook’s chapters also ensure that the volume functions as an accessible classroom text. But despite its noticeable commitment to reimagining how students engage with law, NLR’s attention has always been on the person behind the podium: how might they study law, teach law, write law, and write about law? The MLR Handbook, through both content and structure, imagines new possible answers.

Consider the interplay between a handful of the volume’s chapters. Chapter 2, “Realism Then and Now,” does important scene-setting work by tracing the arc of Realist thought over a span of nearly one hundred years (Mertz and Galanter Reference Mertz and Galanter2021). But it does so in a way that both exemplifies the NLR commitment to a social science of law (and society) and hints at the methodological tools (first-hand experience) and analytical frameworks (unsettling assumptions) of its primary author’s home discipline: anthropology. Chapters 3 and 4 continue the work of unsettling what we think we know about Legal Realism, but this time through a historical lens that interrogates Realism’s presumed transformations over time and space (Baumgardner and Mehrotra Reference Baumgardner and Mehrotra2021; Kalman Reference Kalman2021). By the time we reach chapters 13 and 14, the volume’s attention has shifted squarely to NLR, as exemplified by these chapters’ attention to something that, outside the movement, is quite often left to improvisational effort: the task of incorporating social science into legal pedagogy. What are the nuts and bolts of a (New) Legal Realist classroom experience. What are possible assignments, principles, and reading materials one might include? These chapters provide examples that are not intended as exemplars. Finally, the very last chapter, on legal formalism, completes the arc; as against most of the MLR Handbook, which explains why NLR should ascend, the last chapter instead explores why formalism persists (Garth Reference Garth2021b). It responds by demonstrating that structural factors relating to the role of law in society explain both formalism’s vitality and realism’s appeal, and it does so using a comparative analysis that is, itself, classically NLR (501).

Unlike most of the volume, these chapters have neither an overt disciplinary orientation nor a specified subject matter along the lines of “policing” or “immigration.” They are not, explicitly at least, about NLR approaches as applied to X or viewed from the perspective of Y. Nevertheless, and very much like their companion contributions, these six chapters draw on a range of intellectual styles (anthropological, historical, sociological), are attentive to context (both within the United States and outside), are inescapably self-reflexive, and, finally, are consistent in their directional orientation toward law schools. And in keeping with the volume at large—of which they constitute a remarkable microcosm—these six chapters replicate the theory-application-discussion format that is likely somewhat familiar to doctrinal faculty.

INTIMATIONS AND OVERTURES

Their differences aside, the Routledge and MLR handbooks are, as assessments and expressions of law and society scholarship, remarkably aligned. For instance, both volumes reflect their contributors’ belief in measuring scholarship by what it helps achieve outside the much-maligned ivory tower. They do this differently, to be sure. In a world marked by narrowing worldviews and hardening divisions, the Routledge Handbook editors write that “[t]he very meaning and scope of the term ‘law’ takes on new urgency” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 6). Indeed, the Routledge Handbook incorporates perspectives and topics centered on social justice to such a degree that it needs no separate chapter on “social movements” or “resistance.” The MLR Handbook, for its part, reflects an old-school Realist faith in the ameliorative potential of the law—in the task of “collecting data … to better inform legal and policy debates” (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 2). Why else pursue more and better translations between law and social science? Contributors to the MLR Handbook, like their Legal Realist forbearers, seem clear that the motivation for engaging in this work emanates, above all else, from social and legal dilemmas in today’s world (the title, not coincidentally, of the volume’s Part II).

Both volumes also push for a social science of law that is orders of magnitude broader than what currently exists. The Routledge Handbook does this most clearly through its early call for law and society research to include diverse ontologies instead of merely exploring law’s impact on diverse populations. It is not enough, the Routledge editors argue, to more thoroughly consider “the standard categories of race, class, and gender”: law and society scholarship must ask “[w]hat happens when different legal systems are found in the same space at the same time?” (Valverde et al. Reference Valverde, Clarke, Darian-Smith and Kotiswaran2021a, 3). What does “law” mean to—and do to—communities and spheres of activity where the word itself signals something other than the uniform, centralized, command model of authorized force embodied by the nation-state?

