Edited by Shauhin Talesh, Elizabeth Mertz, and Heinz Klug
Book Description:
This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law.
Highlighting a contrast with the current Empirical Legal Studies movement, chapters employ a variety of theoretically grounded methods to understand law and address legal problems. They explore an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding with an examination of how different social science disciplines intersect with NLR.
Incorporating global perspectives, the Research Handbook on Modern Legal Realism will be a key resource for scholars and students of legal theory and socio-legal studies. Illuminating the best approaches for combining social science considerations with expert perspectives on legal doctrines, it will also be of interest to practitioners and policy makers working in fields such as criminal and family law.
1. Introduction to the Research Handbook on Modern Legal Realism
By Shauhin Talesh, Elizabeth Mertz and Heinz Klug
This introductory chapter shows the distinctive qualities of New Legal Realism (NLR), captures where it stands around its fifteenth anniversary, and explains the goal of the larger book. In doing so, we demonstrate NLR’s fruitful continuation of the legal realist adventure as it reaches beyond historical and national boundaries to form new international conversations, based heavily on law-and-society networks and traditions. In addition, we provide a contrast to Empirical Legal Studies, because the NLR project clearly visible in this volume does not just use quantitative methods to study lawyers and legal institutions as they have been traditionally viewed. Instead, it includes chapters by social scientists and law professors using social science theory and multiple methods to understand law and address legal problems – across an impressive variety of subject areas such as immigration, policing, globalization, legal education, and access to justice. Finally, it offers a series of chapters from scholars – across an array of law and social science disciplines – explaining what particular disciplinary approaches offer to the process of translating law and empirical research. Overall, this volume highlights the powerful virtues of new legal realist research and an appreciation and awareness of the challenges of translation between social science and law.
PART I. VARIETIES OF LEGAL REALISM – THEN AND NOW
2. Realism then and now: Using the real world to inform formal law
By Elizabeth Mertz (with Marc Galanter)
This essay reframes part of the U.S. legal realist legacy through a provocative comparison of foundational thinkers and current legal realists. It challenges readers to ask what stops today’s realism from achieving recognition as continuing the older tradition. In particular, this essay focuses on how both movements use knowledge of how law works in action to inform law reform efforts. It begins with the example of Karl Llewellyn and Soia Mentschikoff’s work on the famous Uniform Commercial Code — as narrated by sociolegal scholar Marc Galanter. Galanter also describes the many threads of legal realist work at the University of Chicago at that time. Galanter himself is part of a “bridge generation” that continued the realist project within the Law & Society movement, which is briefly reviewed. The essay then highlights work by two new legal realists. Thomas Mitchell has led a major law reform project, based on empirical research, to prevent erosion of poor – often African-American – landowners’ rights in the rural U.S. south. Bernadette Atuahene uses pathbreaking urban ethnographic research to guide legal interventions that address illegal foreclosures on homes in underserved communities. Questioning unexamined assumptions, we uncover a vibrant legal realism continuing from earlier times to now.
3. East Coast Legal Realism and its progeny
By Laura Kalman
This chapter provides a history of East Coast legal realism, which is what many scholars think of as “legal realism,” and its relationship to subsequent jurisprudential movements down to the New Legal Realism. It maintains that jurisprudentially, legal realism was nothing special. Yet, while it simply built on Holmesian skepticism and sociological jurisprudence, legal realism also represented a position within the legal academy. Its East Coast adherents combined a vivid, polemical, modernism with functionalism and, frequently, left-of center politics during the 1920 and 1930s. They hoped to transform legal education. They tried to increase law’s predictability for students, practitioners, and judges, by acknowledging that legal rules, as traditionally derived, did not guarantee legal certainty. Having cleared the ground of underbrush by showing how law was not made, East Coast realists freed themselves and judges to formulate. more accurate, improved legal rules, concepts, and principles. By highlighting the role of idiosyncrasy in judicial decision-making, focusing on fact-patterns involved in disputes, and reaching out to the social sciences, East Coast realists hoped to make law more predictable, efficient and a better tool of policy. Though they achieved only limited success, East Coast legal realism cast a long shadow pedagogically, politically, and jurisprudentially.
