New legal realism

New legal realism (NLR) is an emerging school of thought in American legal philosophy.

Although it draws on the older legal realism from the first half of the twentieth century, new legal realism differs in important ways. Notably, it moves beyond the older field’s emphasis on judges, courts, and formal legal systems. New legal realism examines law in people’s everyday lives, using an interdisciplinary combination of current social science methods, including qualitative, quantitative, and experimental approaches. It is characterized by a “ground-level up” perspective, which focuses on laypeople’s experiences with law as well as studying legal professionals and formal institutions. Research methods are chosen according to evolving research questions, responding to changing understandings as knowledge accumulates. This and other features of NLR fit well with the American pragmatist philosophical tradition. Some NLR scholars[1] view their pragmatist approach as a way of bridging between more objective social science (describing how it "is') and more normative policy goals (how it "ought" to be).

In addition, NLR takes “law on the books” seriously as a subject of study, including it as part of the overall system of law. The goal of NLR is to build an integrated social science research program on law that combines multiple methods and objects of study to give policymakers the most complete possible picture of how law operates. This includes non-instrumental uses of law. Some NLR scholars have focused on how to create the best translations of social science for law, based on the idea that law has its own priorities and special language that have to be taken into account (in addition to the technical and field-specific languages and approaches of the social sciences, which also create translation challenges of their own)(see, for example, the original LSI [2] and Wisconsin Law Review[3] symposia, and also subsequent NLR publications[4][5]).

History

The first New Legal Realist Conference held in North America took place in Madison, Wisconsin in June 2004. The Conference was jointly funded by the American Bar Foundation, an independent social science research institute in Chicago, and the University of Wisconsin Law School’s Institute for Legal Studies, a center for interdisciplinary research on law. Scholars from these two institutions as well as from Harvard Law School and Emory Law School held initial meetings to plan for the conference.

Prior to this conference, several different strands of new legal realist thought were emerging in the U.S. legal and sociolegal academic communities. In 1997, a group of scholars sponsored a panel entitled “Is It Time for a New Legal Realism?” at the 1997 Law and Society Association Meetings in St. Louis, Missouri. The panel drew a large audience of sociolegal researchers, who debated the issues involved in achieving high-quality translations of qualitative and quantitative empirical research in legal settings. One particular topic of discussion was the sometimes difficult relationship between scholarly traditions in the social sciences and in the legal academy. This strand of new legal realist thought led to the Madison conference, and to the first collaborative publication of research by a peer-reviewed social science journal (Law & Social Inquiry) [2] and a student-edited law review (Wisconsin Law Review).[3] These two publications examined problems such as poverty, globalization, and discrimination from the combined perspectives of law and social science, focusing on developing better methods for interdisciplinary translation.

Also in 1997, political scientist Frank Cross published an article entitled “Political Science and the New Legal Realism” [6] and legal philosopher Brian Tamanaha wrote a book on pragmatism and “realistic socio-legal theory”[7] The strand of new legal realist thought that originated with Cross examines judicial behavior using quantitative methods. Tamanaha is concerned with bringing the philosophical foundations provided by pragmatist theory to bear on sociolegal research.

Scholarship and events

Since 1997, there have been numerous events and publications focusing on New Legal Realism. After the initial NLR conference in 2004, subsequent NLR conferences have focused on methodology, on the relationship between empirical research and legal theory, on legal approaches to poverty and land ownership, on the legal treatment of gender-related issues in employment, and on statutory interpretation. NLR scholarship has been presented in panels at the annual meetings of the Association of American Law Schools and the Law & Society Association. NLR scholars were active in forming a collaborative research network, supported by the Law and Society Association, focusing on “Realist and Empirical Legal Methods.”

