2018: CRN 28: Realist and Empirical Legal Methods
Schedule of Events
PANEL 1: Courts and Legal Decisionmaking in Realist Perspective
Thursday Session 1, 8:00 a.m. – 9:45 a.m.
Paper Session
Room: Oxford
Once we step outside of formalist assumptions about how courts operate, empirical sociolegal studies has much to contribute beyond the usual studies of judges’ politics. This panel showcases the richness of these alternative empirical approaches, from judges’ reputational position, to the impact of individual judges’ perspectives, to the almost invisible way courts take in non-legal institutional and professional perspectives. In each case, aspects of the social context within which decisions are made matter more than judges’ political alignments. That social context can include the particulars of individual judges’ and courts’ habitus, the impact of reputation within the state (democratic or otherwise), relationships between law and other institutions or professions, and much more. Panelists push back at empirical legal studies or judicial politics research that stays exclusively mired in tracking connections between formal law and judges’ political affiliations, pointing the way to a richer conversation between such studies and other work on judges and courts from the empirical sociolegal studies field.
Moderator: Céline Bessière (Université Paris-Dauphine)
Presentations:
- Shauhin Talesh (UC Irvine): How Legal Intermediaries Facilitate and Inhibit Social Change
- Diego Vasconcelos (Universidade Federal de Rondonia): Judicial Reputation and Public Opinion: What is the role of judges in democracies?
- Dana Phillips (Osgoode Hall Law School): Knowledge at the Crossroads: Constitutional Fact-Finding and The Treatment of Experiential Knowledge in Canada (AG) v. Bedford
Abstracts:
How Legal Intermediaries Facilitate and Inhibit Social Change
Shauhin Talesh
This article explores how legal intermediaries facilitate or inhibit social change. We suggest the increasing complexity and ambiguity of legal rules coupled with the shift from government to governance provides legal intermediaries greater opportunities to influence law and social change. Drawing from new institutional sociology, we suggest rule intermediaries shape legal and social change, with varying degrees of success, in two ways: (1) law is filtered through non-legal logics emanating from various organizational fields; (2) law is professionalized by non-legal professionals. We draw from case studies in the United States and France to show how intermediaries facilitate or inhibit social change. This article argues that rule intermediaries, i.e., state, business, and civil society actors that affect, control or monitor how legal rules are interpreted, implemented or constructed once they are passed by public legal institutions, facilitate and inhibit social change in society. In doing so, we pivot the discussion about law and social change away from debates about the power of formal legal institutions to effectuate social change. We also pivot away from general normative, instrumental, cognitive or political theories to explain social change.
Judicial Reputation and Public Opinion: What is the role of judges in democracies?
Diego Vasconcelos
Does freedom of expression allow judges to declare any content in a democracy? The present paper seeks to answer this question based on the analysis of recent cases in the Brazilian context, especially the recent case of the statement of the Minister of the Superior Court of Justice (Superior Tribunal de Justiça), Og Fernandes, who questioned the possibility of military intervention on his personal page in Twitter and ignited the Brazilian debate on the limitation of certain pronouncements by judges. We will argue that there are social obligations on the part of the judges within the democracy and that institutional role confers prerogatives and obligations on the part of the magistrates regarding declarations in the media and the formulation of public opinion. We argue these points of view from the perspective of the legal framework of Judicial Reputation Theory developed by Nuno Garoupa and Tom Ginsburg and the framework of Role Obligations developed by Michael Hardimon. We argue that the notions of both individual and collective reputation will define the limits of the social roles of judges, and that such limits depend on the role of the Judiciary in a given society. The hypothesis is that if judges’ opinions can affect institutional reputation, there must to be institutional limitations against it to protect the collective reputation of the judiciary branch.
