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.
Hi Geoff --
Sign me up as an idealist also, because I share your hope for diversity of approaches.
On the branch of anthropological linguistics within which I work: (and anyone who hates hearing technical terms from fields with which they aren't familiar should just stop reading here)--
One of our big problems, I think, is that we work within a highly technical vocabulary, and there haven't been a great number of attempts at translation. I hope that this is starting to change. For example, a core article for me is Michael Silverstein's "Metapragmatic discourse and metapragmatic function," found in a volume edited by John Lucy (Reflexive Language, Cambridge U. Press, 1993). I think the article is pretty impenetrable for anyone outside the field, however. (This is very unfortunate -- but to be fair, I wouldn't expect to pick up a highly technical article from economics and understand it without a lot of help --) Probably the most accessible Silverstein article is: "Shifters, linguistic categories, and cultural description," in a volume edited by Basso and Selby (Meaning in Anthropology, U. New Mexico Press, 1976).
A better place to start might be some of the work on language and law -- for example, Susan Hirsch's book "Pronouncing and Persevering" (U. Chicago Press, 1998), or Susan Philips' "Ideology in the Language of Judges" (Oxford U. Press, 1998); both books are more accessible than most in the field, and deal with really interesting issues. Greg Matoesian uses linguistic analysis to show how defense attorneys operate in rape trials (which points to why existing rape shield laws might not be able to fully achieve their stated goals) ("Law and the Language of Identity," Oxford U. Press, 2001). I believe some of the research on linguistic ideology will be summarized in Conley and O'Barr's forthcoming new edition of "Just Words" from U. Chicago Press.
Probably less accessible, but handy repositories of developments in this tradition are: "Reflexive Language" (listed above), "Semiotic Mediation" (ed. Mertz & Parmentier, Academic, 1985), "Natural Histories of Discourse" (ed. Silverstein & Urban, 1996), "Language Ideologies" (ed. Schieffelin, Woolard & Kroskrity, Oxford, 1998), "A Companion to Linguistic Anthropology" (ed. Duranti, Blackwell 2004). Alessandro Duranti also wrote an introduction to the field, "Linguistic Anthropology" (Cambridge U. Press, 1997) -- and there's a wealth of material in journals like the Journal of Linguistic Anthropology, Pragmatics, Text, Language in Society, and others. Richard Bauman and Charles Briggs have done some interesting stuff on the issue of analyzing texts... (I've written a few very brief summaries in some law review articles -- e.g., "Tapping the Promise of Relational Contract Theory," 94 Northwestern U. L. Rev. 909 (2000).)
And I could go on, but I won't! (As you can tell, I'm an enthusiast about the work in my field, and am hoping that more of it will be available in more accessible forms soon --) Thanks for your openness to new ideas -- feel free to e-mail me with questions if you do delve into this material.
Posted by: Elizabeth Mertz | 24 June 2006 at 05:25 PM
Elizabeth, you're spot on about the need for reflection and taking the opportunity to work at understanding other disciplines. Maybe I'm still starry-eyed, but diversity of approaches and opinions is the hallmark of the academy. So, if I can ask, what are the key sources that might clarify the perspective and tradition in which you personally (as the resident lingust) work? A number of studies have already been mentioned, and I look forward to learning from as many of them as I can.
Posted by: Geoff McGovern | 22 June 2006 at 05:13 PM
Geoff, thanks for pointing us to this discussion and Friedman’s article. It does indeed parallel some of what NLR scholars are trying to do. If I can add one more item to Stewart’s list of NLR goals above, it would be that NLR is trying to encourage a more self-conscious process of translation in both directions. (No surprises here, coming from the resident linguist!) So, one answer to the concern about rifts of various kinds is to say that NLR stands for encouraging more self-conscious communication in order to avoid unproductive divisions. A corollary is that it will take real effort at bridging different approaches if we are to produce good interdisciplinary work. I think that rifts are more likely to happen when we assume that we can just pick up on other disciplines without working at understanding them. We need to encourage a different norm: one that defines high quality interdisciplinary research as grounded in respect for disciplinary differences. (I think Bob explained this very well in his post on Wednesday.)
In this sense, I agree with Stewart’s idea that NLR is best viewed not as a club that includes or excludes, but as a platform that encourages conscious reflection and discussion. Bob’s triad of important reminders serve as useful guideposts: multiplicity of methods, self-critical humility, and connecting empirical research to theoretical propositions. This last point is probably one of the most difficult, as law and social science have very different ideas about how to connect empirical results with broader conclusions (as do the various social science disciplines and subdisciplines). If we don’t recognize this as a problem, we leave scholars free to simply proceed along the lines dictated by their disciplines – happily absconding with the “stuff” of other fields without any in-depth engagement. If we require some reflection on the problem, we have taken at least a small step toward real interdisciplinary scholarship.
Posted by: Elizabeth Mertz | 22 June 2006 at 01:07 PM
Thanks for the link!
