One obvious question about New Legal Realism is how it might differ from the old. Can we claim anything more than we have a website, while Karl Llewellyn didn't? (See http://www.newlegalrealism.org). As Bill noted in his Introduction to this blog forum, much of the old legal realism was aimed at freeing appellate judges from the confines of formal approaches so that they could carry out good policies or their "situation sense" as they decided cases. A new legal realism is not as focused on appellate judging as the old. Instead, new legal realism takes full advantage of about forty years of law and society research that suggests what the law in action looks like.
I've commented elsewhere that we would be making progress if mainstream legal scholarship would simply take account of this research. Although participants in this blog are familiar with such points as law is not free and law is delivered by actors with limited resources and interests of their own, too much writing in law reviews still proceeds with little concern with these well-documented realities. In a talk I gave at the contracts panel at the last AALS meeting, I played with an analogy to the fate of the nuclear submarine USS San Francisco. In January of 2005, it was cruising at top speed at a depth of more than 500 feet. It crashed into an undersea mountain, killing one sailor and injuring 97 others. The crash caused more than $88 million damage to the boat. The mountain was not on the boat's navigational charts, although potential hazards in the area were noted on other charts that the San Francisco's officers had never seen. Legal scholarship that proceeds without awareness of the existing empirical charts of the law in action risks a similar fate. I did conceded that contracts scholarship is unlikely to kill or injure anyone. Nonethelesss, it could be rendered ineffective, or even have unintended consequences, if it is not based on an accurate picture of the law in action. And a major part of that picture involves negotiation and discretion rather than a neat rule-bound system.
How do we get a more accurate picture of the law in action? We must turn to the methods of all the social sciences. Law is too complex to grasp fully if we favor one approach over all the others. My late wife Jackie Macaulay had a Ph.D. in social psychology from a department that prided itself as the "Dust Bowl of Empiricism." (She later became a lawyer). She suggested that the best working rule was to presume that all social science approaches are flawed, but the game is to understand the limits of each and use the best approach available for what you want to study. Sometimes we can get neat tables of numbers and use state of the art statistics. She did some of this kind of work herself, but she always suggested that I ask where the numbers in the tables came from. Human behavior doesn't turn itself into numbers by some magical or natural process. Someone has to code it, and the quality of the coding varies. Many small, unfounded assumptions can be hidden within apparently neutral quantitative results.
Our Wisconsin colleague Bert Kritzer compared what he learned from asking questions with what he learned from watching lawyers in contingent fee practice. He says, "the observational studies present more nuanced images, which tend to contradict the more straightforward results of the interview-based analyses." He quotes Bob Dingwall: "interviews construct data, observers find it; in an interview study, we can pick and choose the messages we hear and that we elicit, [while] in observation we have no choice but to listen to what the world is telling us." Of course, often it isn't easy to get permission to watch, and even when it can be done, it is a much more time-consuming approach. And, as with all other methods, there is a discipline to observation which, if ignored, can lead to unreliable results.
Sometimes we are limited by the available sources of information. We may not be able to interview a randomly selected sample. There may be a limited number of people who know what is going on and who are willing to talk to a researcher. Moreover, often such people are unwilling to talk if you do not promise confidentiality. There are, of course, a number of problems when we go down this road. For example, our informant may tell lies or spin his answers to make himself look good. She may seek to entertain us by telling us about the atypical or interesting events rather than the dull everyday practice. It is hard to know how representative our informant's knowledge is. If we were able to talk to more people with different experiences, would the story differ significantly? And other scholars cannot replicate our work because we cannot tell them who we talked to. I've seen some suggest that we should not interview business people or lawyers about contracts practices because we cannot get a good sample and our work cannot be replicated. I'm sure that my reaction is influenced by the alternative -- often if we don't rely on those informants we can get, we can do nothing. I'd prefer to recognize the limitations of such approaches and flag them in my articles. For example, in my article on Lawyers and Consumer Laws, I described the research that involved interviewing about 100 lawyers in five Wisconsin counties as well as its limitations. I concluded: "It [the article] should be read as a report from a preliminary study, offering suggestions that the author thinks are true enough to warrant reliance until someone is willing to invest enough to produce better data and lucky enough to find a way to get them." You can take some steps to minimize the risks, and we should where we can. At the minimum, we can challenge the story that we get and ask whether it is plausible. Then we can wait for other studies and see if they find much the same thing. One lesson of new legal realism, gleaned from good social science practice, is that we need a healthy dose of humility in drawing conclusions from our research. And this is true whatever flavor of social science we prefer.
Dean Elena Kagan represented the new Fellows of Class III, Section 4 of the American Academy of Arts & Sciences. She said: "The practice of law and the study of law are growing farther apart, to their mutual misfortune. Fewer law professors understand what it means to be a practicing lawyer or what issues lawyers are confronting. And fewer judges and lawyers look to scholars for insight or guidance. Less and less does practice inform scholarship, nor does scholarship improve practice." A new legal realism would encourage academics to study what lawyers do, and with what consequences to whom. This should be worth our attention. My guess is that what lawyers do, and don't do, matters. One way that we can translate more effectively between empirical research and legal practice is to gain a better understanding of the realities of law on the ground, and quite often (althought not always) it is lawyers who put the law into action. Of course, a thorough study of law on the ground means that we not only include law on the books and law in the attorney's office, but we need to add law in everyday life. This research into the living law has been ongoing for many years, and law professors and students should be far more aware of it.
What might we gain by the new legal realism project? Law professors advocate legal rules that they hope will gain some measure of, in Llewellyn's phrase, the good, the true and the beautiful. We write amicus briefs and law review articles and we draft statutes and regulations seeking reform. Recognizing all of the problems with offsetting power, we should do better if our proposals reflect the way law affects people from the ground up. If we care about justice, we need to understand much more than the text of legal rules. Here is where the new legal realism continues the spirit of the old.