Empiricism, Experimentalism, and Conditional Theory

44 Pages Posted: 27 Jun 2014 Last revised: 11 May 2015

Victoria Nourse

Georgetown University Law Center

Gregory Shaffer

University of California, Irvine School of Law

Date Written: June 24, 2014

Abstract

The New Legal Realism movement has proliferated through the American legal academy but with very diverse strands. In this article, we examine empiricism (reflected in the empirical legal studies movement) and experimentalism (reflected in the new governance movement) as two complementary strands of New Legal Realism. We assess their virtues and potential vices if empiricism and experimentalism are not combined to inform each other. There is a tension between empiricism and experimentalism, as one looks to the past seeking to understand and explain phenomena, and the other looks to the future to reconfigure regulatory schemes. In practice, one tends to take “hard law” as its object, and the other recommends “soft law” because of its revisability. We argue that this tension can be productive for overcoming the challenges of each strand and we offer a theoretical resolution, one which takes the best from each practice in service of an approach that is not model-driven, but problem-centered, that seeks in its claims to science not a claim of final authority but one of discovery and willingness both to work within and challenge received wisdom. We offer two concepts by which to assess the success of a new legal realism: “emergent analytics” and “conditional theory.” These two concepts bring empiricism and experimentalism together. We reject in particular radical skepticism of formal law, to which both movements could be prone, and contend that new legal realism must closely engage with formal law’s conditional role in a dynamically changing world.

Keywords: new legal realism, conditional theory, empirical legal studies, new governance, experimentalism, emergent analytics, modularity, legal theory

Suggested Citation

Nourse, Victoria and Shaffer, Gregory C., Empiricism, Experimentalism, and Conditional Theory (June 24, 2014). Southern Methodist University Law Review, Vol. 67, 2014; Minnesota Legal Studies Research Paper No. 14-32; UC Irvine School of Law Research Paper No. 2014-40. Available at SSRN: https://ssrn.com/abstract=2458572

Victoria Nourse

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

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