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 31: Law as a discipline: Legal theory, interdisciplinary legal theory, and ways of speaking legitimacy to power

Bryant G. Garth

Abstract

The essay examines the debate about whether law is a discipline, framed typically in the United States as social science on one side, and legal formalism on the other. It argues that the dichotomy is misleading, because the reigning version of legal theory in the United States, even in the most interdisciplinary law schools, insists on an evolving combination of legal normativity and social science. The legal formalism does not go away and is part of what keeps social science in law schools from being dismissed as “merely descriptive” and “untheoretical.” The essay notes that if we look to other countries, legal formalism is also the key to legal theory – or legal science as termed on the Continent. There are very different models, but they all can be traced to the origins of the legal profession and legal education in the medieval era. The US version of legal theory is currently ascendant in global competition because of the power and prestige of the US, which we naturally celebrate from a US perspective, but it also brings a relatively conservative model of law and social change and a relatively weak model of the state.

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