Academic

Nourse & Shaffer on "New Legal Realism"

By Lawrence Solum

Victoria Nourse (Emory) & Gregory Shaffer (University of Minnesota - Twin Cities - School of Law) have posted Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? (Cornell Law Review, 2009) on SSRN. Here is the abstract:

In 1930, during the Great Depression, Professor Karl Llewellyn declared in the Harvard Law Review that "ferment" was abroad in the land and legal scholarship, declaring "realism" a powerful scholarly force. In the past year, we have seen our own ferment: the world has shown us the folly of some of legal scholarship's most powerful intellectual assumptions about the wisdom and rationality of markets and the inevitable failures of politics. Given current events, this article identifies and critiques an emerging body of legal theory that has dubbed itself "new legal realism." Over 275 papers have already used this moniker. This article surveys and analyzes this scholarship, arguing that "new legal realism" is responding to a shared concept of a "new formalism" - neoclassical law and economics. New legal realists are not anti-economics (some of them are economists themselves), but they are challenging the new formalism's assumptions about the state, the individual, and legal theory. The paper critiques various forms of new legal realist scholarship, from behavioral economics to legal empiricism, and offers suggestions about future directions for a legal theory more capable of addressing our vulnerable national orders in light of the history of the original realism.

And from the paper:

in the past eight or so years, aimed to practice and theorize a new legal realism. They have called it by many names, suggesting different methods and emphases. For Dan Farber, work in behavioral economics should claim the mantle of ?new legal realism.?25 Tom Miles & Cass Sunstein have claimed the title for quantitative empirical studies addressing political influences on judging.26 Stewart Macaulay and Beth Mertz have claimed the title for ?action studies? which require scholars to do ?field work,? engaging law?s subjects on the ground (based on the philosophically pragmatic insight that one cannot posit the ?ends? of law or research without understanding fully its ?means.?)27 Finally, a diverse group of scholars have claimed the title for different forms of institutional analysis. Building on Neil Komesar?s comparative institutional analysis,28 Ed Rubin has argued for a comparative microanalysis of institutions.29 The ?new governance? school that has flourished at Columbia would shift attention away from rights and courts and emphasize stakeholder involvement in the creation of law and regulation.30 Most recently, a set of critical scholars at Emory, led by Martha Fineman, has urged that the state and its institutions should be premised not around the idea of the autonomous, rational actor, but should assume a universal ?vulnerability? to institutional forces.31 Very little of this work, however, has directly engaged its counterparts.

And from later in the paper:

From their different approaches, we draw four core commonalities in the new legal realist scholarly approach, all of which, in a Deweyan vein,137 recursively link method with theory: (i) an emphasis on empiricism; (ii) a focus on institutions of which markets are only one form; (iii) a grounding in philosophical pragmatism; and (iv) critical scrutiny and ambitions.

Very interesting & recommended.

Full post as published by Legal Theory Blog on May 18, 2009 (boomark / email).