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

Optimism and New Legal Realism

New Legal Realist scholars have embraced social scientific methods and approaches, whose results often cast less-than-positive light on how law is actually working out in people’s lives. When we really examine how the legal system works, we often find that poor people do not receive the same opportunities for justice that rich people do, that injustice is more common than we’d like to think, that much of law’s promise goes unfulfilled on the ground. This kind of insight was shared by critical legal scholars, who in many ways left their audience with a very pessimistic understanding of how law works. (Although this may be an over-reading of some of these writers.)

New legal realists certainly report unfavorable findings about law when these results emerge from empirical research. But they also urge an optimistic view of law’s potential:

“… a new realism nonetheless embraces empirical study because (again) there is no choice if we wish to make more informed decisions. Such a new realism … accepts neither the head-in-the clouds empiric-free reasoning of much of legal scholarship nor the hollow hopelessness of some in social science. It is ultimately optimistic, maintaining that law is a world of action and our responsibility isto participate in it.” [Nourse & Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory, 95 Cornell L. Rev 61, 137 (2009)]

“…we propose a concept of ‘legal optimism’ as an integral feature of New Legal Realism. By this we indicate that skepticism about legal rules and their potential for effectuating legal change need not imply a nihilist surrender to pure critique. In other words, new legal realist research will certainly examine the law’s failures, but it will not neglect examination of spaces for positive social change in and around the law. This charts a path between idealism and skepticism, by both remaining cognizant of hierarchies of power and the paradoxes they create for law, and also asking what can be done to work toward justice within the existing structures. Note that this requires us to have an adequate understanding of how society and law actually work on the ground, which implies a thorough use of the social science tools at hand. It also implies a rejection of theory-driven orthodoxies that do not take account of people’s lived experience of the law in particular settings.” [Bryant Garth, quoted in Erlanger et al., Is It Time for a New Legal Realism? 2005 Wisconsin L. Rev. 335, 345 (2005)]

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