Last week I have discussed the role of legal theory in ELS. Fishman's paper serves as a great relevant example regarding this same tension (Fishman, 2013).
In the previous post, I have suggested that the greater interconnection between legal theory and empirical legal studies could also help mitigate the criticism on the dramatic increase of ELS in certain legal communities. In today's post I will examine a question I should have probably mentioned earlier; why are so many Israeli legal scholars doing ELS and what can we learn from this fact regarding the likelihood of such increase in other countries as well.
I have not studied this question seriously, but it seems to me that relative to its size, there are more Israeli scholars in ELS conferences than any other non-U.S. country. (However, there is a long list of biases, availability being an obvious example, that would explain why my perception may be inaccurate.) This kind of observation has been shared in the past by Oren Gazal-Ayal from Haifa in the context of Law and economics (Gazal-Ayal 2007).
Like scholars from other countries, in order for Israeli scholars to be promoted, they need to be published in top U.S. journals (this is of course not the case in all countries and I actually think it’s the exact opposite when it comes to larger European countries’ legal academia). The need to be published in U.S. journals in order to get promoted is giving an obvious advantage to legal scholars who were educated in the U.S. Furthermore, the argument that Gazal-Ayal raises with regard to Law and Econ is that Israelis who want to participate in the global market of ideas, with special emphasis on the U.S. academic market, focus on law and economics, which tends to be a more universal area, relative to more doctrinal areas of research which are more jurisdiction dependent. One might wonder whether this might be the case with regard to empirical legal studies as well. In principle, many similarities can be identified; in both approaches the necessary knowledge of the doctrine is minimal (but see my previous post), the knowledge of math and/or statistics, respectively, could replace knowledge of U.S. law, and both partly rely on disciplinary fields which argue to be universal (e.g. economics or psychology). However, there are also some notable differences between these two communities of knowledge. First, in many strands of empirical legal studies, much of an argument's development process is related to collecting data about legally relevant institutions. In many of these institutions, variation among countries is such that when brought as evidence, it could never influence American legal policy without further “local” findings. Another strand of empirical legal studies is based upon experimental methods. Admittedly, in most aspects of experimental psychology, the country where the experiment was conducted in is not as important. In the experimental legal analysis, however, questions of cultural context might play a much larger role than in many other applied sciences.
Another two colleagues of mine, Ariel Bendor and Yifat Holtzman-Gazit, have written a paper in Hebrew in which they suggest that the focus on ELS is driven from the pressure universities in Israel put on researchers to get grants. In many of the universities in Israel getting grants is necessary for promotion. (In Israel there are 4-5 ranks in contrast to 2-3 in the U.S. so promotion is more present in the life of Israeli scholars.) Naturally, they argue, it is easier to get grants for empirical projects relatively to theoretical ones. While I personally would like to think that this is not the case, I have no empirical evidence against it.
In sum, one might conclude that if similar trends exist in other countries (e.g. being universal rather than writing on local law and getting grants), my colleagues' prediction might suggest that ELS is about to become more and more global.