Intended as a short survey text, Kitty Calavita's Invitation to Law & Society expertly summarizes many of the central themes of law and society scholarship as they have developed over the past fifty years. It also clearly identifies the field's object of attention: “real” law. I use this commentary on the book as an opportunity to assess the field as it enters its sixth decade. How has the field changed? What are its defining characteristics? What is “real” law? Does law and society research have a future?

In the aftermath of America's Civil War, national lawmakers who chronicled the fall of slavery described the North as a terrain of states whose representatives assembled in Congress, as evidenced in Henry Wilson's The Rise and Fall of the Slave Power in America (1872–77) and Alexander Stephens's A Constitutional View of the Late War Between the States (1868–70). Beginning in the early 1900s, scholars who helped establish the field of American constitutional history redescribed the national government as the voice of the Northern people and the foe of the states, as evidenced in Henry Wilson's The Rise and Fall of the Slave Power in America (1872–1877) and Alexander Stephens's A Constitutional View of the Late War Between the States (1868–1870), a first generation of scholars writing during the Progressive Era redescribed the national government as the voice of the Northern people and the foe of the states, as evidenced in William A. Dunning's Essays on the Civil War and Reconstruction (1898), John W. Burgess's The Civil War and the Constitution (1901–1906), and James G. Randall's Constitutional Problems Under Lincoln (1926). Although a second generation of scholars uncovered traces of the lawmakers' perspective of states, new efforts in the wake of the civil rights movement to understand the internal workings of political parties and the contributions of ordinary Americans kept the study of national lawmakers and their states on the margins of inquiry, as evidenced in leading revisionist histories of Reconstruction, including Harold Hyman's A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973), Michael Les Benedict's A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (1974a), and Eric Foner's Reconstruction: An Unfinished Revolution (1988). Today, the terrain of Northern states remains in the backdrop, as illustrated in recent studies featuring the wartime national government, including James Oakes's Freedom National: The Destruction of Slavery in the United States, 1861–1865 (2012) and Mark E. Neely, Jr.'s Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (2011), as well as studies of the mechanisms of constitutional change during Reconstruction, including relevant sections of Bruce Ackerman's We the People II: Transformations (1998) and Akhil Reed Amar's America's Constitution: A Biography (2005). This review essay argues that incorporating the states back into this century‐old framework will open new lines of inquiry and provide a more complete account of federalism's role in the fall of slavery. In particular, a return to the archives suggests that in the uncertain context of mid‐nineteenth‐century America, slavery's leading opponents in Congress saw the Constitution's federal logic not simply as an obstacle, but as a crucial tool with which to mobilize collective action and accommodate wartime opposition at a time when no one could say for sure what would remain of the United States.

There has been a fair amount of recent scholarly attention to the role and influence of law clerks at the Supreme Court of the United States. This new wave of systematic research began when Todd C. Peppers (2006) published Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk at almost exactly the same time as Artemus Ward and David L. Weiden's (2006) Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Then Peppers and Ward (2012) teamed up to produce an edited volume, In Chambers: Stories of Supreme Court Law Clerks and Their Justices, in which each chapter focuses on the relationship of a specific justice and his or her clerks. Together these three works raise interesting questions about how one properly studies the role and power of law clerks at the US Supreme Court. How does one measure the influence of these temporary assistants to the justices? Should sociolegal scholars trust them to help us understand the approaches and behavior of the justices today or in the past or do they have an unrealistic and inflated view of their own contributions? This essay offers a broad overview of what scholars and journalists currently know about the role of clerks at the Supreme Court.

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law's own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben‐Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence‐law debates about probabilistic evidence, for contract‐law debates about the centrality of autonomy and self‐authorship, and for understandings of legal reasoning itself—the elusive notion of “thinking like a lawyer.”

New work on colonial legal regimes suggests new pathways for scholarship on legal regimes, legal consciousness, judicial personnel, and the Atlantic world. Malick Ghachem's recent book, The Old Regime and the Haitian Revolution (2012), introduces scholars to one legal regime—that of the French plantation colony of Saint‐Domingue—to show how enslaved and free people continually negotiated the terms of master sovereignty and manumission. This debate lasted from Saint‐Domingue's establishment as a slave society in the seventeenth century to its revolution in the 1790s, which overthrew the slave regime and culminated in independence in 1804 as the republic of Haiti.

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.

This essay reviews three works addressing the famous case Lochner v. New York: David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers (1992); and Victoria Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights” (2009). The author argues that a comparison of these three works raises historiographic issues relating to legal historians’ deployment of assumptions about the continuity of legal development, the role of key actors or social forces, and the autonomy of legal development in relation to other societal events. Further, the essay argues that there is a tendency toward “law school historiography,” referring to the selection of historiographic approach to suit a preconceived jurisprudential narrative that appears when the subject is the history of legal and, especially, constitutional doctrine.