Knowledge at the Crossroads: Constitutional Fact-Finding and The Treatment of Experiential Knowledge in Canada (AG) v.Bedford
Dana Phillips
In recent litigation under the Canadian Charter of Rights and Freedoms, controversial social issues are being adjudicated on the basis of increasingly voluminous evidentiary records directed at complex questions of social and legislative fact. Charter litigation has thus become an important site for the production, mobilization, framing and evaluation of knowledge about the social world. Taking a contextual approach to the study of evidence inspired by the New Evidence Scholarship, my research asks about the effects of recent constitutional fact-finding practices on the social equality of marginalized groups whose interests are at stake in Charter litigation.
In this paper, I focus on the treatment of experiential knowledge in Charter litigation, drawing upon the application record in Canada (AG) v. Bedford as a case study. Experiential knowledge of the sex trade enters the record in Bedford through multiple avenues, sitting at a crossroad with expert opinion, social science research, government reports, and other forms of knowledge. By examining these intersections, I uncover underlying epistemic judgments that are perpetuated through the fact-finding process. Building on the work of feminist epistemologists, I argue that the way the experiential knowledge of marginalized people involved in the sex trade is treated in Bedford has a direct bearing upon their struggles for equality.
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PANEL 2: Legal Education and the Legal Profession in Realist/Empirical Perspectives
Thursday Session 2, 10:00 a.m. – 11:45 a.m.
Paper Session
Room: Parlour Suite 7
A new generation of empirical researchers studying legal education and profession is emerging both within the law-and-society community and within the legal academy. In 2018, the American Association of Law Schools started a new section entirely devoted to empirical research on legal education and the legal profession. Within the Law & Society Association, younger scholars are starting a CRN devoted to research on legal education. The papers in this panel are testament to the fresh perspectives and questions this new generation are bringing to these time-honored topics. Panelists question the nature of interdisciplinarity itself, asking, for example, what place interdisciplinary research on legal education has within the broader umbrella of legal research performed by members of the legal academy. Along with this fruitful questioning come some constructive ideas for shifting interdisciplinary and trans-national exchanges, in keeping with the new legal realist goal of moving beyond critique. Is there a way, for example, to move those involved in rule-of-law projects to take better account of local contexts? Should scholarly movements that study law eschew politics and policy orientations? (Can they?) As U.S. law schools are pushed to produce students that are “practice ready,” how can or should empirical research on practice be deployed to help them address this issue in more realistic ways? In general, how can both qualitative and quantitative research inform legal training and education?
Moderator: John Bliss (Harvard Law School Center on the Legal Profession)
Commentator: David Sandomierski (Osgoode Hall, York University)
Presentations:
- Andrij Kowalsky (York University): Middleton USA: A Qualitative Study of Solo and Small Firm Practice
- Melissa Castan (Monash University), Kate Galloway (Bond University), Alex Steel (University of New South Wales): Research at the Crossroads of Law and Education: A Taxonomy of Legal Education Research
- Yannick Ganne (Universite de Strasbourg): The Problems of Policy-Oriented Research in Law Schools: A Comparative and Historical Perspective
Abstracts:
Middleton USA: A Qualitative Study of Solo and Small Firm Practice
Andrij Kowalsky
The Great American Recession hollowed out traditional labour processes within large American law firms. Due a stagnant employment market, total enrollments in law schools have decreased since 2010. With the legal labour supply outstripping demand, new lawyers will flock to solo and small firm practice. Yet, the curriculum in most U.S. law schools overlooks this reality, and is not preparing many future graduates to practice in this challenging mode of business organization (Herrera, 2012; Miller, 2015; Gouvin, 2015). In this sense, law schools are at a crossroads if their goal is to produce ‘practice ready’ lawyers. We require more studies exploring solo and small-firm practice for both pedagogical and empirical reasons. This paper presentation aims to provide findings of a qualitative study investigating the practice of law among solo and small firm lawyers in Middletown USA (Muncie, Indiana). In particular, empirical findings drawn from over two dozen interviews will address the research question of whether lawyers are surviving or thriving in a de-industrialized, small-city. Preliminary results suggest a bifurcation among practitioners. Indeed, while a small amount of respondents thrive by carving out niche practices, the remainder of the population survives by representing individuals.
