I ‘d like to add two points to this interesting discussion:
1. I would commend taking some time to read in detail what people who call themselves “new legal realists” are actually saying. Careful readings of the older realists are very welcome, of course – but why not look closely at some of the newer material?…
Doing this would reveal a variety of perspectives, just as with the older realists – and many of the NLR writers do NOT focus on performing empirical research, but on “translating” or using it. Drawing on social science to inform legal theory and practice …. hmm…. now where have we heard that idea before?
2. It is perhaps predictable that legal historians and philosophers would deem the core “territory” of inquiries surrounding realism to be defined by historical study and philosophy. And it’s certainly fair to ask about the relationship between older and newer schools of thought in a scholarly tradition. But my second plea is that we also ask a more creative or positive kind of question: What could be gained or generated from novel interdisciplinary efforts and conversations? Our friend Schlegel wrote to me that it’s important to recognize “that legacies are always claimed as the past is reworked for present purposes.” I completely grant this point, and I am glad to emphasize his insight here. And, as I’m sure he would agree, there is a politics to claims in either direction – either that a current movement has roots in an older one, or that the movement should not claim roots in the prior one. Having granted this, I am sure Schlegel would also agree that this should not stop us from being receptive to what could be gained from a new generation of scholars who seek to take up (at least part of) the mantle of a previous generation.*
*See my comments below about whether these newer scholars should be viewed as parvenus or upstarts because they claim an honorable lineage? (And, along similar lines, what are the academic credentials that allow one to write on realism without being viewed in this way? ) For a somewhat different take on new legal realism from a legal historian, one could look at some recent writings by Chris Tomlins.
POINT #1: A Plea for “Slow Reading” (with apologies to the “Slow Food” movement)
We are all increasingly overburdened in terms of the sheer amounts of material we should be reading to keep up within our fields of interest. (A colleague recently joked with me that there should be a tax on those who keep writing huge amounts of not-particularly-novel material that nonetheless needs to be covered and digested by diligent scholars in their fields – no doubt a counter-intuitive perspective in terms of today’s norms surrounding academic production!) James Boyd White wrote eloquently about this issue many years ago.
So, it is not with righteous indignation that I make this plea – I do understand that it is very difficult to cover all the ground we’d want to cover before making some kinds of scholarly assertions. Nonetheless, even a brief glimpse at some of the articles about new legal realism would reveal pertinent details:
–Cross (1997), in his article “Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance,” discusses empirical research on the political ideology of judges from the field of political science. He seems primarily to be frustrated at the way legal scholarship has remained “oblivious to this large and mounting body of political science scholarship,” while “some political scientists have been correspondingly unconscious of the legal model.” (p. 251). It seems that Cross’s primary goal is to find a way to create a bridge across this divide so that a fruitful interdisciplinary conversation could emerge.
— Erlanger et al. (2005), in their article “Is It Time for a New Legal Realism?” similarly describe the task of new legal realism as “bridging law and social science,” “translating respectfully” between law and the social sciences, and then they explicitly state: “Our goal is to create translations of social science that will be useful even to legal academics and lawyers who do not wish to perform empirical research themselves, while also encouraging translations of legal issues that will help social scientists gain a more sophisticated understanding of how law is understood…by those with legal training.” (p. 336)
–Nourse and Shaffer, in their article “Varieties of New Legal Realism” (2009), describe New Legal Realists as united around a rejection of new varieties of legal formalism derived from classical law and economics. Nourse and Shaffer offer a creative synthesis of the emergent varieties of new legal realism, working to build a “mediating theory” that bridges information about the social world and legal institutions. They do not call for legal academics to necessarily perform social science research as part of participating in their version of “new legal realism” (although that is also a welcome possibility) — but rather they call for scholars to integrate and harness empirical work within a theoretical framework informed by social theory and research.
On the other hand, there are indeed some scholars working under the “new legal realist” mantle who call for scholars to actually perform empirical research. For example —
–Miles and Sunstein (2007) “The New Legal Realism”: “We believe that much of the emerging empirical work on judicial behavior is best understood as a new generation of legal realism. The New Legal Realists are conducting what Llewellyn and his peers only envisioned …” (p. 4). Miles and Sunstein clearly acknowledge that the older realists did not perform much in the way of empirical research, but see their effort as finally realizing something the older realists had hoped to achieve.
So there is a range of positions on these issues among the scholars in question. All this is to say – before we throw the babies out with the bathwater, one might want to take a second look. [Suchman and Mertz reviewed some of the current trends in a recent article for the Annual Review of Law & Social Science, and Greg Shaffer has written – most recently with Tom Ginsberg – on applications to international law, as has Bryant Garth]
I personally have expressed strong doubt about trying to push law professors to do empirical work, and in a recent article argued that an “add social science methods and stir” approach to training law students may just result in lawyers who have half-baked ideas about empiricism.
POINT #2: Against Academic Isolationism
I know that both Leiter and Schlegel have explicitly acknowledged that the history of Legal Realism need not constrain current developments. Nonetheless, after reading their comments, it would be possible to conclude that there is something somehow illegitimate about current New Legal Realist efforts – as if these upstart parvenus are trying to “claim” something just to feather their nests. On the one hand, I am happy to claim “parvenu” status, given that it connotes someone of more humble origins who is entering (and perhaps upsetting) the worlds of higher-status people. On the other hand, I would resist an implication that this collection of scholars is any less worthy of claiming such roots than conceivable other candidates. A close reading of the varied New Legal Realist work currently emerging shows, as Macaulay has argued, both continuities and changes – but it would be hard to argue that the goals of this new work are at odds with those of the older Realists in most regards. There is an undoubted politics of knowledge at work: as most upstart, newer groups have learned when they enter academic discourse. I have been part of an “old guard” as well as a “new guard” in various debates, and have been tempted to cordon off new kinds of scholarly work as somehow illegitimate. But then, wearing my hat as editor of an anthropological journal, I was called by my professional norms to read more widely and carefully than I otherwise would have. I had to brush elbows with young upstart anthropologists starting their careers, and enter into intense conversations about the guts of their work. I had to take seriously what I had sometimes brushed off. And although there are days when I would still prefer to find a reason not to have to read so broadly, I do believe that some of the most exciting scholarly developments happen when we are pushed across disciplinary divisions into new, shared territory.
So, while I love learning more about the old Realists, I hope that none of the boundary-drawing that is happening will provide an easy reason for legal scholars to avoid delving more deeply into what is known about law by social scientists – or for social scientists to shrug in disgust and retreat to the discussions within their own disciplines. I’d call this “boring or pseudo-interdisciplinarity.” We go to a conference where there are people who see things very differently. We listen politely, occasionally rolling our eyes or making a sarcastic comment to a friend sitting nearby. And then we leave, reinforced in our sense that our own way of looking at things is vastly superior to that of scholars in other disciplines, with one more reason not to try to move across an uncomfortable boundary. The best part, I think, of many “new” efforts in any scholarly discipline, is that they sometimes push us out of our comfort zones. Maybe what is “new” is also something we’ve always known, but forgotten to mention – or neglected to research more carefully, or gotten too tired to consider. All the more reason, then, to think about it anew.
In the writings of new legal realists are many invitations to cross boundaries, to think the connections (and divisions) between law and social science anew.
For more on this topic, see http://lsolum.typepad.com/legaltheory/2012/06/brian-leiter-university-of-chicago-law-school-has-posted-legal-realisms-old-and-new-on-ssrn-here-is-the-abstract.html