4. From the periphery to the center and back? A brief history of Midwest Legal Realism
By Paul Baumgardner and Ajay K. Mehrotra
Leading histories of American legal realism frequently focus on the careers, writings, and intellectual legacies of realists who worked in prestigious Northeastern law schools. This chapter pushes back against these orthodox accounts, not for the purpose of dismissing the relevance of legal realism or its early proponents in the Northeast, but instead to recover the significance of legal realism in the Midwest. Our historical investigations demonstrate how social, political, and intellectual conditions within this particular geographical region has generated a peculiar history and legacy of legal realism. From the first wave of legal realism in the early 1900s to successor waves in the second half of the century, Midwestern scholars and institutions have profoundly shaped American legal realism and also contributed to valuable reforms in American law and legal education.
5. European New Legal Realism: Towards a basic science of law
By Jakob v. H. Holtermann and Mikael Rask Madsen
This chapter outline the position of European New Legal Realism (ENLR) and compares it to variations of American Legal Realism (ALR), new and old. We argue that the fundamental difference between the ENLR and ALR is its turn – or return – to epistemology. Europe legal realism has been – and, in our view, is – largely concerned with devising the foundations of a scientific study of law, one that can make law intelligible on scientific grounds. It is in search of the premises of law as a basic science – and a science on par with all other forms of academic endeavor, including the natural sciences. To make this argument, we first outlines the intellectual roadmap of our position before turning to questions of the epistemology of legal science. We draw on the unique insights offered by a combination of Weberian interpretive sociology of law and Scandinavian realism as propounded by Alf Ross. We draw out their strikingly congenial conceptions of legal validity as a genuinely empirical object of study, and how it differs from American legal realism and its reliance on pragmatism. Against this background, in part IV, we then link these precursors of European legal realism to the program for a rigorous science of law laid out by Pierre Bourdieu with a view to the particular challenges of studying law. We argue that to make law intelligible as an object of legal realist inquiry, one needs to devise an approach that, at one and the same time, takes seriously both the production of law and those precise – yet changing – social conditions, which makes that production possible.
6. Lessons for new Legal Realism from Africa and Latin America
By Alexandra Huneeus and Heinz Klug
There is no self-described New Legal Realist movement within Latin American and African academies. Yet legal scholarship from these regions abounds with examples of work that performs the two most essential components of New Legal Realism: 1) it steps beyond law’s self-description as neutral and self-contained so as to examine its relationship to social and political phenomena; and 2) it employs the questions, theories, and methods of the social sciences to do so. This chapter provides a bird’s-eye view of some of this NLR-friendly scholarship from Latin America and Africa in recent decades, with an eye to how it could move and inform today’s NLR scholars. Using transformative constitutionalism as an example of a concept developed in the global south, it argues that scholars based in the global north should take seriously the theories and questions emerging from these two regions, and allow them to reshape their own thinking.
PART II. LEGAL REALIST SCHOLARSHIP MEETS CURRENT DILEMMAS
SECTION A. POLICING
7. Police violence in São Paulo: Between the asphalt and the hill
By Sebastian Sclofsky
Police violence has been a common feature among old and new democracies. Police violence and killings are common tools deployed by the state in the fabrication and maintenance of a social and racial hierarchical order in much of the Western world, and particularly in Brazil. Police power represent the sovereign’s power to use force, including lethal force. In São Paulo’s favelas, police violence is used to impose order, what residents call the “law of the hill.” Yet, the violence to impose order is also exercised by the PCC, a criminal organization, which controls much of the territory and Imposes what is called the “law of the hill.” This chapter examines how residents of these spaces learn to live within these two legal systems and sometimes deploy the law to resist violence. It analyzes how both legal systems are experienced in the ground and how these experiences affect the law.
8. Police torture: A case for interdisciplinarity
By Nick Cheesman
Rather than a flag to hoist, around which to assemble, New Legal Realists have a big tent, open to all comers interested to produce genuinely interdisciplinary knowledge about law. Big tents are exciting places to be in, but they can be hard to figure out too: where to look and whom to see? How to translate ideas and findings from one discipline to another? And to what ends? This chapter advocates for the merits of specific and shared matters of concern through which to produce genuinely interdisciplinary forms of knowledge about law. It makes its case via one such matter: torture by the police; a quintessentially legal problem, but also a peculiarly political one, imbricated in questions of public order and the relation of law to violence. Torture by the police is the kind of problem that recommends itself for genuinely interdisciplinary inquiry and translation, which are hallmarks of New Legal Realism, and demands research of actual practices and the ideas that animate them so as to open opportunities for constructive legal and political interventions.
