Many thanks to the folks at ELS Blog. I really appreciate the opportunity to
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 5th edition (or 10th 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
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.