Research Handbook on Modern Legal Realism
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Research Handbook on Modern Legal Realism

Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug

This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law. It explores an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding with and examination of how different social science disciplines intersect with NLR.
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Chapter 22: Planet of the insurers: How insurers shape and influence law and impact access to justice

Shauhin Talesh

Abstract

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.

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