9. A Legal Realist approach to black-on-black policing
By Devon W. Carbado and L. Song Richardson
The problem of police violence against African Americans is a salient feature of nationwide discussions about race. Drawing on empirical, historical, and theoretical literatures, we examine how, if at all, black police officers’ race might shape how they police other African Americans. Fundamental to our analysis of black police officers is a Du Boisian conceptualization of race and professional identity – namely, that African American police officers have to negotiate and reconcile two historically distinct strivings – the strivings to be “blue” and the strivings to be “black” – in one “dark body.” As we explain, how they perform that negotiation and reconciliation is not simply a matter of individual choice, individual agency, and individual commitment. Structural factors are at play as well. We show that the very factors that explain why white police officers might systematically overpolice and deploy violence against African Americans arguably implicate black police officers as well. Moreover, the pressures black police officers likely experience to fit into their departments potentially compound the problem. We conclude that the pursuit of diversity in the context of policing will not, without more, fundamentally change how African Americans experience the police.
SECTION B. IMMIGRATION
10. Transgressing boundaries through new Legal Realist approaches: Affinity and collaboration within ethnographic research on immigration law and policy
By Susan Bibler Coutin
New Legal Realist approaches often examine law-in-practice, as experienced by the agents who carry out the law, the individuals who are law’s targets, and the communities that law brings into being. Ethnography, a flexible research process that positions researchers within these communities, is a particularly appropriate a new legal realist research method. Using the example of ethnographic research regarding U.S. immigration law and policy, the author explores how crossing boundaries between law and social sciences, research and praxis, and individual and collaborative research produces new legal realist approaches. Law and social sciences can be bridged by emphasizing their affinities, such as interviewing, note-taking, crafting papers or statements, deploying evidence to substantiate arguments, citing relevant studies and legal opinions, and gaining insight into social contexts. Boundaries between research and praxis can be crossed through engaged research and through fieldwork that places researchers in the role of practitioners, thus facilitating the translation of research findings into policy arenas. Assembling interdisciplinary research teams crosses boundaries between individual and collaborative work and furthers new legal realist approaches by making “translation” intrinsic to the research process itself.
11. Enacting immigration politics in a juridical register
By Leila Kawar and Jonathan Miaz
Law and politics are inextricably entangled in the immigration policymaking domain, as a range of actors mobilize and respond to judicial engagements with immigration and asylum questions. Leveraging a comparative analysis of three national case studies, we examine the differing registers through which judicialized immigration politics has been enacted in the United States, France, and Switzerland. Our empirical analysis of participants’ shared understandings of what is happening when immigration policy is judicialized lifts up the shared repertoires that emerge from routinized interactions between repeat players in this field. In the United States, we find that the judicialization of immigration policy centers on open confrontation between litigators and administrators. In the French context, by contrast, the judicialization of immigration politics is performed in the register of instruction and collective adherence to legal formalism. Finally, in Switzerland, the judicialization of asylum policy consists of the massive individual appeals against administrative decisions and centers on competing assertions of expertise, particularly over country conditions information. This comparative analysis, drawing on a relational and pragmatist methodology, reveals that the register through which judicialized immigration politics is enacted varies substantially across national contexts and also demonstrates the extent to which these distinct registers are self-reinforcing.
12. Critical legal rhetoric takes on immigration and refugee law
By Sara L. McKinnon
This essay provides an overview of Critical Legal Rhetoric as an approach to study the law that examines the practical force of language in legal contexts. Narrowing in on immigration and refugee law, the chapter examines the gendered nature of refugee law’s emergence how the conceptualization of gender has impacted women’s ability to seek refugee status. The chapter then considers the way dominant discourses attach to the subjectivities and bodies of non-citizen subjects, enabling or constricting the ability to gain relief. In total, the essay offers as a practical, realist framework for understanding how non-citizen subjects have been discursively constituted through legal struggles, and also to understand the precarities that immigrants and refugees face as they navigate the legal structures of international and national law.
