What a great introduction, Bill -- thanks! We appreciate being invited to join this interesting conversation on the ELS Blog. Stewart Macaulay and Bob Nelson will be my co-hosts, and together we'll try to do justice to describing the ongoing efforts of the scholars who've been involved in the New Legal Realism Project (NLR).
NLR began with a group of social scientists and law professors who were concerned about the difficulties involved in translating between law and social science. Initial discussions were held at the American Bar Foundation and the University of Wisconsin's Institute for Legal Studies (ILS), both of which have had decades of experience in fostering the social science study of law. The First New Legal Realism Conference, funded and organized by ABF and ILS, was held in Madison in June 2004. Many of the papers from that conference are appearing in a unique publication collaboration between the Wisconsin Law Review, a student-edited law review, and Law and Social Inquiry, one of the leading peer-reviewed journals in the area of empirical research on law. (Working out that collaboration turned out to be a very practical exercise in interdisciplinary translation!) We've since followed up with a series of conferences and events, with more to come.
We started out with the observation that achieving a high standard in interdisciplinary translation requires some attention to the translation process itself. On the one hand, legal professionals may try to pick up on social science findings without understanding the frameworks from which those findings emerge. This can lead to misinterpretation of research results, or to reliance on faulty social science. On the other hand, social scientists may also assume that the translation process is transparent, failing to grasp the very different epistemology and goals of legal language and processes. I often quote Epstein and King's pithy summary: "An attorney who treats a client like a hypothesis would be disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored." While law professors don't have to treat their favorite theories like clients, their training and professional culture can arguably predispose them to do so. And, to the extent that they are debating normative and interpretive principles rather than empirical evidence, law professors have defensible reasons for proceeding differently than social scientists do.
Despite the many divergences among the social sciences, I do believe that social scientists have a distinctive shared commitment: if our theories conflict with what we discover through well-established research, it is the theories and not the findings that need to be discarded or changed. This operates as a check on researcher hubris -- on our very human tendency to see what we want to see in the data we collect. (Dan Kahan provided a great example of this in his guest blog last week.) It is also a check on power, because at its best, empirical research can permit our research subjects to talk back to us -- to shake and jar the assumptions and pre-given frames with which we approach them. (And, because I was trained as an anthropologist, I have to say I think that well-done, rigorous participant observation is one of the best empirical methods for achieving this kind of check on theoretical assumptions. But I know that other methods have their advantages as well!)
On the other hand, social science disciplines themselves differ in terms of methods, goals, and epistemological assumptions. As Monahan and Walker explain in their classic text on social science in law, social scientists must often sacrifice precision in one part of the picture in order to obtain a fuller understanding of another (e.g., internal versus external validity). Obviously, the more that we can combine different kinds of methods, the less we have to sacrifice. Bill Henderson and Howard Gillman made a similar point in earlier posts on this blog. I liked Howard's comment that "empiricism takes a variety of different forms." As he correctly noted, excluding either qualitative or quantitative research from our definition of "empirical" is not only technically erroneous -- more importantly, it would cut off important sources of information.
To summarize, the NLR network of scholars is working to develop more informed and precise methods of translating between social science and law. This requires that we begin by examining the issue of translation itself, as opposed to assuming linguistic transparency among disciplines. If legal professionals are to obtain the fullest possible understanding of law in action, they will need to draw on the broad range of social science disciplines and methods currently available. To achieve this, we will need a theory and practice of translation that is itself empirically grounded. We will also need to synthesize research conducted using different methods (something Bob will be talking about on Wednesday).
A personal PS: Here I want to add a comment that represents just my personal take on this issue of interdisciplinary translation. (Like ELS researchers, NLR scholars come to the table with a variety of disciplinary and other positions -- this is mine.) As a linguistic anthropologist, let me put in a quick plug for my field. The past two decades of empirical research on language and communication in anthropology and sociolinguistics has shed some valuable light on processes of "translation" between different institutionally-based discourses (or, in the terminology of Michael Silverstein at the University of Chicago, "transduction"). One key finding is that our ongoing ability to communicate depends in structured ways on metalinguistic cues (and, specifically, on "metapragmatic" cues that signal us about how our speech connects with context). Thus we are likely to miscommunicate when we translate across disciplines if we do not first examine divergences in metalinguistic assumptions and structures. (This is not unlike Kahan's warning that we need to unpack underlying cultural worldviews in order to bridge communicative divides -- and indeed, language research has connected cultural worldviews with metalinguistic structure. In my own research, I've used transcripts of first-year law teaching to examine some aspects of legal metapragmatic structuring.)
There's lots more to say, and I'm looking forward to the discussion! ABF Director Bob Nelson, whose well-respected sociological research on law has combined multiple methods, will lead off on Wednesday. Tomorrow we'll get to hear from Stewart Macaulay, renowned for his research on relational contract and also co-editor of a classic text on social science of law.