Theory vs. Reality of Law

I must admit that Jim set me back when he pointed out that Shape of the Law was treading into Big Idea areas, including theories about What is Law. I practiced for a short while, a long time ago. But I came away with some very strong and visceral impressions about what law was good for and what law was not good for. I also have to admit that I have not read a lot of jurisprudential theory, and have the merest grasp of it. What I can say, doggone it, is that reality on the ground, is what the theorists need to go out and study. I am excited at the rising interest in this type of research in law.

The traditional, two-party winner-take all court case does not serve anybody well in family transactions. I think the legal community has come to that conclusion generally, and is moving to adjust things. Now, there are guardians ad litem for children, doing more or less to safeguard the interests of children when their interests are not truly protected by parents. There are more often ADR options now.

There are other situations where ADR is a better option as well, but over and over, I saw the family law cases as real paradigms where ADR would be a better option. I was practicing just at the beginning of ADR's spread in the middle parts of the country. I am glad to see it thriving. But there are lots more things to think about in terms of how and why law works or does not work in a country or society. Sitting in a courthouse and watching people, talking to court clerks, especially in small towns, is a very good way to find out whether the law seems to people to be working fairly and in line with people's values. This seems to me to be a really good test, and one empiricists might want to think about. If you spend motion day in a small town courthouse and listen to the county clerk, you find out an awful lot.

There is a real gap between theory and law on the ground. Law on the ground is what the average person really experiences, and what shapes their opinion of the justice system. Except for unusual events like the OJ Simpson trial, most people experience the justice system through TV shows, or through their own or relative's or friends' brushes with the legal system. Very few people really read newspapers and think about the legal system as protrayed there. Nowadays few even watch TV news and get a message that way, I suppose. We need to get in touch with Steven Bochco!