SECTION C. LEGAL EDUCATION
13. New Legal Realism goes to law school: Integrating social science and law through legal education
By Emily Taylor Poppe
Legal Realism was both a stunning success and a dismal failure; while it pierced the veil of legal formalism, it failed in its attempt to integrate law and social science. New Legal Realism seeks to address the failings of Legal Realism, by directing greater attention to the challenges of incorporating social scientific insights into legal discourse. In this chapter, I argue that to accomplish the integration of social science and law, legal education must be reoriented to further the goals of New Legal Realism. In particular, I consider how the formal curriculum, hidden curriculum, and law school pedagogy might be reformed to provide skills, knowledge, and values that are consistent with New Legal Realism’s emphasis on empiricism, interdisciplinarity, and social contextualization. Using civil procedure as an example, I illustrate what a New Legal Realist approach to legal education might look like. Acknowledging the institutional and ideological barriers to this approach, I argue that the present moment offers a unique opportunity for New Legal Realism to succeed.
14. Teaching an interdisciplinary law class
By Marsha Mansfield and Elizabeth Mertz
From its inception, the New Legal Realism (NLR) has included a focus on law teaching right alongside its concern with bringing law and social science together in scholarship and in law reform. In all three of these emphases, NLR follows in footsteps laid down by the original U.S. legal realists. In particular, legal realists like Jerome Frank advocated for clinical education as a way of bringing legal education closer to issues of law in action, law in the real world. While this effort was partially successful, the growth of clinical education since that time has generally proceeded in parallel to standard doctrinal teaching, with clinical faculty occupying a separate track from the law faculty who have traditionally occupied the tenure-track jobs, while largely publishing on and teaching doctrinal law. This unfortunate bifurcation replicated the divide between law-in-books and law-in-action described by original realists. This chapter describes a collaborative teaching effort that combined clinical, legal doctrinal, and social science training as an effort to overcome that divide in and through law teaching. Like other NLR scholars, Mansfield and Mertz suggest that teaching can itself be a practice that contributes to important new interdisciplinary knowledge.
15. Ambition and reality: Reforms of legal studies at the Faculty of Law at the University of Copenhagen
By Louise Victoria Johansen and Anne Lise Kjær
The aim of this article is to present our investigation of the recent attempt to reform legal education at the Faculty of Law in Copenhagen (as from 2011 to the present). We view the Copenhagen reform efforts as a local instance of the worldwide trend of legal education in flux. Although the article takes its point of departure in recent events, we include more than one hundred years of legal reform efforts as regards legal education in Denmark. We do so in order to place the most recent reform in a historical context. Based on qualitative and quantitative approaches, our analysis combines a topical analysis of the argumentation used in the discourse community of educational reformers at the Faculty of Law with a critical policy analysis of ‘the need for change’ expressed throughout one hundred years of reforms. The topical analysis pinpoints how lawyers and legal academics think in terms of the oppositional pair ‘qualities and defects’ of legal education and the legal profession. The critical policy analysis further sets the topical analysis within a broader framework that allows us to answer the question why legal education was and still is debated in very specific consistent ways. This approach highlights how demands for ‘change’ also seem to stem from a fundamental schism in legal thinking that paradoxically lives on , not in spite of but by virtue of the many attempts at reforming legal education.
16. New Legal Realism, eCRT, and the future of legal education scholarship
By Meera E. Deo
Contemporary academic challenges and opportunities suggest that the time may be ripe for collaboration between the nascent fields of New Legal Realism (NLR) and “eCRT,” empirical methods in Critical Race Theory. This chapter reviews overlapping priorities from both movements, recognizing that many recognized tenets of NLR are also established goals for eCRT. Scholarship merging both NLR and eCRT could be especially fruitful in furthering improvements to legal education, including both recruitment and retention of traditionally underrepresented students and faculty. Yet, while there may be significant overlap in terms of topics and even methods, core commitments must also align for true collaboration between the fields. This is especially true given the historical trajectory of both the original Legal Realism and CRT movements, which themselves gave rise to NLR and eCRT. True collaboration depends in part on NLR as a movement committing to both incorporating race into the central features of its research agenda and resisting hegemonic structures of racism as the pathway toward greater equality. Ideally, common core commitments, methods, and priorities will set the stage for an ongoing partnership between NLR and eCRT.
