Paper, Practice, Power, and Numbers

Paper Session (Friday, 5/29: 9:30am- 11:15am)

These papers combine to present the classic puzzle of New Legal Realism: what is the relationship
between legal doctrine and practice? Can formalist and empirical approaches intersect to study (and
teach) both law in the books and law in action? How does each approach embody and reveal power? This
panel explores the ways in which doctrine works in practice, examining how judges perform law and how
they invent fictional characters to protect real people. If there are dangers lurking in unexplored formalist
approaches to law, then there are also perils in applying statistical analyses to law if they are unmoored
from the social categories and meanings that inform them, as another panelist explains. Finally, the panel
addresses the complex task of incorporating the empirical approaches of New Legal Realism into legal
education outside of the United States. Rather than assuming that legal studies should simply adopt the
tools of social science without further attention to the law’s own categories and epistemologies, this panel
draws attention to the important work of translation required to move between law and social science.

Chair/Discussant:

Meredith Martin Rountree (Northwestern Law)

Presentations:

Formality and Impartiality in Legal Decision-Making
Jessie Allen (University of Pittsburgh School of Law)

Modernizing the “Reasonable Consumer” Standard
Linda Demaine (ASU)

New Legal Realism, Legal Education and Legal Research in Brazil. What Should We
Learn?
Sergio Nojiri (USP Universidade de São Paulo) and Roberto Cestari (USP Universidade
de São Paulo)

Race and Punishment from Garfinkel to Regression Analysis and Critical Race
Theory: Critical Reflections on Disparate Impact and Inferential Reasoning
Tim Berard (Kent State University)