"Empirically Bankrupt"

Bob Rasmussen (Vanderbilt), one the the nation's leading bankruptcy scholars, has a working paper on SSRN, provocatively titled: Empirically Bankrupt.  The abstract:

    Empirical legal scholarship endeavors to resolve disputes that
    are indeterminate at the level of theory. The nature of empirical
    claims, however, requires that consumers of this work bring a
    healthy dose of skepticism to any of these projects. Three recent
    works in the area of corporate reorganizations illustrate how a
    project that appears on its face to settle scholarly debate can
    rest on choices that the researcher made rather than on the data
    itself. One of these works seeks to discredit proposals to make
    bankruptcy law a default rule rather than a mandatory rule, but
    it draws its data from a sample half of which is made up of
    individuals, who by definition are outside the reach of the
    proposed reform. Moreover, the entire sample omits publicly held
    corporations, the main target of the reform being examined. The
    second article discredits prior reorganization practice, but only
    by establishing a standard that no bankruptcy system has ever
    satisfied. The third piece concludes that competition for large
    Chapter 11 cases has corrupted our bankruptcy system, but the
    empirical basis for this conclusion rests on combining
    fundamentally different types of bankruptcy cases. For empirical
    work to be credited, at a minimum, it has to look in the right
    place, ask the right question and draw the right inferences. When
    empirical work fails to cross this threshold, it conclusions must
    be rejected.

Setting aside the question of whether Rasmussen's specific critiques succeed, from a methods perspective his paper serves as a helpful reminder about important limitations to empirical legal scholarship and its claims.

Comments

[Joe Doherty]

At the risk of going Lott, I found it hard to read Rasmussen's critique of LoPucki's book without wanting to re-run the tables in our 2002 article (LoPucki & Doherty, 55 Vanderbilt LR 1933) in which we tested everyone's pet theories for why Delaware cases ended so badly. I succumbed to the urge, launched SPSS, and re-ran Table 21 the way Rasmussen would like, using only the 'traditional' cases. I still get a significant coefficient for Delaware (p = .07, 2-tailed). This confused me, as I assumed that he was verifying/replicating our work. So I used the "find" function to locate the section where Rasmussen interpreted our article, and found that he didn't mention it anywhere. This hurts my pride (I'll recover). But it also inverts the meaning of Michael Heise's statement about the value of Rasmussen's paper as a "helpful reminder" to empirical legal scholars; it's important grapple with and acknowledge the existing research before criticizing it's execution.