SECTION D. INTERNATIONAL LAW, GLOBAL STANDARDS, AND REGIME CHANGE
17. The uses and abuses of global social indicators
By David Nelken and Mathias Siems
The chapter aims to show why the uses and abuses of global social indicators is a topic well suited to research guided by the new legal realism. Social indicators are ubiquitous as a form of social intervention designed to measure and monitor a variety of key social issues – whether it be levels of business friendliness, corruption or human trafficking, respect for the rule of law and free speech, or compliance with codes of corporate responsibility. But indicators do not only provide information, they also exert authority and so need to be better understood as an example of the normative uses of quantification. The chapter first defines indicators, distinguishes kinds of indicators, relates them to other kinds of normative regulation and discusses how they are used. It then examines what abuse of indicators could mean, highlights the many problems with making, implementing and interpreting them, and revisits what are called their knowledge and governance “effects”. It concludes by considering the possibilities for re-forming indicators by drawing on resources from the market, science, politics and law.
18. “The life of the law has not been logic; it has been experience”: International legal ethnography and the New Legal Realism
By Jens Meierhenrich and Richard Ashby Wilson
Scholars in law and the social sciences are calling into question the conventional doctrinal account of how international law works. We join this chorus by extolling the virtues of a new method for studying the social life of international law: international legal ethnography. Ethnographic approaches advance the project of the New Legal Realism by explaining legal outcomes through a multidisciplinary study of concrete institutional practices and the subjectivity of legal actors in international justice institutions. A full understanding of why international courts produce influential legal precedent as well as incoherent law and failed prosecutions requires a grasp of both international legal doctrine as well as the organizational culture and quotidian practice of international organizations. International justice institutions are neither insulated from the vagaries of global politics, nor simply reducible to them. Because of their unique and structurally-fragile position betwixt and between national legal cultures, international criminal tribunals have of necessity created a socialization process that inculcates distinctive norms, practices and values among its staff, a process that has identifiable consequences for legal process and outcomes. Our ultimate goal is neither naïve faith in the probity of international tribunals, nor a reflexively moral dystopianism, but a clear-eyed assessment of both the successes and shortcomings of international justice institutions.
19. The judicialization of politics?
By Heinz Klug
During the second half of the twentieth century a notable shift occurred in the balance of formal legal power between legislators and judges across the globe. This expansion of judicial power was identified and critiqued as a “judicialization of politics” or described as the emergence of a “juristocracy”. While acknowledging this trend, this Chapter argues that a New Legal Realist approach, which combines the acknowledgment of increased judicial power with an understanding of the inherent institutional limitations of courts as well as an empirical understanding of historical developments that undergirded this rise in judicial power, might provide a more nuanced view of judicialization. Finally, the chapter concludes that given the recent rise of populism and authoritarian politics around the world there is no guarantee that any shift in power is permanent. This perspective thus questions the notion of a simply expanding juristocracy.
SECTION E. ACCESSING JUSTICE THROUGH LAW
20. A realist perspective on legal strategy in (the) practice
By Liora Israël
This chapter builds on the ethnography of a cause lawyer’s practice, to identify the ways in which legal strategies are concretely elaborated. More precisely, the cause at stake in this paper is LGBT rights in France, before the legalization of same-sex couples marriage. The cases depicted refer to family law issues for same sex couples, notably regarding parental rights. In tension between the will of the client and the anticipation of the court’s position, the framing of the legal strategy by the lawyer is often a way to find out how to render them compatible. However, depending on the level of jurisdiction, the objective varies from the best solution to a private problem, to the obtention of a precedent. In examining various legal settings and judiciary steps, the chapter demonstrates how a NLR perspective can build on ethnography to better apprehend the complex interweaving of law and politics at the level of legal strategies “in practice”.
21. Access to justice
By Rebecca L. Sandefur
Empirical research into access to justice is enjoying a renaissance. The new research resonates strongly with the concerns and approaches of the new legal realism. Contemporary access to civil justice research comprises four distinct approaches, each reflecting the intersection of two different dimensions framing scholars’ research questions. One reflects a choice between manifestations of law as the reference point of the research: the “law on the books” or the “law in action.” The other reflects how researchers define access to justice, understanding it as principally about process, or as some kind of substantive experience, result or outcome. More of the new research is moving beyond a narrow focus on the evaluation of specific interventions, and more is appearing in peer-reviewed venues, subject to disciplines’ requirements for scientific rigor and theoretical engagement and engaged in broader scientific conversations. This new activity is the foundation for development of a robust and coherent access to justice research agenda that can enrich understanding of what law is and how it works.
