The New Legal Scholarship: Problems and Prospects.

Abstract

Legal scholarship has changed dramatically in this century. Early in this century, legal scholarship found form and coherence in a method of study and teaching often referred to as the doctrinal approach. This approach placed its emphasis on the determination of rules, principles and procedures through the detailed analysis of cases — a method that goes back at least as far as Langdell's reforms at the Harvard Law School. There can be little debate as to the professional success of this approach to legal scholarship. It provided a method for teaching and for the writing of legal treatises and law review articles that endures to this day.Yet if there was a purity to this methodological emphasis on “law in the books,” there was also an incompleteness that led others to call for research on the “law in action.” Often known as the legal realist movement, and best documented in its emergence at the Yale Law School, this approach to legal scholarship called attention to gaps between doctrine and practice. It is interesting to note that both the traditional doctrinal approach and legal realism were eager to claim the mantle of science. In doing so, the doctrinal approach focused on recorded cases as its units for observation and analysis, while the realists moved beyond these official accounts to examine the way the law actually was applied and affected people's lives. The realist's point was that the law often only affected social life indirectly and that doctrine frequently affected society in uncertain and unanticipated ways.