The MLR Handbook, meanwhile, calls for breadth at the level of analytical frame, but not by adding one or two departmental headings to the already-packed law and society marquee. To be sure, the kind of methodological and theoretical breadth that NLR advocates for is more receptive to qualitatively grounded disciplines than both doctrinal analysis and alternative Realist descendants (ELS) tend to be. But intellectual expansiveness, in the NLR view, is epistemological more than methodological: NLR scholars “do not assume that their individual method is the only way of understanding a particular social or legal issue” (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 8). In an area of life and learning that is centered on telling some people how to tell other people what to do, this commitment to suspending one’s own sense of superiority is refreshing.

Change in the world and perspectival breadth are both laudable goals with which I am entirely in sympathy. They are also challenging enough to occupy several careers, if not lifetimes. Nevertheless, in this last part of the review essay, I should like to add to the task list that the Routledge and MLR handbooks have set for themselves.

Beyond any ontologies, methodologies, theories, or themes that we may want to introduce into the resolutely doctrinal realms of legal scholarship and pedagogy, I encourage those of us in the law and society universe to occasionally flip the narrative by talking law to social scientists. Ours, after all, is an interdisciplinary field, neither singular in its focus nor consistently “indiscipline[d]” (Comaroff Reference Comaroff2010): whether we take the field in its Routledge, NLR, or incumbent variations, the dissonance, like the harmony, is meant to flow both ways. Yet while we have become past masters at speaking social science to law—to translating, explaining, extolling, and otherwise communicating the virtues of a social scientific approach for legal analysis—we have yet to speak very much for law.Footnote ²⁹ This we can change, and I propose that we do so.

Why? First, at the risk of inviting both the “slur of functionalism” and the wrath of our Realist ancestors, let me suggest that stuff does stuff sometimes (Das Acevedo, Reference Das Acevedoforthcoming). Law being stuff, as the syllogistic reasoning goes, it too does stuff—sometimes. Now, we law and society folk are right to note that words on the page rarely effect states of the world in the unproblematically linear way that is regularly assumed by doctrinal analysis. But we too easily conclude that, where law’s effects are unintended, underwhelming, or unpleasant—that is, wherever they are less than ideal—that laws themselves are uninteresting and unimportant.

Surely the opposite is true. When the words on the page do not translate well into states of the world—when we must query hearts and databases alike for the ostensibly magical utterances behind dismal or curious realities—surely that is when those utterances become even more worthy of exploration. Gap minding matters because law matters: because book law has meaning and potency even when it is formalistic and abstracted, and despite its being taught, read, and interpreted as such. Put differently, mischievous forces are forceful nonetheless and must be understood before being propitiated or tamed. And while few of us might disagree with this in principle (the shadow of the law^{Footnote 30} looms large over us as much as over the people we study), fewer still care to return, bearing social-scientific insights, to the formalistic rules that sent us out into the world. We dismiss those rules as so many technicalities even as we call for them to be improved (but see Riles Reference Riles2005).

The logic of law has, admittedly, seemed somewhat meaningful to our interdisciplinary community when the law is constitutional in nature (see, for example, Scheppele Reference Scheppele2004) or when our interest in it is historical in style (see, for example, Lee Reference Lee2014; Weinrib Reference Weinrib2016). Under these circumstances, we are willing to say that what was formally articulated—what the words are, abstracted from context—might matter because that is often how (highly contextualized) human beings engage with them. Even in these instances, we are usually quick to pour the society back into law with theoretically rich and empirically grounded care. This is as it should be. And, occasionally—increasingly often in the study of private organizations that are able to shape the very rules that bind them (Talesh Reference Talesh2009; Edelman Reference Edelman2016)—we integrate book law and law in action in a way that is truly inspiring. Nevertheless, quite often in practice and more frequently still in rhetoric, we proceed as if formal law is an impediment to understanding law itself. But the stuff-ness of formal law, its misfired, even misunderstood, impact on the world, encourages us to do otherwise.

