Jeffrey Omari (Gonzaga University - School of Law), Pablo Rueda-Saiz (University of Miami School of Law), & Richard Ashby Wilson (University of Connecticut School of Law; Department of Anthropology, University of Connecticut) have posted New Legal Realism at 20: Rethinking Law in an Era of Populism and Social Movements (Connecticut Law Review, Vol. 57, No. 1, 2024) on SSRN. Here is the abstract:
This article critically examines the New Legal Realism (NLR) movement on its 20th anniversary, shedding light on its distinctive intellectual contributions. By evaluating NLR’s unique imprint both methodologically and substantively, this study explores the movement's relationship to other empirical approaches to the study of law. In contrast to theoretical perspectives that narrow the law to a mere instrument of social control, NLR advocates recognize that law is a more complex, nuanced social phenomenon, which often has unintended consequences. To create grounded theories that account for the multifaceted character of the law, NLR employs a diverse range of methods, reaffirming the importance of “looking up, down, and sideways.” Notably, it embraces both top-down and bottom-up methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. Moreover, NLR stands out for its commitment to a comparative, cross-national exploration of legal phenomena, fostering a refined understanding that embraces complexity while allowing for more grounded generalizations about the relation between law and society.
The study focuses on two cases, one in Colombia and the other in Brazil, to elucidate the power dynamics of law's interaction with elites and grassroots social movements. In the Colombian context, the examination reveals how corporate law and neoliberal reforms can be appropriated by grassroots social movements that repurpose them to advance progressive causes. Conversely, the Brazilian case illustrates a contrasting scenario where a progressive government policy becomes susceptible to exploitation by populist and illiberal leaders, leading to unintended outcomes that are contrary to its original inclusive intent. Both cases serve as poignant examples of the importance of NLR’s insistence on observing top-down policies as well as bottom-up social processes to understand the ways in which law and policy acquire a life of their own as diverse actors deploy them in varied ways. They illustrate the essential nature of the law itself and how the law in any given moment represents the crystallization of the social forces that produced it through competition over the direction of legal and social change.
