Two recent articles posted on SSRN might be of interest:
Elizabeth Ellen Mertz, Undervaluing Indeterminacy: Translating Social Science
into Law
Drawing on concepts from linguistic anthropology, this Article analyzes the
different linguistic "ideologies" that shape social scientific and legal
discourse. Judges who draw on social science can make important mistakes if they
do not recognize these differences. In particular, they may mistake statements
of indeterminacy for admissions of inadequacy. To the contrary, often the best
social science research is characterized by careful delineation of its
limitations.
This paper gives an overview of the development of socio-legal thinking in
the last two centuries. It considers scholarship at the intersection of law,
economy, and society and is thus equally interested in the fields of “economy
and society”, “law and society”, and “law and economy” along with the respective
sub-disciplines of economic sociology, legal sociology, and law and economics.
The main argument is that socio-legal scholarship has followed a pattern of
three generations, or successive paradigms, which are specified as
“historicism”, “realism”, and “constructivism”. In outlining these developments,
the paper aims to further the economic sociology of law, which reconnects law,
economy, and society from a sociological point of view.
The paper first
introduces the pattern of the three generations and specifies that pattern with
regard to economic sociology, legal sociology, and social theory. Furthermore,
the paper links the pattern to more general developments in the
social-scientific field and condenses it in terms of “law in”, “law and”, and
“law as” approaches. The remainder of the paper explores the three generations
of socio-legal thinking in separate chapters, each starting with a view on the
general background. The historicist paradigm is exemplified by historical
jurisprudence, historical economics (including “old” institutional economics)
and classical historical sociology (Marx, Durkheim, Weber, Tönnies). Realist
scholarship is exemplified by legal realism (Holmes, Pound, Llewellyn), the “law
and economics” (Posner) and the “law and society” (Friedman) movements.
Constructivist scholarship is illustrated by recent scholarship in the economic
sociology of law and the social theory of law (Luhmann, Habermas, Bourdieu).
