New Legal Realism: Empirical Law and Society

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Seeking to develop a rigorous, genuinely interdisciplinary approach to the empirical study of law.
About New Legal Realism

Bottom Up to the Top

Many New Legal Realists encourage us to place greater empirical emphasis on the effects of law at the "bottom" than we currently find in the legal academy. Although this is a standard perspective for many social scientists studying law, it is too often absent in standard legal scholarship and thought. When we talk about law at the "bottom," we are referring to the way law works for the average citizen, in daily practice. This could mean studying how law affects everyday life, or it could mean studying how legal processes pan out for people who wind up in courts or lawyers offices. It could push us to ask how well-meaning changes in administrative and bureaucratic practices work out for the workers or the public. This approach has also been called studying the "law in action" or "law on the ground."

When we talk about studying law from the "bottom up," we mean that we will take care not to let assumptions of people in elite positions (including academics) bias our studies. People in privileged positions may begin with assumptions that do not fit with actual practice. Even within the legal academy, the professors who deal with the everyday realities of law in clinical education do not have the same clout as the "stand up" professors who are more sheltered from daily practice. Good empirical research proceeds with multiple cross-checks on researchers' presumptions. A "bottom up" perspective can be thought of as an important check on researcher bias, requiring academic researchers to ask about what legal process looks like from the ground up as well as from the "top down."

Studying law from the bottom "up to the top" means that we include multiple perspectives. It is important to understand the elites and institutions at the "top" of the legal hierarchy as well as the perspectives of those with less power. Indeed, NLR also takes legal doctrine seriously - not as self-actualizing - but as one part of the language in which law is formulated. Achieving a thorough "bottom to top" analysis of law requires a model that integrates empirical research on law at all levels: law in action as well as law in the books; law in everyday life and law in the highest appellate courts.

This integrative approach to the topics we study also has implications for the methods we use. In addition to getting the "big picture" from large-scale quantitative research, we will need to obtain fine-grained understandings of how people experience law using ethnography and qualitative sociology. The controlled settings of experimental work can help us to separate out the impacts of various aspects of context and psychology on legal outcomes, while in-depth interviewing can allow people to tell us more about their own understandings of their experience.

This "bottom up" focus extends to policy domains as well. In seeking to translate social science for use "on the ground" in law, NLR should encourage a "democratic" concern with the effects of law in people's everyday lives and experiences. Just as good social science should be constantly on guard against the bias that researchers might have as a result of their own social positions, good policy-making in a democratic state requires attention to the needs of non-elites as well as of elites.

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