Research at the Crossroads of Law and Education: A Taxonomy of Legal Education Research
Melissa Castan (Monash University), Kate Galloway (Bond University), Alex Steel (University of New South Wales):
As legal research evolves beyond traditional doctrinal research, embracing humanities and social sciences, increasingly legal research comprises inter-disciplinary inquiries and methods involving both academic and professional contexts. The discipline of law has long struggled to articulate the nature and method of legal research within the academy, and there remains a debate about the effect of inter-disciplinarity on its ‘true’ nature. Despite this, there is broad acceptance of diversity within research that is categorized as ‘legal.’ Meanwhile, research on and about legal education tends not to be considered in the same frame as legal research per se. Where legal education research falls outside institutional metrics that determine value, it will inevitably be sidelined. This paper draws on debates about nature of what makes research legal research, to make the case that research in legal education is itself integral to the discipline of law and therefore legal research. In doing so, we articulate a framework for understanding the nature and method of legal education research as part of the discipline of law. In conclusion, we argue that the scholarship of legal education broadly, and legal education research in particular, demonstrates its place within legal research practice.
The Problems of Policy-Oriented Research in Law Schools: A Comparative and Historical Perspective
Yannick Ganne
Scholarly movements in American law schools are famous for not always being politically neutral. Traditional ‘Law & Economics’ scholarship is well-known for its conservative orientation. ‘Critical Legal Studies’ and the contemporary critical perspectives are well-known for their liberal political views. The ‘Law and Society’ field itself, although very diverse, appears to be more liberal than conservative. But, beyond the political orientation of the movements, each individual scholar, each piece of scholarship, often appears to be political engaged. Is this the nature of ‘legal’ research? Should legal scholars be engaged in changing the law, in proposing policy improvements? Is there ‘knowledge-oriented’ research in law schools as well? Written from a French point of view, this paper is about the problems that policy-oriented research raises, from the Legal Realists until contemporary movements. Based on interviews with American and French legal scholars, and on the existing literature on the topic, this paper aims to discuss the theoretical implications of bringing politics within scholarly discourses.
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PANEL 3: Alternative Disciplinary Perspectives for and on Sociolegal Studies
CRN: 28 Thursday Session 5, 4:45 p.m. – 6:30 p.m
Paper Session
Room: Yorkville East
Scholars affiliated with CRN 28 exploring dimensions of a new legal realism are converging on an exciting version of STS (science and technology studies) that applies specifically to the social science surrounding the study of law. Like researchers in the philosophy of science and STS, the presenters in this panel push us to reflect on the practices and paradigms that guide knowledge production within law-and-society and affiliated empirical legal studies fields. One approach is to study researchers in this field through any of the methods associated with empirical research (quantitative, qualitative, experimental, historical). Another approach is to examine the field of sociolegal research through the lens of disciplines not usually associated with this field – from architecture to animal studies. In a move that can overlap with either of these approaches, scholars can also demonstrate how the use of novel disciplinary perspectives sheds new light on old legal and/or sociolegal problems. In the process, the presenters in this panel challenge us to re-think the concept of “interdisciplinarity” itself, throwing us into a world that also includes “infradisciplinary,” “transdisciplinary,” “transnational,” and “intradisciplinary” spaces (along with negative spaces!). These presentations draw us into intersections that include analyses of discourses and rhetoric, history and sociology, literature and cultural theory, domestic and international law – challenging us to rethink how we use methodology, what we mean by comparison, and whether we share anything resembling a paradigm as we venture across disciplinary divides. The panel will conclude with a discussion of CRN 28 and future directions.
