THE NEW OLD LEGAL REALISM

The Old Realism was premised on the idea that legal scholars should go out into the field and collect data (although the original scholars often included more arguments for empirical work than actual examples of it).7 In recent years, building on the increasing influence of both political science and economics on legal scholarship, a New Legal Realism has emerged whose proponents are often skilled empi- ricists and whose focus is on how lawyers and judges in fact operate in context. 8 New Legal Realists look at lawyers and judges in context and seek to test models of judicial behavior, the most common being that judicial behavior is driven by judges' policy preferences.9 Broadly speaking, the New Legal Realism generally has a top-down feel to it: the scholars posit models based on theory and then collect data to test the model. Sociologist Kieran Healy's research on presumed consent laws and organ donations is illustrative.162 Healy examined the effects of presumed consent laws on rates of cadaveric organ donation, i.e., donations from the dead.163 The general assumption in the literature on organ donation is that presumed consent laws are crucial in inducing higher rates of donation-and the high rates of organ donation in Spain are frequently invoked in the context.164 Healy's cross-country empirical analysis, however, suggests that differences in the legal regimes cannot explain differences in behavior.