I want to talk about a foreword that Karl Llewellyn wrote for a brief that Charles Hamilton Houston and two other lawyers put together to urge the federal prosecution of lynchers in Tuscaloosa, Alabama in 1933. The brief itself is worthy of some comment down the line. It was first given to the DOJ and then reprinted (with Llewellyn's foreword) and widely distributed. It made two points -- that the Reconstruction-era federal statutes supported federal prosecution of lynchers and that the facts in this case also supported the prosecution.
Some scholars -- primarily my UNC history colleague Genna Rae McNeil and Patricia Sullivan -- have written about the brief. But so far as I can tell, no one has dealt with the Llewellyn foreword. And though the foreword is extremely brief (it runs to only two paragraphs), I think it warrants some attention. For two primary reasons. Probably the less important reason is that it expands our sense of Llewellyn's commitment to racial equity -- and that of legal realism, too. We often think about legal realism as primarily about private law and as relatively uninterested in race; this will help us remember that the Realists were fighting alongside civil rights advocates.
But maybe more importantly this tells us about Realism in action. For it shows how Llewellyn turned to the techniques of Realism to argue for the prosecution of lynchers. He relied on federal statute law and then turned to the facts on the ground in Tuscaloosa to understand what the local "law" was (a white supremacy that refused to give equal treatment or protection to African Americans). Where so much ink has been spent on the philosophical parts of Realism, such as their supposed rule skepticism, the foreword shows that Llewellyn appealed to federal statute law. He wanted that law applied so that African Americans could benefit from the rule of law construed as equal treatment. Llewellyn wasn't skeptical of the federal statute (and he had a sense of equal protection and thought that should be upheld); he was in favor of equal protection of the law to oppose and overcome the "local" law. The facts he turned to told that the local law (practices) were out of keeping with the federal law and that justified the intervention of a higher power (the federal government) to restore the rights of African Americans. That is, Llewellyn appealed to federal law when the local practices were unfair.