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The Write Stuff

By: dmc-admin//January 8, 2007//

The Write Stuff

By: dmc-admin//January 8, 2007//

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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.”

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