ELS and not be 'laughably beside the point'

Many thanks to the folks at ELS Blog.  I really appreciate the opportunity to guest blog. 

In a recent article in the Indiana Law Journal, Tracey George wrote that “[e]mpirical legal scholarship (ELS) is arguably the next big thing in legal intellectual thought.”  I agree. Yet, as I worked on a grant proposal last summer for a longitudinal study of the consumption, production and content of legal scholarship (discussed by one of my co-PI, Funmi Arewa, at Conglomerate back in March), I was surprised to learn that this is the second time that empirical studies was the next big thing.l During the 1920s and ‘30s, the sociological jurisprudence and legal realism movements embraced the social sciences as the primary vehicle for revamping legal scholarship (and, surprisingly, the law school curriculum). A key element of this agenda was empirical research by law professors.

Yet, the most prominent legal realists were much better at praising empiricism than actually doing the arduous task of data collection and analysis. High quality empirical work, it turned out, was time-consuming, expensive, and sometimes produced findings that were at odds with the ideological preferences of major funders or progressive colleagues.  There are several articles and books that chronicle this failure, but the most definitive is probably John Henry Schlegel’s American Legal Realism & Empirical Social Science (1995).   

Obviously, some institutional factors favor a better fate for ELS this time around.  For example, the digital revolution has dramatically reduced the obstacles to data collection, though the remaining work is still underappreciated and time consuming.  Statistical programs such as Stata and SPSS are also relatively inexpensive, easy to use, and far more powerful than the first generation of computer software. The successful launching of the Journal of Empirical Legal Studies, which is edited entirely by law professors, is another encouraging sign.

Despite these important supply-side factors, however, there are important issues of institutional structure and purpose that the current ELS movement fails to address.  

The most salient issue is that law schools educate lawyers, not social scientists.  For ELS to flourish over the long run, it relevance needs to be readily apparent to lawyers, judges, and law students.  Insofar as ELS offers new insights into contract law, tort law, evidence, the litigation process, judicial decision-making, and the economic and social structure of the legal profession, they need to be incorporated into the curriculum. Yet, there are minimal incentives for curricular innovation or professional service (such as engaging with judges or the practicing bar), but substantial incentives for the production of scholarly articles. Often times it is easier to plod along teaching doctrine from a 5^th edition (or 10^th edition) case book in order conserve resources for time-intensive but professionally rewarding empirical work. Further, writing new teaching materials generates cash rather than professional prestige; and breaking new ground in an established course can be a highly speculative endeavor.

Prior to the recent emphasis on empiricism, this system of incentives pushed law professors further away from the world of lawyers.  Judge Harry T. Edwards’s famous article, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992), which produced a fractious symposium debate the following year, accurately reflects the disdain of many judges and lawyers for the theoretical work of the various “Law and … “ movements. Indeed, Bill Ford just pointed us pointed us to the comments of U.S. District Judge Richard Kopf, who opined that “many of the ‘elite’ [law] reviews [are] laughably beside the point.”  Is this viewpoint entirely undeserved?

If ELS truly is the next big thing, it needs to resonant with our students, practicing lawyers, and policy markers.  Fortunately, ELS has some strong cards to play. Later this week I will try to float some strategies.

Comments

[William Henderson]

Jeremy,

You raise some excellent points. To be sure, ELS is really social science methodology applied to legal problems and legal institutions. Perhaps the novelty is that legal academics are doing a larger share of the research.

One of the exciting possibilities of ELS is that it can be a wedge for more applied social science, primarily because our students often go on to positions of leadership in goverment and business. But this requires the weaving of social science into the curriculum. If it lays flat on the pages of JELS, we are missing an opportunity.

By the way, I am really glad to have your article, which I just downloaded. Many thanks.

[Jeremy A. Blumenthal]

Good points! I'll comment only on the first part, and look forward to resonating strategies:

In an article a few years ago, http://ssrn.com/abstract=355280 , I pointed out that in fact there have been calls and efforts to incorporate empirical and social scientific research into the American legal system throughout the 20th century. Even before the turn of the century European research on child suggestibility and forensic evidence (e.g., fingerprinting, ballistics, etc.) was being discussed and applied. In the early years of the 20th century Hugo Munsterberg vociferously advocated the incorporation of empirical research on eyewitness testimony, though such calls were effectively shut down by a law review response from Wigmore.

As I mention, and Prof. Schlegel discusses in more detail, in the late 1920’s Yale researchers Hutchins and Schlesinger (law and psychology, respectively) published in both law reviews and psychological journals, looking at the cognitive and behavioral underpinnings of evidence law and calling for specific experimental work to test legal assumptions about evidentiary rules.

The 1930’s saw judges more willing to look to extralegal sources, including taking judicial notice of empirical research when it had not been conducted, in at least obscenity case. Polygraph evidence became more common, and researchers were even conducting jury simulation studies (e.g., late 30’s / early 40’s) - with results quite similar to today’s.

The 1950’s saw empirical work in the context of work on insanity. In the 1960’s and especially the 1970’s empirical legal work burgeoned in the social sciences, with lots of emphasis on jury decision-making, eyewitness testimony, child suggestibility, and other work. Such efforts have continued until now.

So as wonderful as the “turn” to ELS is - and I’m a big proponent - we also need to take into account the work in other disciplines that’s been going on for quite some time. One terrific thing about the recent move in legal academia is that law profs are familiar with many more areas than simply juries and eyewitnesses, which have been the staples of psychological work for years. This has broadened the perspective on what’s amenable to empirical legal research - as many here have said, though, I think it’s important to communicate across disciplines, in order to help take advantage of social scientists’ expertise in methodology, data analysis, familiarity with existing literatures, etc.