So too does our own interdisciplinary nature. For over half a century, our field, journal, and association have engaged in a kind of call and response with legal traditionalists: they sing “law,” we cry, inexorably, “and society.” Without a doubt, our response has become more nuanced, more alive to melodic variation, and more inclusive of rhythmic diversity; we call for ontologies and universes, not just populations and themes. But we seem to have forgotten that our nave faces two altars and that it is better for doing so—that we can sing law to the social sciences too. Without this mutuality of exchange, we are not “law and society” so much as a “social science critique of law,” and our interdisciplinarity stands incomplete. We are also, for that matter, not markedly different from exhibiting the kind of epistemic exceptionality that we so often ascribe to doctrinal legal analysis. Perhaps this is, indeed, what we intend to say: that law has much to learn from the social sciences but little to give in return. Perhaps, in the face of qualitative nuance and quantitative breadth, law’s revelatory powers seem decidedly less powerful. Our ways are better than your ways, we may be suggesting; our gods are bigger gods. (Our Realist ancestors certainly thought so.)

But I do not think this is what we mean, even if we sometimes imply it. Law and society, from the outset, has been characterized by curiosity as much as by confidence. Our practitioners have worked to maintain an intellectual humility that is as endearing as it is enlightening. The Routledge and MLR handbooks exemplify these attitudes, with their calls to think broader, harder, more carefully, and, yes, more empirically—calls that are not only directed at law folk but also at scholars within our own interdisciplinary universe. Denigrating formal law, avoiding its categories, and shying away from its internal logics—asking doctrinal law to feature a little less law and a little more society—all of this sits poorly with our well-established traditions of intellectual ecumenism.

It also, finally, overlooks the somewhat inconvenient fact that interdisciplinarity is only possible where there is disciplinary distinction. As a field, we pride ourselves on occupying the in-between: neither the study of society writ large nor the study of legality written down but both, simultaneously and seemingly despite one another. Law and society depends on the cognitive dissonance produced by its constitutive and competing monisms (Doniger Reference Doniger2006, 9). It is therefore not simply that our disciplinary axes may never truly converge (Garth Reference Garth2021b) or that “any efforts at deep reconceptualization … may … never be successful (Talesh, Mertz, and Klug Reference Talesh, Mertz and Klug2021a, 6; emphasis added). It is that we ought to hope with all our might that, regardless of our admirable translational efforts, our disciplinary deities retain their distinctive personas. Without boundaries there can be no translation; without disciplinary diversity there can be no interdisciplinary revelation.Footnote ³¹ It is in the constant process of disorienting and reorienting ourselves—of making one-half of ourselves intelligible to the other and vice versa—that we stand to learn, and teach, the most. “Asymptotic progression,” I have suggested elsewhere, “leaves room for infinite progress” (Das Acevedo Reference Das Acevedo2020, 48).

What, as the Hyde Park saying goes, does this mean in theory?Footnote ³² It means, for instance, acknowledging how “ideologies of rationality” largely influence “both organizations’ strategic responses to law and the courts’ responses to organizational actions” and then studying particular rules and particular organizations to show how this works (Edelman, Uggen, and Erlanger Reference Edelman, Uggen and Erlanger1999, 407). It means asking why problematic legal rules seem to be compelling (not just obfuscating or oppressive) to those whom they most disadvantage and then developing empirically rooted answers that may sound in power asymmetries (Dubal Reference Dubal2017) or in differing conceptions of agency (Das Acevedo Reference Das Acevedo2018).Footnote ³³ It may even mean asking whether law on the books matters despite its non-observance, and it may subsequently mean accepting that the answer, at least occasionally, is “yes”: our imaginations are often as alive to what might be as to what actually is (Offit Reference Offit2019). Doing law and society work, in other words, means viewing law as more than a distraction—as a starting point, if not an end.

Fortunately, as these volumes make clear, we are already adept at taking law seriously, even if we frequently feel compelled to suggest otherwise. Why we are so compelled is itself a worthy exercise in collective introspection, and the literature gestures at several possible explanations. Competition for the Realist mantle, staking out disciplinary boundaries, tussling for disciplinary prominence, the prestige and material advantages enjoyed by academic law whether inside or outside the university—all of these may help to explain why law and society has addressed itself so peculiarly to one of its possible audiences. For my part, though, I prefer a simpler explanation: it is hard to host contradictory selves and to please dissimilar masters. Success is to be celebrated, not expected.