Posted by: Geoff McGovern | 20 June 2006 at 05:51 PM
Barry Friedman's article, "Taking Law Seriously, is available on SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896921
Posted by: William Ford | 20 June 2006 at 05:44 PM
The Law and Courts List serve has initiated a discussion that I believe pertains to the current topic on this blog (thanks to Steven Wasby). The exchange concerns a very recent publication by NYU law professor Barry Friedman, whose article "Taking Law Seriously" appears in the June 2006 edition of Perspective on Politics. His main point is that positive law and courts/law and society scholars need to be more aware of legal scholarship--normative scholarship in particular. Citing Popper in the opening paragraph, Friedman reminds us that we are "not students of some subject matter, but students of problems" (261).
Friedman's appeal to true interdisciplinary collaboration faults Legal Realism (and Herman Pritchett in particular) for the rift between political scientists and legal academics. He writes, "Legal scholars, troubled by what Realism spelled for law's legitimacy, took a normative turn, devoting their efforts almost exclusively to telling judges how they should decide cases" (263).
As a JD and a student of empirical political science, my experience mirrors Friedman's commentary. Legal education showed only nascent interest in empirically analyzing (through both quantitative and qualitative methods) the implications of the normative perspectives. Stewart's comment that law reviews are loath to "develop a more accurate picture of the law in action and the living law" is also dead on. Meanwhile, some (though certainly not all) political scientists have been reluctant to give law the credit it is due, glossing over the institutional constraints imposed through normative standards of professional conduct and various institutional arrangements.
The marvelous and obvious realization is that social science and legal scholarship need not progress along divergent and separate paths.
So I’d echo Friedman’s clarion for closer union between legal scholars and social scientists. Yet I wonder: how will the New Legal Realism prevent the replication of the former split?
Unfortunately, I cannot locate the article online (given its most recent publication), but if you can get your hands (physical or digital) on a copy, it's well worth the read (likewise, Professor Friedman’s December 2005 article in the Texas Law Review--84 Tex. L. Rev. 257--predates and foreshadows many of his arguments, though he directs his constructive criticism to legal academics).
Posted by: Geoff McGovern | 20 June 2006 at 05:35 PM
Many of those who participate in the Law and Society Association are new legal realists in substance, whether or not they want to join the club and be "New Legal Realists." NLR is a platform from which we advocate at least two things: One is a pluralism of methods in the face of a too common assumption that there is one true way that is social science. The second is that "mainstream law review writing" should develop a more accurate picture of the law in action and the living law insofar as it wants to talk about the consequences of proposed legal reforms. I do not see much risk of creating a sect that preaches one true religion. Indeed, I can think of a number of people generally associated with law and economics who are new legal realists, whether or not they want to make common cause with a New Legal Realism. Nonetheless, NLR gives us a platform to think about methods and how legal scholarship might be improved. The theme of the last AALS meeting, for example, was "law in action." Many of us associated with NLR saw it as important to participate and advocate a revised model of the way law works.
We could have used many names as a way to organize a group of scholars. In my article in the Wisconsin Law Review, I tried to show relationships between today's efforts, legal realism and even Wisconsin Progressivism.
Posted by: Stewart Macaulay | 20 June 2006 at 12:48 PM
Sam Bagenstos has an excellent point, and I've been wrestling with similar questions. Interdisciplinary work certainly is nothing new--social scientists have approached law from their respective disciplines, and legal academics have been doing "Law-and-fillintheblank" work for many years now. Both the social scientists and legal academics have carried on the mantle of non-formalistic scholarship that the Legal Realists initiated. So I wonder, are both de facto members of the "New Legal Realist" movement? Are both the heirs of the old Legal Realism? Are both ELS practioners, even? Are these labels something to which one must subscribe (like CLS), or are they more general classifications of scholarship?
I fear divisiveness in the labelling, particularly when the labels correspond to as yet unclear (in my mind) distinctions and goals. Is there a driving purpose behind the New Legal Realism, and if so, what is it? How would it play out in practice, in legal education, in social science and legal scholarship?
This is not a criticism; I guess I'm just looking for further clarification. I look forward to reading the posts and comments in the week ahead.
Posted by: Geoff McGovern | 20 June 2006 at 10:34 AM
As a pretty avid consumer of social science work, I agree with the various prescriptions in both this post and the Mertz one. But what is helped by calling this (capitalized) "New Legal Realism"? "We're all legal realists now," no? I don't quite see why the group of scholars that self-consciously labels itself "New Legal Realists" is any more the heir of the (old) Legal Realists than anyone else doing law-and-social-science work. If the idea is to say that law and economics (or law and the economistic versions of political science, etc.) is not the only valid version of law and social science, and that we need methodological pluralism, to apply lots of different discplinary perspectives to particular questions, etc., I'm all for it. But creating a self-conscious "New Legal Realist" community could easily turn in a different direction -- one that itself becomes too enamored of its way of doing law and social science and starts talking only amongst itself (except to make claims of its superiority as a method), much as law and economics does now. So my question is a little different from the one that starts this post. I'm not so interested in what makes this New Legal Realism different from (old) Legal Realism -- it would be shocking if so many decades didn't produce lots of changes. My question is what makes "New Legal Realism" different from the interdisciplinary work of other folks in who do law and social science generally, and who associate themselves with the Law and Society movement in particular.
Posted by: Sam Bagenstos | 20 June 2006 at 10:00 AM