Moderator: Shauhin Talesh (UC Irvine)
Commentators: Yannick Ganne (Universite de Strasbourg) and Mark Goodale (UNIL-Mouline)
Presentations:
- Mathias Siems (Durham University): Comparative Law as a Generic Method of Legal Research: New Units Beyond State Law
- Jane Eggers (Capital Post-Conviction Project of Louisiana): Negative Space in United States Habeas Practice
- Lucas Konzen (Federal University of Rio Grande do Sul): The Identity of Sociology of Law: A Survey of the Sociolegal Community Members’ Perceptions and Beliefs
Abstracts:
Comparative Law as a Generic Method of Legal Research: New Units Beyond State Law
Mathias Siems
What can comparative law compare? It is relatively uncontroversial that certain topics are included in its scope. For example, comparisons between English and French contract law, between US and Japanese constitutional adjudication, or between German and Polish court structures clearly belong to comparative law. Beyond this traditional scope, some comparatists include further topics, for example, suggesting that legal systems of the past, sub-national laws and informal forms of dispute resolutions can also be possible units of comparison. But why stop here? As many legal topics involve elements of comparison, it may only be logical to make any comparison in law part of the field of comparative law. However, such a suggestion about the broadening of comparative law also needs to assess whether the methods and concepts of comparative law can be suitable for other than the conventional units. Therefore, this paper will discuss both the possible extensions to the scope of comparative law and the corresponding power of its methodological toolbox to deal with these new units of comparison. It will do so in both an intra- and interdisciplinary spirit as the new units will be presented as units that derive from other fields of research, namely, legal history, sociology, literature and cultural studies, domestic legal studies, and international law.
Negative Space in United States Habeas Practice
Jane Eggers
In architectural practice, negative space-empty spaces purposefully left unbuilt-informs the way a building as a whole is experienced. Similarly in rhetoric, the syllogistic enthymeme functions as a marker for what is left unsaid: an unspoken premise to be supplied by the reader. In the practice of law, judges and lawyers necessarily rely on recognizing, valuing, and interpreting absences-both rhetorical and spatial. In this paper, we examine how negative space affects legal processes, by comparing the historical use of habeas corpus to contemporary practice. Habeas corpus exemplifies a Common Law right: freedom from arbitrary imprisonment. Historically, the writ set in motion a process that unfolded in space, as the prisoner was moved from prison to courthouse. In contrast, in current capital habeas practice, extensive pleadings are filed, but the petitioner is physically absent from much of the process. Although state capital habeas petitioners may seek redress in federal court for a variety of federal constitutional claims, current laws disfavor hearings and relief, prioritizing principles of comity, finality, and federalism. Concurrently, rhetorical absences in the laws allow for discretion, highlighting the tension between finality and federalism/comity. These negative spaces remain unacknowledged in modern legal discourses. Recognizing the negative spaces that exist in current habeas practice suggests a renewed political and legal interpretation of the Great Writ.
The Identity of Sociology of Law: A Survey of the Sociolegal Community Members’ Perceptions and Beliefs
Lucas Konzen
Identity issues remain a matter of controversy in sociology of law. This paper aims at contributing to this debate in an innovative way by means of a survey of the sociolegal community members’ perceptions and beliefs. As Thomas Kuhn’s theory of paradigms suggested, the existence of a scientific paradigm and its core elements can be discovered by scrutinizing the behavior and constellation of beliefs shared by the members of a given scientific community. Based on this theoretical insight, a survey of the sociolegal community members’ perceptions and beliefs was designed to test the hypothesis that, in spite of multiple existent approaches to the study of law in society, there is paradigm in the field of sociology of law. Data was collected through an online anonymous questionnaire administered to members of the Law and Society Association (LSA) and the Research Committee on the Sociology of Law (RCSL/ISA). Using quantitative data from respondents who are affiliated to scientific networks that can be considered broadly representative of the sociolegal community at a global level, this survey provided empirical evidence that allows us to understand better the identity of sociology of law as transnational and transdisciplinary field of scientific knowledge in current times.