Empiricism, Experimentalism and Conditional Theory
Victoria Nourse and Gregory Shaffer, Empiricism, Experimentalism and Conditional Theory, 67 SMU L. Rev. 141 (2014).
The New Legal Realism movement has proliferated through the American legal academy but with very diverse strands. In this article, we examine empiricism (reflected in the empirical legal studies movement) and experimentalism (reflected in the new governance movement) as two complementary strands of New Legal Realism. We assess their virtues and potential vices if empiricism and experimentalism are not combined to inform each other. There is a tension between empiricism and experimentalism, as one looks to the past seeking to understand and explain phenomena, and the other looks to the future to reconfigure regulatory schemes. In practice, one tends to take “hard law” as its object, and the other recommends “soft law” because of its revisability. We argue that this tension can be productive for overcoming the challenges of each strand and we offer a theoretical resolution, one which takes the best from each practice in service of an approach that is not model-driven, but problem-centered, that seeks in its claims to science not a claim of final authority but one of discovery and willingness both to work within and challenge received wisdom. We offer two concepts by which to assess the success of a new legal realism: “emergent analytics” and “conditional theory.” These two concepts bring empiricism and experimentalism together. We reject in particular radical skepticism of formal law, to which both movements could be prone, and contend that new legal realism must closely engage with formal law’s conditional role in a dynamically changing world.