An Optimistic Approach to Studying Law
At the core of the New Legal Realist agenda is a rigorous approach to translating social science for law. There are many challenges involved in this translation process, but perhaps the most difficult involves jumping from the more descriptive and analytical goals of social science to the normative and action-oriented goals of law. Social scientists are trained to be skeptical and critical, and can take many years to reach carefully nuanced analyses of law. Legal professionals have to move more quickly than this: they have to take action and make judgments.
Social scientists studying law have often come to negative conclusions, showing how law frequently fails to accomplish its stated goals -- and indeed can make things worse. They have thoroughly critiqued the idea that formal law -- law "on the books" -- can in and of itself change things in the world. There are many steps between passing a law, or handing down a judicial decision, and any real changes. Courts and legislatures can make rules governing the conduct of everyone from lawyers to corporations to individual citizens. But we all know that the posting of a speed limit does not mean that everyone will actually stay at that limit when driving. Thus social science studies often demonstrate the limits and failures of law.
NLR scholarship, working between social science and law, also seeks to chart a path between idealism and skepticism about the legal system. Certainly empirical research plays a vital role when it critically examines law's failures. But New Legal Realism also studies the positive possibilities of law. We call this "legal optimism" -- working to develop positive uses of social science to inform law as it operates on the ground.
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