Applying a New Legal Realist framework, this chapter uses the insurance field as a pathway for exploring how insurance institutions shape law in formal and informal settings. Consistent with new institutional organizational sociology studies that highlight how organizations influence the meaning of compliance, I show how the insurance field, largely through a lens anchored around risk, filters and mediates what law means through a risk-based logic. I begin by explaining how insurance exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Next, I show how the presence of liability insurance often shapes how civil lawsuits are structured. I then pivot to the criminal justice system where risk assessment and actuarial techniques increasingly are used to categorize criminals with varying degrees of dangerousness. I then show how risk management now permeates and influences how many judges operate in various problem-solving courts. Finally, I reveal the processes and mechanisms through which insurer risk management techniques influence how organizations understand law and compliance. I conclude this chapter by noting that the insurance field’s shaping of law in formal and informal settings can have both positive and negative impacts for achieving access to justice.
Increased involvement, delegation, and deference to non-state actors is probably the most important change to the regulatory state in the past three decades. This chapter explains the rise of governance in the context of public law as a shift from rulemaking by governmental institutions to rulemaking coming from private organizations and other civil actors. I highlight this evolution along three dimensions: prelude to governance, from government to governance, and beyond governance. I conclude by arguing that, while law remains necessarily a public function, the private role in the construction and meaning of regulation, compliance and law itself is more salient and celebrated than ever before.
Lauren B. Edelman and Shauhin A. Talesh
Shauhin Talesh, Elizabeth Mertz and Heinz Klug
This introductory chapter shows the distinctive qualities of New Legal Realism (NLR), captures where it stands around its fifteenth anniversary, and explains the goal of the larger book. In doing so, we demonstrate NLR’s fruitful continuation of the legal realist adventure as it reaches beyond historical and national boundaries to form new international conversations, based heavily on law-and-society networks and traditions. In addition, we provide a contrast to Empirical Legal Studies, because the NLR project clearly visible in this volume does not just use quantitative methods to study lawyers and legal institutions as they have been traditionally viewed. Instead, it includes chapters by social scientists and law professors using social science theory and multiple methods to understand law and address legal problems - across an impressive variety of subject areas such as immigration, policing, globalization, legal education, and access to justice. Finally, it offers a series of chapters from scholars - across an array of law and social science disciplines - explaining what particular disciplinary approaches offer to the process of translating law and empirical research. Overall, this volume highlights the powerful virtues of new legal realist research and an appreciation and awareness of the challenges of translation between social science and law.