The pitfalls and promises of a New Legal Realism rooted in political science

Abstract

Political science seems a natural ally for the new legal realism movement. Legal studies and political science have a long tradition of cross-pollination, nearly every political science department has legal scholars and nearly every law school has political scientists. Yet there are potential pitfalls in applying concepts and methods from political science to the study of law and courts. These pitfalls stem from adopting rigid, methods-driven approaches that tend to treat law as formal commands and equate law and courts with other forms of politics and policymaking. The result can be studies that rely on overly narrow conceptions of law, which ignore how law, politics and policy are mutually constitutive, and overlooks how law and courts provide a distinct institutional setting for politics and policy-making. The good news is some scholars effectively leverage political science while avoiding these pitfalls, pointing towards an inter-disciplinary, methodologically pluralistic research agenda that explores the similarities and differences of politics and policy-making in legalistic and non-legalistic (or less legalistic) settings. An irony is that this type of new legal realism might partially revive the law/politics distinction that traditional legal realism once derided.