Article

The New Legal Realism

Thomas J. Miles

Assistant Professor of Law, The University of Chicago

Cass R. Sunstein

Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

In 1931, Karl Llewellyn attempted to capture the empirical goals of the legal realists by referring to early “efforts . . . to capitalize the wealth of our reported cases to make large-scale quantitative studies of facts and outcome.” Llewellyn emphasized “the hope . . . that these might develop lines of prediction more sure, or at least capable of adding further certainty to the predictions based as hitherto on intensive study of smaller bodies of cases.” But Llewellyn added, with apparent embarrassment: “I know of no published results.”

We are in the midst of a flowering of “large-scale quantitative studies of facts and outcome,” with numerous published results. The relevant studies have produced a New Legal Realism—an effort to understand the sources of judicial decisions on the basis of testable hypotheses and large data sets. Our goals in this essay, prompted by Peter Strauss’s illuminating discussion, are to offer a few general remarks on the New Legal Realists and to place those remarks in the context of some of the central questions in administrative law.

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