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Man holding a lightbulb in Toluca

New Legal Realism and Empirical Legal Studies in the United States

Man holding a lightbulb in Toluca

My charge is to provide a brief perspective on the US scholarly debate beginning around 2005 between New Legal Realism and the legal empiricists identified with the Society for Empirical Legal Studies (SELS). The scholarly debate is not seen much now in scholarly exchange, but there is still a strong division of labour. Moreover, the debate itself helped redefine and elevate the place of social science and PhDs in legal education, legal scholarship, and in the hierarchy of legal scholars.

I have participated intermittently in this academic discussion, beginning with one of the early multi-author manifestos of New Legal Realism, in 2005 and more recently in taking stock after ten years with Elizabeth Mertz, one of the major actors in the field. Empirical Legal Studies began at precisely the same time as New Legal Realism, as did Law, Culture and Humanities (not discussed in any detail here). All were founded by leading members of the Law and Society Association. New Legal Realism, in contrast to Empirical Legal Studies and Law, Culture and Humanities, does not purport to be an organisation with its own journal and annual conferences, but it is well-represented by CRN 28 (Collaborative Research Networks) of the Law and Society Association. It is led currently by Emily Taylor Poppe  and Riaz Tejani and has a blog that showcases prominent academics who define their scholarship in part through New Legal Realism (including 2020 MacArthur genius award winner Thomas Mitchell). New Legal Realism is well-represented also by a series of edited volumes, most recently on Modern Legal Realism edited by Talesh, Mertz, and Klug. The SELS leadership includes well-known scholars such as James Greiner of Harvard, Paige M. Skiba of Vanderbilt, and William Hubbard of Chicago.

New Legal Realism defines itself as a – perhaps the  successor to the Legal Realists of the 1930s, who were primarily professors in law schools, drew on social science research, attacked legal formalists and formalism (doctrinal analysis without examination of the context and likely results of legal and especially judicial decisions), and were closely linked to the Roosevelt New Deal agenda. The base of New Legal Realism is similarly legal academics and law schools (versus social scientists outside of law schools with interests in law). New Legal Realism seeks to show the way to combining social science theory, social scientific methods, and legal analysis, and more generally to find effective ways to translate social science to serve legal audiences. Part of the emphasis is on both the quality of the social science and of the legal analysis, insisting that law professors resist the temptation to draw selectively on social science to support a particular political or scholarly position. One other tenet of New Legal Realism is to recognise that quality is not only represented by quantitative and experimental empirical work, but also includes high level qualitative (and mixed) methods. And while not emphasised often, the research program includes more reflexive scholarship examining the evolution of research trends and hierarchies in Socio-Legal fields.

The Society for Empirical Legal Studies also evolved from the Law and Society Association. With prodding from the Cornell dean, Cornell Law Professor Theodore Eisenberg established the Journal of Empirical Legal Studies (JELS) as a way to encourage law professors who conducted quantitative empirical research on legal issues and institutions. Annual conferences then led to the organisation of the Society for Empirical Legal Studies. While one aim was to provide an outlet for and boost the prestige of law professors (often without formal social science training) doing quantitative work on the legal system, the Society has also upgraded the quality of the quantitative research. The leaders of the Society for Empirical Legal Studies now also formally embrace qualitative research, but in the early period of the field, “empirical” was often defined implicitly or explicitly as quantitative research. In fact, a scan of recent issues of the JELS reveals only quantitative studies. Empirical Legal Studies are also less concerned with contributing to “legal theory” or advocacy than New Legal Realism (typified by more normative perspectives) than with making empirically-based observations of how legal institutions operate in practice. The JELS thus defines its agenda as “where scholarship and practice meet.”

There is not space to go beyond this simplified depiction of New Legal Realism and Empirical Legal Studies, but one could also relate the organisations and approaches to a longstanding Law and Society Association division between a more politically progressive group (like the Realists new and old) with theoretical ambitions tied to social science, and those with more of a focus on generating data useful to lawyers. Most importantly, both relate to the dramatic increase in interdisciplinary research and PhDs in law school faculties, which challenges scholarship that may appear as dilettantism in research drawing on social science. The leaders of New Legal Realism tend to have law degrees and social science degrees and to emphasise their fluency in both legal theory and social science theory. SELS leaders also tend to have both law degrees and PhDs, but the disciplines are much more likely to be in economics or statistics than sociology or anthropology, and they do not purport to contribute directly to legal theory. There are scholars who publish both in JELS and in the Law and Society Review, including New Legal Realists. Finally, each has internationalised in varying degrees, as has the Law and Society Association – which to a great extent still overlaps with both. There are remaining differences, to be sure, but it may now be more a matter of a division of labour in a growing interdisciplinary field than a heated academic contest.

 

About the Author

Bryant Garth

Professor Bryant Garth

Interim Dean and Distinguished Professor of Law Emeritus, University of California, Irvine School of Law (UCI Law)

Bryant Garth is Interim Dean and Distinguished Professor of Law Emeritus at the Irvine School of Law at the University of California and Co-Director of the UCI Law Center for Empirical Research on the Legal Profession (CERLP). CERLP plays an active role in connecting UCI with a community of lawyers and scholars dedicated to advancing research and public engagement on legal profession issues. His scholarship focuses on the legal profession, the sociology of law, and globalisation.

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