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Emily S. Taylor Poppe, New Legal Realism Goes to Law School, in Research Handbook On Modern Legal Realism 191 (Shauhin Talesh, Heinz Klug, & Elizabeth Mertz eds., 2020).

New Legal Realism Goes to Law School is a chapter in a book on New Legal Realism (NLR)—a jurisprudential movement studying the role of law in everyday life through empirical methods—that takes on the specific question of how to advance the self-defined NLR aspiration to “integrate law and social science to form a truly interdisciplinary approach to law.” (P. 191.) In this piece, Taylor Poppe focuses on one possible way of advancing that goal: improving the teaching of empiricism (and interdisciplinarity through empiricism) in law school by not just training “empiricists to communicate with lawyers and legal scholars, but also…building the bridge from the other side.” (P. 192.) To do so, she argues that NLR “must convince legal scholars and practitioners of the value of interdisciplinarity and must ensure they are equipped with the skills and knowledge needed to engage with empirical data and analysis,” leading her to consider changing legal education through “the inclusion of training in empirical methods in the law school curriculum, the adoption of evidence-based inclusive pedagogy, and the integration of social science insights into the explication of legal doctrine.” (Id.)

Taylor Poppe begins by canvassing impediments to greater interdisciplinary integration. And this is something she is quite good at: crystallizing the existing landscape by pulling together different types of materials and showing how they work together to create interlocking barriers. For example, she lays aim at the ABA, which does not promote engagement with empiricism in its accreditation standards, and critiques “the formal and hidden curricula of law school and the dominant pedagogical techniques,” (P. 194) particularly the Socratic method and winner-take-all-exam, arguing that the “continued use of these methods despite awareness of their flaws represents a profound dismissal of empirical knowledge.” (P. 195.) This, along with the rejection of evidence-based policy analysis, results in law school teaching “future lawyers and legal scholars that law stands apart as a discipline, that conclusions about the functioning of law in the world do not require recourse to empirical evidence, and that neither law-making nor legal practice require fluency in methods of empirical analysis.” (Id.)

Responding to this harsh assessment, Taylor Poppe proposes equipping students “with a working knowledge of empirical methods,” focused on understanding research design, being able to “place studies they encounter within a larger methodological context,” and appreciating “how empiricists draw inferences.” (Pp. 196-97.) She further calls for “measures of teaching effectiveness beyond student evaluations,” “linking doctrinal legal education to the realities of legal practice, incorporating bottom-up perspectives on law and legal institutions, de-centering law and increasing attention to the social contexts within which law operates.” (P. 198.) Noting how consigning contextual analyses of law in action to spaces like legal clinics may serve to reinforce the empirical disconnect in doctrinal classes, Taylor Poppe concludes with a helpful analysis of her own efforts to advance an NLR approach to 1L Civil Pro, which consists of “covering those topics that future lawyers are most likely to face in a practice,” (P. 199) reorienting content toward state courts, where most litigation occurs, (P. 200) focusing on “discovery and motion practice” since that is where litigators spend most of their time, (Id.) and situating civil procedure within the broader ecosystem of dispute resolution. (P. 201.) To advance these goals, she proposes providing greater social context for doctrine, assigning materials other than appellate cases, and grounding policy discussions on empirical evidence. (Id.) She concludes optimistically by arguing that the rise of technology, which requires understanding underlying data, may create more space for incorporating empirical approaches—an opportunity strengthened by the perceived crisis in legal education and the rise of “alternative facts,” which make this an important moment to rethink how to better train lawyers to strengthen fact-based discourse and protect the rule of law.

This chapter succeeds in making a targeted intervention that provides useful insights into how law school might change to advance NLR goals. This means that the chapter is not about defending NLR goals as first principles—which could be debated—but rather taking those as a given and asking what can be done. This approach is consistent with the framework of the book she is contributing to. The chapter has a number of strengths, which include a helpful discussion of the NLR literature, the rise of interdisciplinarity in law schools, and how law school shapes student identities. These issues are not novel, but Taylor Poppe puts them together in a compact way that helpfully sets the frame for her recommendations for reform.

I found her analysis of the problems of contemporary legal education useful beyond the arguments she makes about advancing NLR. Specifically, her points about the lack of a systematic evidence-based approach to policy argumentation and teaching were sharp and persuasive, framed in a way that I had not considered before and thus appreciated having read. How can we teach students to make policy arguments in the abstract without grounding them in data? Some of her recommendations about how to incorporate NLR into teaching felt familiar, and some (like contextualizing problems and assigning alternative materials) seemed widespread from my anecdotal knowledge. This did make me want more empirical data about what law professors actually do with regard to interdisciplinarity, which is an interesting future project. In that regard, there is strong evidence of the rise of Ph.Ds in law teaching, particularly at elite schools, suggesting that “social science integration” is already happening at a level never before seen in the legal academy—although this may affect scholarship more than approaches to teaching. The chapter also raised for me the question of what value empirical methods and approaches to legal scholarship give to law students, the overwhelming majority of whom are training for law as a vocation. Thus, it might be the case that, on the one hand, the glass is already half full from an NLR perspective, while on the other, we might be concerned about how far the shift toward interdisciplinarity pulls law schools established to prepare lawyers for practice away from that mission.

As law schools struggle through the Age of Trump with how to teach the basic skill of logical reasoning and fact-based discourse in a context where an increasing number of students do not subscribe to a common knowledge platform, Taylor Poppe’s ideas about the importance of facts and data resonate and deserve to be taken seriously—beyond the ambit of NLR. There are her specific recommendations to improve teaching effectiveness, such as promoting greater attention to evidence-based pedagogy, which are helpful; but for me the most important takeaway was that in an era of greater attention to empiricism in legal scholarship, we need to find ways to use that knowledge to strengthen the essential function of law: to bridge differences and promote shared conceptions of justice. In short, the challenge Taylor Poppe asserts is how an NLR approach could scale up beyond teaching methods and contextualizing specific doctrinal subjects to stabilize the empirical foundations of the rule of law.

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Cite as: Scott Cummings, A New Realist Perspective on How to Make Law School Better, JOTWELL (November 18, 2022) (reviewing Emily S. Taylor Poppe, New Legal Realism Goes to Law School, in Research Handbook On Modern Legal Realism 191 (Shauhin Talesh, Heinz Klug, & Elizabeth Mertz eds., 2020)), https://legalpro.jotwell.com/a-new-realist-perspective-on-how-to-make-law-school-better/.