Blog Forum - The New Legal Realism: It’s Not About Breakfast

A while back, Legal Realism became associated with an eccentric view of judicial behavior, i.e., that it is better explained by judges’ breakfast selections than anything remotely identifiable as law. As Judge Kozinski described it, “If the judge has a good breakfast and a good night’s sleep, he might feel lenient and jolly, and sympathize with the downtrodden. If he had indigestion or a bad night’s sleep, he might be a grouch and take it out on the litigants.” Alex Kozinski, What I Ate for Breakfast and Other Mysteries of Judicial Decision Making, 26 Loy. L. A. L. Rev. 993, 993 (1992-1993); see also Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 391 n.16 (1992) (referring to “the old realist thesis that the law is only what the judge had for breakfast”); Ronald Dworkin, Law’s Empire 36 (Harvard 1986) (“Some realists ... said there is no such thing as law, or that law is only a matter of what the judge had for breakfast.”). As many have pointed out before, this is not an accurate characterization of Legal Realism. See, e.g., Frederick Schauer, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1923 (2004).

But now there’s a New Legal Realism, and we want to help start things off right, lest it too become wrongly associated with one of the big three meals of the day. According to the New Legal Realism website, the basic idea “is to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law.” This is right up our alley here at the ELS Blog. We are therefore pleased to have with us this week Professors Elizabeth Mertz (American Bar Foundation & Wisconsin), Stewart Macaulay (Wisconsin), and Robert Nelson (American Bar Foundation & Northwestern). They will explain New Legal Realism, what it is, what makes it new, and why it’s not about pancakes verses waffles.