The New Legal Realism
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CitationCass Sunstein & Thomas Miles, The New Legal Realism, 75 U. Chi. L. Rev. 831 (2008).
AbstractThe last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for integrity. Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.
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