The Realist Use of Empirical Legal Studies: A Case Study of Reasonableness

Abstract Today, the conjunction of “legal realism” and “Empirical Legal Studies” calls to mind demonstrations of biased decision-making: legal decisions are driven by actors’ personality, politics, or even breakfast! In American legal theory, Empirical Legal Studies has long been associated with legal realism, and our understanding of the former has thus been refracted through the “received view” of the latter. On this received view, conceptualism and doctrinalism are the foils of realism and Empirical Legal Studies. We sketch a different picture of this relationship. The crux of our proposal is that legal realism does not radically reject all legal conceptualism, and that it is amenable to using empirical studies to clarify legal concepts. Understanding legal realism in this way also illuminates an important and underutilized form of Empirical Legal Studies. As an extended example, we consider the concept of reasonableness. At first, this concept might seem to be a ready subject for proponents of the received view of realism: “reasonableness” is a flexible gap-filler, and empirical studies can reveal bias. But recent empirical research examines reasonableness in a more conceptual light. This article introduces this work and what it shows for realism, conceptualism, and Empirical Legal Studies.