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History of New Legal Realism and the ABF

March 27, 2017 New Legal Realism

In 1997, a group of scholars had begun to meet to discuss plans for a New Legal Realism (NLR) project.  The initial planning meetings were held in Madison at the University of Wisconsin Law School and in Chicago at the American Bar Foundation.  Law and social science researchers from these two institutions were joined by scholars such as David Wilkins of the Harvard Law School and Martha Albertson Fineman from Emory University School of Law.

As a result of their initial discussions, the NLR planning group sponsored a panel entitled “Is It Time for a New Legal Realism?” at the 1997 Law & Society Association meetings in St. Louis, Missouri. The panel drew a large audience of sociolegal scholars, who debated the issues involved in achieving high-quality translations of qualitative and quantitative empirical research in legal settings.One particular topic of discussion was the sometimes difficult relationship between scholarly traditions in the social sciences and in the legal academy. 

A strong focus on developing systematic, rigorous translations between law and social science has characterized the NLR project since its inception. This focus was evident in a series of exchanges that appeared during the late 1990s in Law & Social Inquiry, a leading sociolegal journal sponsored by the American Bar Foundation.  Under the heading of “From the Trenches and Towers,” these exchanges brought practitioners and scholars together to discuss topics of mutual concern:

LSI 23:2   1998   Legal Ethics in the Next Generation: The Push for a New Legal Realism
LSI 23:3   1998   Social Science Study of the American Law Institute
 LSI 24:4   1999   Evidentiary Privilege for Social Scientists  
LSI 25:2   2000   Affirmative Action in Law School Admissions: The University of Michigan Study
LSI 27:3   2002   Current Illusions and Delusions about Conflict Management
LSI 29:3   2004   MDPs after Enron/Andersen

In June 2004, a group of legal and social science scholars gathered in Madison, Wisconsin, to generate models and ideas for a new legal realist research agenda. The conference was supported by a major grant from the American Bar Foundation, along with additional support from the Institute for Legal Studies at the University of Wisconsin Law School, also a long-term center for social science research on law. ABF participants in the conference included Bryant GarthElizabeth MertzLaura Beth Nielsen, and Robert Nelson. The conference had several panels drawn from the Discrimination Research Group, also an ABF-supported project. The conference brought together scholars from law, anthropology, sociology, history, psychology, and economics.

The (PDF)conference program stated:  “We seek to develop a tripartite approach that includes sophisticated consideration of legal issues, empirical research, and policy – much as did the old legal realists, but with the benefit of several generations of new thinking in all of these areas.”

The opening panels of the conference focused on history and theory, with the goal of laying the groundwork for conceptualizing a new paradigm.  These panels looked back to past efforts at bridging between social science and law in order to learn from mistakes and successes.  They then turned to look forward toward new opportunities to bring law and social science together.  On the second day, panelists presented empirical research that could serve as a model for NLR efforts.  Finally, the third day panels considered how to integrate social science research into law teaching, and how to create future interdisciplinary opportunities.

Participants included Laura Beny (University of Michigan), Elizabeth Heger Boyle (University of Minnesota), John Conley (University of North Carolina), Howard Erlanger (University of Wisconsin), Martha Albertson Fineman (Emory University), Marc Galanter (University of Wisconsin), Bryant Garth (ABF), Mitu Gulati (Duke University), Joel Handler (UCLA), Cheryl Kaiser (University of Washington), Alexandra Kalev (University of Arizona), Jane Larson (University of Wisconsin), Orly Lobel (UCSD), Guadalupe Luna (Northern Illinois University), Stewart Macaulay (University of Wisconsin), Brenda Major (UCSB), Arthur McEvoy (University of Wisconsin), Sally Merry (NYU), Elizabeth Mertz (ABF & Wisconsin), Thomas Mitchell (University of Wisconsin), Robert Nelson (ABF and Northwestern), Laura Beth Nielsen (ABF and Northwestern), Victoria Nourse (University of Wisconsin), Devah Pager (Princeton), Bruce Price (University of Denver), David Trubek (University of Wisconsin),  Louise Trubek (University of Wisconsin), Lucie White (Harvard University), and David Wilkins (Harvard University).

These early NLR research pursuits resulted in the first known collaborative publication effort between a law review and a peer-reviewed journal. Law & Social Inquiry published results of the conference focused on employment discrimination and transnational law (Vol. 31, No. 4, 2006).  The Wisconsin Law Review published presentations from the conference that provided an overview of the evolving methods and questions of New Legal Realism, along with exemplary research on law, poverty, and land – as well as on law and discrimination (Vol. 2005, No. 2).

Additionally, in June 2006, ABF Director Robert Nelson joined University of Wisconsin’s Stewart Macaulay and ABF researcher Elizabeth Mertz (also a Wisconsin professor) for a week-long blog forum on the topic of New Legal Realism. The blog forum drew a large audience and sparked lively discussions.  

NLR Project discussions have been featured twice at the American Association of Law Schools annual conference. One series of NLR conferences explored empirical legal perspectives on women, work, and family.  Other conferences have examined law and poverty, and have established new frameworks for law to “work from the world up.” Legal scholars from across the spectrum of U.S. law schools are joining top-notch empirical researchers in ongoing NLR discussions designed to provide the world of law with the best available social science knowledge. 

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