Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?

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 280 articles 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 article identifies four central attributes for a new legal realism - empirical study, institutional analysis, philosophical pragmatism and critical reflexivity. It 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 order, including the possibility of new “emergent” legal analytics, replacing or complementing functionalism with participation-centered concepts, recognizing human vulnerability rather than assuming autonomy, moving beyond the old law/politics divide, theorizing doctrine as semi-autonomous and mediated by institutions, and recognizing that the pursuit of all goals and values is transformed by institutions with their own reflexive processes - in sum, building mediating theory that emerges recursively from empirical study and practice.

Keywords: legal realism, legal theory, behavioral law and economics, institutionalism, contextualism

Accepted Paper Series