Inside the Law School Classroom: Toward a New Legal Realist Pedagogy

In recent years, the legal academy has been experiencing a strong renewed interest in legal research. Referred to by various analysts as a legal or as empirical legal studies, this restored focus the social sciences in many ways echoes an earlier era of legal realism in American law, with some important differences.1 Within the legal academy, empiricism may seem to be a new discovery; however, there has been continuous intellectual concern with social science research legal topics for many decades now, most notably embodied in the Law and Society movement.2 At the same time, there has been growing interest in introducing possible reforms to the U.S. system of legal education, an interest to which this Symposium issue gives eloquent expression. This Article combines these two themes: research law and careful examination of legal education. It reports an study of legal education, which I have been conducting under the auspices of the American Bar Foundation (a research institute that also has been actively developing an interdisciplinary program of research law for many decades).3 After discussing that study, I will consider its implications for the teaching of law. This Article raises the core issue of how law works when it translates information about the wider society into legal language, from social science findings to the nitty-gritty details of plaintiffs' and defendants' lives. For example, when attorneys ask expert witnesses questions about social science findings the stand, they are using a legal framework that is often at odds with some of the basic assumptions of the social science discipline in question. Plaintiffs and defendants may understand the conflict addressed in court much differently than do the legal professionals who are translating their stories into legally-viable frames. I argue for a more rigorous approach to conceptualizing and teaching this process of legal translation. Legal professionals may have to change or distort the results of social science research to serve their clients' cases, or to fit within the applicable doctrinal categories, but they can at least begin with a better understanding of the issues involved. We generally do not train law students in the standards of assessment used by social science to evaluate assertions about people and society. Both legal professionals and social scientists sometimes proceed as if their fields operated from the same basic standards and epistemological assumptions. We do not give much systematic thought to the ways the fields of law and social science differ, or to what is involved when we move between them. I contend that this kind of rigorous thought should be central to any new legal realist or project in the legal academy. I. INSIDE THE LAW SCHOOL As legal scholars return to a focus the study of law, they inevitably confront the question of method: what are the best social science methods for studying law on the ground? Although some would argue for a limited set of preferred methods, a consensus seems to be emerging that a neutral approach to selecting methods is important so that the chosen methods will fit the questions asked.4 For example, quantitative and qualitative methods give us different kinds of information, as do experimental and econometric approaches. Large-scale survey and statistical studies provide a better sense of how general a pattern is, but do a poor job of sensitively tracking subjects' own understandings of events.5 Participant observation has the advantage of generating more accurate information about subjects' cultural and social frameworks and also often gives us a better picture of what is actually happening than do self-reports; people may behave in observably different ways than indicated by their self-reports surveys.6 However, as studies grow more detailed and accurate about law the ground, the focus is narrowed and it is more difficult to assess how they can be generalized. …