UW scholars included in ‘canon’ of legal thought

The writings of two faculty members and a graduate of the University of Wisconsin Law School were chosen as being among the 20 most important works of American legal thought since 1890 in a just-published book.

“The Canon of American Legal Thought,” authored by Harvard law professors David Kennedy and William W. Fisher III, recounts the history of writing on legal thought and decision-making by examining the work of the nation’s most influential legal scholars.

Alongside the work of such historic legal figures as Oliver Wendell Holmes is the work of UW Law School professor Stewart Macaulay, emeritus professor Marc Galanter and former graduate student Kimberle Crenshaw, now a law professor at UCLA and Columbia University.

“In terms of cutting-edge thought that shapes the legal profession, we have an international reputation for our active, creative, intellectual environment,” says Kenneth B. Davis, dean of the UW Law School. “We’ve always been an idea leader with an emphasis on putting the law into action.”

Macaulay and Galanter’s widely cited works have been seen as critical in the “law and society” movement in legal thought.

The canon’s authors included a 1963 piece by Macaulay titled “Non-Contractual Relations in Business: A Preliminary Study,” considered a seminal work in bridging legal scholarship and social science.

Macaulay, whose work is one of the most cited of all time and has been translated into many languages, traced the Law School’s tradition of studying the law in action back to the Progressive era.

“This isn’t something that we invented yesterday afternoon, and the paper’s inclusion in this book is just another recognition of our long tradition of analyzing how law and society interact,” Macaulay says.

The paper, published in the American Sociological Review, sat little-noticed for about 10 years before it eventually gained wide acceptance in the legal realm.

Galanter also contributed a major work that demonstrated how law could be an avenue of social change. His 1974 piece, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limit of Legal Change,” examines how the legal system resisted being used as an instrument of social change.

“Galanter’s innovation was to link legal culture, not the broader political or economic system, to the micro-expectations of parties with different relationships to the legal system,” the authors say.

Galanter says his work was first viewed as “far out and kind of marginal,” but eventually gained wide acceptance.

“It reflects that the law school has been home to the law in action approach,” Galanter says. “We’ve been a preeminent center for a perspective that focuses on law not as a set of theories and rules, but as an active part of social life.”

Davis says that works like Macaulay and Galanter’s show how the school puts the law into action in ways that can change the course of legal culture and improve society.

“Our law-in-action approach reminds us that no matter how interesting we find a legal theory, we always need to ask, ‘How does this affect people’s lives in the real world?'” Davis says. “It’s a way of building on the Wisconsin Idea.”

Crenshaw, a former Hastie Fellow at the UW Law School, is one of the authors of the introduction to “Critical Race Theory: The Key Writing that Formed the Movement,” which is also included in the Kennedy and Fisher’s book.