New Legal Realism at 20: Rethinking Law in an Era of Populism and Social Movements

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR’s unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, crossnational exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of “looking up, down, and sideways.” Notably, NLR embraces both “top-down” and “bottom-up” methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. In contrast to perspectives that narrow the law to a mere instrument of social control, NLR recognizes that the law is a complex and nuanced social phenomenon with relative autonomy that often leads to unintended consequences. Two case studies––one in Colombia and the other in Brazil––elucidate the complex power dynamics of law’s interaction with elites and grassroots social movements. In Colombia, grassroots social movements appropriated and repurposed corporate law and neoliberal reforms to advance progressive causes. Conversely, in Brazil, populist and illiberal leaders exploited a progressive government policy promoting digital access and reoriented it towards objectives that were contrary to the original intent of the policy. Both cases exemplify NLR’s insistence on observing “top-down” policies as well as “bottom-up” social processes to understand the ways in which law and policy are deployed by diverse actors in varied ways. They illustrate the particular nature of the law itself and how the law in any given moment represents the crystallization of the social forces that produced it through competition over the direction of legal and social change.