New legal realist scholars utilize empirical methodologies to examine discrimination, judicial decision making, global law, and other topics (see Further Readings section below). In the United States, several strands of New Legal Realism have been identified.,.[1][4] In particular, one dominant strand of the US New Legal Realist literature calls for a "bottom up" approach in which scholars pay attention to law on the ground, in everyday lives, using qualitative as well as quantitative methods. In 2005, Erlanger et al. called for using "bottom up" as well as "top down" empirical research.[8] Early symposia in US New Legal Realism demonstrated their "bottom up" approach by presenting actual examples of this kind of research in areas such as discrimination law and its effects in actual life, globalization and law, and law practice. By contrast, another strand proceeds using a more exclusively "top down" approach, focusing on courts and judicial opinions, and generally using quantitative methods. Scholars in Scandinavia are also returning to an interest in legal realism, building on their own earlier legal realist tradition.[9] In May 2012, the first European conference on new legal realism was held in Copenhagen, bringing together an international group of scholars from a variety of disciplines. The conference was organized by Jakob v. H. Holtermann, Mikael Rask Madsen, and Henrik Palmer Olsen. In 2014, the 10th Anniversary U.S. NLR Conference was held at the University of California-Irvine Law School.

See also

References

  1. 1 2 Nourse, Victoria, and Gregory Shaffer. Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? Cornell Law Review 95:62 (2009)
  2. 1 2 Law & Social Inquiry New Legal Realism Symposium 2006(4)
  3. 1 2 Wisconsin Law Review New Legal Realism Symposium 2005(2)
  4. 1 2 Suchman, Mark and Mertz, Elizabeth (2010) "Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism" Annual Review of Law and Social Science December 2010, Vol. 6, No. 1: 555-579
  5. ↑ Dagan, Hanoch (2013) Reconstructing American Legal Realism & Rethinking Private Law Theory Oxford: Oxford University Press, 2013
  6. ↑ Cross, Frank B. Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance. Northwestern University Law Review 92:251 1997.
  7. ↑ Tamanaha, Brian. Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. Oxford: Oxford University Press, 1997.
  8. ↑ Erlanger, Howard, et al.Is It Time for a New Legal Realism? Wisconsin Law Review 2005: 339 (2005)
  9. ↑ Bjarup, Jes. The Philosophy of Scandinavian Legal Realism Ratio Juris 18:1-15 (2005)

Further reading

GENERAL:

  • Barber, Nick (2013) "Legal Realism, Pluralism, and their Challengers" In European Legal Method: Towards a New European Legal Realism? Eds. Neergaard & Nielsen. Copenhagen: DJOEF Publishing
  • Dagan, Hanoch (2013) Reconstructing American Legal Realism & Rethinking Private Law Theory Oxford: Oxford University Press, 2013.
  • Erlanger, H et al. (2005) "Is It Time for a New Legal Realism?" Wisconsin Law Review 2005: 335-363
  • Kruse, Kate (2011) "Getting Real About Legal Realism, New Legal Realism and Clinical Legal Education" 56 N.Y.L. Sch. L. Rev. 295.
  • Macaulay, S (2005) "The New Versus the Old Legal Realism: 'Things Ain't What They Used To Be'" Wisconsin Law Review 2005: 365-403
  • Macaulay, S (2006) "Contracts, New Legal Realism, and Improving the Navigation of the Yellow Submarine" Tulane Law Review 80: 1161
  • Macaulay, S. & E. Mertz, "New Legal Realism and the Empirical Turn in Law" Introduction to Law & Social Theory (eds. R. Banakar & M. Travers), 195-210. Oxford: Hart Pub.)
  • Miles, Thomas and Sunstein, Cass (2008) "The New Legal Realism" University of Chicago Law Review 75: 81
  • Nourse, Victoria, and Gregory Shaffer. Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? Cornell Law Review 95:62 (2009)
  • Nourse, Victoria, and Gregory Shaffer. Empiricism, Experimentalism, and Conditional Theory, Southern Methodist University Law Review, Vol. 67 (2014). (.
  • Patterson, Dennis M (2002)"The Concept of Law Revised—Directives and Norms in the Perspectives of a New Legal Realism." Ratio Juris 14 (March)
  • Suchman, Mark and Mertz, Elizabeth (2010) "Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism" Annual Review of Law and Social Science 6(1)1: 555-579.
  • Tamanaha, Brian. (1997) Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. Oxford: Oxford University Press.
  • Carodine, Montr'e (2010) Keeping it Real: Reforming the “Untried Conviction” Impeachment Rule. Maryland Law Review 69:501-586.