22. Planet of the insurers: How insurers shape and influence law and impact access to justice
By Shauhin Talesh
Applying a New Legal Realist framework, this chapter uses the insurance field as a pathway for exploring how insurance institutions shape law in formal and informal settings. Consistent with new institutional organizational sociology studies that highlight how organizations influence the meaning of compliance, I show how the insurance field, largely through a lens anchored around risk, filters and mediates what law means through a risk-based logic. I begin by explaining how insurance exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Next, I show how the presence of liability insurance often shapes how civil lawsuits are structured. I then pivot to the criminal justice system where risk assessment and actuarial techniques increasingly are used to categorize criminals with varying degrees of dangerousness. I then show how risk management now permeates and influences how many judges operate in various problem-solving courts. Finally, I reveal the processes and mechanisms through which insurer risk management techniques influence how organizations understand law and compliance. I conclude this chapter by noting that the insurance field’s shaping of law in formal and informal settings can have both positive and negative impacts for achieving access to justice.
23. Rendering rural property visible to law: A role for New Legal Realism
By Thomas W. Mitchell
The legal issues that impact rural people in the United States have been largely invisible to legal scholars, lawyers, judges, legislators, and the media. Unsurprisingly, people of color in rural areas have been particularly rendered invisible. This chapter demonstrates how using a New Legal Realism (NLR) framework can help remedy a failure in empirical and legal approaches in some legal scholarship that explicitly or implicitly purports to be of relevance to rural America, by requiring more rigorous questioning of framing assumptions, stereotypes, and forms of translation between social science and law. Legal and sociolegal scholars who would employ a more careful and inclusive empirical approach that would generate better data could help uncover the difficulties people of color in rural areas experience and could help improve perceptions about the actual conditions in many rural places. For example, such scholarship could help make clear that agricultural long ago ceased to be the main pillar of most rural economies, notwithstanding widespread incorrect assumptions to the contrary. The chapter concludes with examples of informed property law scholarship and policy initiatives, including the author’s own, showing how empirical research, media attention, and legal reform efforts can combine to substantially improve law and policy in rural areas.
24. Urban property and housing rights in the time of the coronavirus
By Lisa T. Alexander
The Coronavirus or Covid-19 proliferated in the United States in 2020, and it is the most contagious virus without a vaccine or treatment since the 1918 Spanish Flu. The virus highlights the advantages and the limitations of the dominant 18th Century Anglo-American conception of property ownership, as individualistic, sole dominion, over independent, clearly delineated, parcels of land and space. The emergency and public health tragedy that the Coronavirus has wrought also unveils the contingent nature of ownership, security of tenure, and the right to exclude for the vast majority of American residents. The federal response to this deadly public health crisis has been inadequate to stem the ensuing economic devastation and housing instability. The lack of federal action is its own unique problem, but it also exposes the need for greater social and economic rights in the United States, including security of tenure and a right to housing. New legal realist methodologies can reveal the chasm between the legal and economic crises occurring “on the ground” and the federal and state responses. Scholars and universities working with regional public and private collaborations will be increasingly necessary to develop new legal realist approaches to data development and analysis that will identify inequities and inadequacies in the American response, as well as new property arrangements that will better meet Americans’ future housing needs.
PART III. DISCIPLINARY PERSPECTIVES
25. Anthropology
By Riaz Tejani
Anthropology, the study of human culture through fieldwork, has long had a special relationship with American Legal Realism. In almost any way we conceive of realism, the discipline of anthropology contributes valuable insight because, most generally, it maintains a close correspondence between abstract thought and observable practice. In this brief essay, I describe the key ideas of American, Anglo and European sociocultural anthropology with a particular focus upon studies of law and legality. I then turn to the main practice of anthropology, ethnography, in order to explore how disciplinary ideas have been developed and reconsidered operationally through systematic “encounters” with legal actors. I conclude the chapter by revisiting the debates in American Legal Realism, both classic and new, to argue that Anthropology remains an indispensible framework and method for understanding “law in action” today.
