Thomas W. Mitchell

The New Legal Realism: Translating Law-and-Society for Today's Legal Practice

This is the Table of Contents for The New Legal Realism: Translating Law-and-Society for Todays Legal Practice Volume I.

Legal R/realism and Jurisprudence: Ten Theses

At Oxford, Salmond on Torts had been my favorite textbook (Salmond 1953). It was a conventional, lucid, expository work. Shortly after I had graduated in 1955, a solicitor specializing in personal injuries told me to forget what I had learned in the books because nearly all of his cases were settled out of court with an insurance company or the Motor Insurers’ Bureau involved. Anyway, he said, the system needed drastic reform. I suffered culture shock. So I began to wonder: how could one understand the law relating to personal injuries if one knows nothing about insurance, settlement, the damages lottery, and alternatives to the common law action for negligence? I felt misled, let down, even betrayed by Salmond and my teachers. This is a common complaint by students in most modern legal systems. Of course, I was naı̈ve, for no one in Oxford had claimed that what they were offering was in any way realistic. Brian Leiter cites a colleague as saying: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice” (Leiter 2003, citing Powe 2001). That was how I felt about Torts. But the context in England was different. When I complained, I was met with standard, complacent answers: