The Realist Use of Empirical Legal Studies: A Case Study of Reasonableness

Abstract

Today the conjunction of “legal realism” and “empirical legal studies” calls to mind demonstrations of biased decision-making: Judicial decisions are driven by a judge’s personality, politics, or even breakfast! In American legal theory, empirical legal studies have long been associated with legal realism, and our understanding of the former has thus been refracted through the “received view” of the latter. On this received view, conceptualism and doctrinalism are the foils of realism and empirical legal studies. Realism’s empiricist successors have largely remained skeptical of legal form and concepts and emphasized demonstrations of decisional bias or measurement of law’s effects.

We sketch a different picture of legal realism and its relationship to empirical methods. The crux of our proposal is that legal realism does not radically reject all legal conceptualism, and that it is amenable to using empirical studies to clarify legal concepts. Understanding legal realism in this way also illuminates an important and underutilized form of empirical legal studies.

As an extended example, we consider the concept of reasonableness. At first, this concept might seem to be a ready subject for proponents of the received view of realism: “Reasonableness” in law is often held up as a flexible gap-filler that provides decision-makers discretion to achieve desirable consequences, and empirical research of human assessments of reasonableness and negligence can demonstrate such bias and motivated reasoning. In contrast, recent empirical research examines reasonableness in a more conceptual light, seeking to illuminate features of the ordinary concept that clarify how legal actors do (and perhaps should) assess reasonableness, rather than features that are to be eradicated as biases. The paper introduces this work and what it shows for realism, conceptualism, and empirical legal studies.