26. Sociology of law and New Legal Realism
By Calvin Morrill and Lauren B. Edelman
This chapter sketches the contours of the dual trajectory of the sociology of law in the writings of nineteenth century European social theorists and early twentieth-century Sociological Jurisprudence and Legal Realist scholars in American law schools. We suggest that these two paths came together in the early law and society movement, which greatly influenced and overlapped with the sociology of law. Early law and society scholarship focused on the “gap” between the “law-on-the-books” and the “law-in-action,” the roles of formal and lay legal actors, and, most importantly, the interplay between law and social inequality. Later work turned to plural normative systems and disputing, legal consciousness, law and social movements, law and organizations, and law in comparative and global contexts. The chapter closes by considering the relationship of the sociology of law and New Legal Realism, focusing on their overlap and on the ways in which the NLR project diverges from the sociology of law. We identify both opportunities and constraints for the NLR project of translating sociology of law into law schools, legal scholarship, and policy.
27. The pitfalls and promises of a New Legal Realism rooted in political science
By Jeb Barnes
Political science seems a natural ally for the new legal realism movement. Legal studies and political science have a long tradition of cross-pollination, nearly every political science department has legal scholars and nearly every law school has political scientists. Yet there are potential pitfalls in applying concepts and methods from political science to the study of law and courts. These pitfalls stem from adopting rigid, methods-driven approaches that tend to treat law as formal commands and equate law and courts with other forms of politics and policymaking. The result can be studies that rely on overly narrow conceptions of law, which ignore how law, politics and policy are mutually constitutive, and overlooks how law and courts provide a distinct institutional setting for politics and policy-making. The good news is some scholars effectively leverage political science while avoiding these pitfalls, pointing towards an inter-disciplinary, methodologically pluralistic research agenda that explores the similarities and differences of politics and policy-making in legalistic and non-legalistic (or less legalistic) settings. An irony is that this type of new legal realism might partially revive the law/politics distinction that traditional legal realism once derided.
28. Psychology and legal realism
By Tom R. Tyler
Psychologists have a long history of doing research on the legal system and using their findings to influence legal doctrines and legal procedures. Their efforts support the goal of legal realism by promoting evidence informed law. Three areas of psychological research are reviewed: evidence in criminal justice procedures; psychological research on human reasoning, intuition and bias; and studies of human motivation. Two key criminal justice procedures are eyewitness identification and interrogation. In both cases research by psychologists suggests important errors that result from current practices and provides evidence informed fixes. Studies of human intuition and bias paint a picture of legal actors who make many decisions based upon non-rational factors, an influence that is often outside people’s awareness. These findings raise fundamental questions about a system that relies heavily upon the belief that discretionary decision-making by authorities can avoid errors and that legal actors can and will ignore their biases. Finally psychological studies of human motivation show that the fundamental framework through which the legal system encourages compliance with laws – deterrence – is outperformed by other models emphasizing social motives. All of this research suggests the important role that psychology can play in a legal realism approach to law.
29. User’s guide to history
By Sarah A. Seo
Historical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next.
30. Jurisprudence and legal theory
By Brian H. Bix
Traditional analytical philosophy has too frequently either ignored the work of legal realism or misunderstood it (though the realists have also been guilty of ignoring and misunderstanding analytical legal philosophy). There have, however, been some productive exchanges: realists pointing out how empirical work would strengthen and deepen traditional jurisprudential theories, and analytical theorists showing how analytical theories do, and should, ground the selection of empirical work. The present article offers an overview of those exchanges, focusing in particular on the works of H. L. A. Hart, Hanoch Dagan, and Brian Leiter.
31. Law as a discipline: Legal theory, interdisciplinary legal theory, and ways of speaking legitimacy to power
By Bryant G. Garth
The essay examines the debate about whether law is a discipline, framed typically in the United States as social science on one side, and legal formalism on the other. It argues that the dichotomy is misleading, because the reigning version of legal theory in the United States, even in the most interdisciplinary law schools, insists on an evolving combination of legal normativity and social science. The legal formalism does not go away and is part of what keeps social science in law schools from being dismissed as “merely descriptive” and “untheoretical.” The essay notes that if we look to other countries, legal formalism is also the key to legal theory – or legal science as termed on the Continent. There are very different models, but they all can be traced to the origins of the legal profession and legal education in the medieval era. The US version of legal theory is currently ascendant in global competition because of the power and prestige of the US, which we naturally celebrate from a US perspective, but it also brings a relatively conservative model of law and social change and a relatively weak model of the state.