STUDIES OF DISCRIMINATION AND LAW:

  • Albiston, KT (2009) Institutional Inequality, 2009 Wisconsin Law Review 1093
  • Albiston KT (2010) Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights On Leave, Cambridge University Press
  • Bielby, William T (2000) Minimizing Workplace Gender and Racial bias Contemporary Sociology 29:120-129
  • Donahue, John, and Siegelman, Peter (1991) The Changing Nature of Employment Discrimination Litigation. (1991) Stanford Law Review 43:983-1033
  • Edelman, Lauren (1990) Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace. American Journal of Sociology 95:1401-1440.
  • Gulati, Mitu, and Nielsen, Laura Beth (2006) A New Legal Realist Perspective on Employment Discrimination, Law & Social Inquiry 31: 797-800
  • Heckman, James and Payner, Brook (1976) Determining the Impact of Federal Antidiscrimination Policy on the Economic Status of Blacks: A Study of South Carolina, American Economic Review 79:138-177
  • Kaiser, Cheryl, and Major, Brenda (2006) A Social Psychological Perspective on Perceiving and Reporting Discrimination, Law & Social Inquiry 31:801-830
  • Kalev, Alexandra, and Dobbin, Frank (2006) Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits over Time. Law & Social Inquiry 31:855-904
  • Mitchell, Thomas (2005) Destabilizing the Normalization of Rural Black Land Loss: A Critical Role for Legal Empiricism. Wisconsin Law Review 2005: 557-616.
  • Nielsen, Laura Beth, and Nelson, Robert. Handbook of Employment Discrimination Research. (Springer, 2005)
  • Pager, Devah (2005) Double Jeopardy: Race, Crime, and Getting a Job. Wisconsin Law Review 2005: 557-616.
  • Pager, Devah (2007) Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago, 2007)
  • Sturm, Susan (2001) Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458

STUDIES OF THE LEGAL PROFESSION:

  • Chambliss, Elizabeth, and Bruce Green (2008) "Some Realism About Bar Associations,' 57 DEPAUL L. REV. 425
  • Conley, John (2006) Tales of Diversity: Lawyers' Narratives of Racial Equity in Private Firms Law & Social Inquiry 31: 831-854
  • Frankel, Douglas, Robert Nelson, and Austin Sarat (1998) Bringing Legal Realism to the Study of Ethics and Professionalism, Fordham law Review 67:697
  • Gorman, Elizabeth and Fiona M. Kay. (2010) "Racial and Ethnic Minority Representation in Large U.S. Law Firms." Studies in Law, Politics and Society 52: 211-238.
  • Nelson, Robert (1988) Partners with Power: The Social Transformation of the Large Law Firm
  • Price, Bruce (2005) A Butterfly Flaps Its Wings in Menlo Park: An Organizational Analysis of increases in Associate Salaries. (2005) wisconsin Law Review 713.
  • Wilkins, David and Gulati, Mitu (1996) "Why Are There So Few Black Lawyers in Corporate Law Firms?: An Institutional Analysis," 84 California Law Review 493.

STUDIES OF JUDICIAL DECISIONMAKING:

  • Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 Colum. L. Rev. 1 (2008)
  • C. K. Rowland & Robert A. Carp, Politics and Judgment in Federal District Courts, 183-84 (1996)
  • Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va. L. Rev. 301 (2004)
  • Clifford Chad Henson, Judging CERCLA: An Empirical Analysis of Circuit Court Decision-Making, J. Applied Econ. (forthcoming 2010) (available on SSRN)
  • Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. Cal. L. Rev. 431 (1996)
  • David A. Hoffman, Alan J. Izenman & Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 Wash. U. L. Rev. 681 (2007)
  • David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cin. L. Rev. 817 (2005)
  • Donald R. Songer and Reginald S. Sheehan, Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals, 36 American Journal of Political Science 235 (1992)
  • Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99 Colum. L. Rev. 215 (1999)
  • Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155 (1998)
  • Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 Cal. L. Rev. 1457 (2003)
  • Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, Charting the Influences on the Judicial Mind: an Empirical Study of Judicial Reasoning, 73 N.Y.U. L. Rev. 1434 (1998)
  • Harry T. Edwards and Michael A. Livermore, Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 Duke L.J. 1895
  • Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335 (1998)
  • James J. Brudney and Corey Ditslear, Designated Diffidence: District Court Judges on the Courts of Appeals, 35 Law and Society Review 565 (2001)
  • James J. Brudney, Sara Schiavoni & Deborah J. Merritt, Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 Ohio St. L.J. 1675, 137-38 (1999)
  • Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841 (2006)
  • Jeffrey Segal & Albert Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 American Political Science Review 557-565 (1989).
  • Jeffrey Segal, Lee Epstein, Charles Cameron, & Harold Spaeth, Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 Journal of Politics 812-823 (1995)
  • Keith T. Poole & Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting 229, 233-249 (1997)
  • Kenneth N. Vines, Federal District Judges and Race Relations Cases in the South, 26 J. Pol. 337 (1964)
  • Lee Epstein, Andrew D. Martin, Kevin M. Quinn & Jeffrey A. Segal, Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 Nw. U. L. Rev. 1483 (2007)
  • Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A. Segal, The Supreme Court During Crisis: How War Affects Only Non-War Cases, 80 N.Y.U. L. Rev. 1 (2005)
  • Lettie M. Wenner & Cynthia Ostberg, Restraint in Environmental Cases by Reagan-Bush Judicial Appointees, 77 Judicature 217 (1994)
  • Max M. Schanzenbach and Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U Chi L Rev 715 (2008)
  • Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. Econ. 463 (1990)
  • Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984
  • Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. St. U. L. Rev. 1259 (2005).
  • Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1 (1993)
  • William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study, Univ. of Chi. Law & Econ., Olin Working Paper No. 404 (2008) (available on SSRN)
  • Richard L. Revesz, Congressional Influence on Judicial Behavior? An Empirical Examination of Challenges to Agency Action in the D.C. Circuit, 76 N.Y.U. L. Rev. 1100 (2001)
  • Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1751-1756 (1997)
  • Richard Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 20 (1993)
  • Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. Legal Stud. 129 (1980)
  • Ryan J. Owens and Ryan C. Black, Strategic Bargaining on the United States Courts of Appeals, APSA 2009 Toronto Meeting Paper (available on SSRN)
  • Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051
  • Stanton Wheeler, Bliss Cartwright, Robert Kagan, and Lawrence Friedman, Do the haves come out ahead? Winning and losing in state supreme courts. 21 Law and Society Review 403 (1987)
  • Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. Rev. 1156, 1200 (2005)
  • Stephen J. Choi and G. Mitu Gulati, NYU, Law and Economics Research Paper No. 06-29; Georgetown Law and Economics Research Paper No. 913663; Georgetown Public Law Research Paper No. 913663; NYU Law School, Public Law Research Paper No. 06-21; 1st Annual Conference on Empirical Legal Studies Paper (available on SSRN)
  • Theodore W. Ruger, Pauline T. Kim, Andrew D. Martin & Kevin M. Quinn, The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150 (2004)
  • Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823 (2006).
  • Thomas J. Miles and Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. Chi. L. Rev. 761 (2008).
  • Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635 (1998)
  • Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 Wash. L. Rev. 213 (1999)
  • William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008)

INTELLECTUAL PROPERTY LAW:

  • Arpan Banerjee, Copyright Piracy and the Indian Film Industry: A "Realist" Assessment, 34 Cardozo Arts & Ent. L.J. 609 (2016).
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