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May 09, 2006


Scott Moss

Seems like most of us are gravitating to something like a consensus on this one; I just put a guest post on Prawfsblawg responding to all this and saying (more wordily) what Bill H just succinctly said -- that ELS may follow a similar trajectory to L&E, which would be a fine thing.

William Henderson

In a nutshell, I agree with the posts here. I would be happy if ELS followed a similar trajectory to L&E--i.e., an important tool within several substantive legal subfields.

Michael Heise

I agree with many of the important points raised in the comments.

1. To be sure, ELS should resist any "marginalization" push (self-imposed or other). Instead, ELS should seek to complement and, with any luck, enrich more traditional areas by adding scholarly value through methodological rigor.

2. Although "methods for methods sake," has its place (and can be fun), it is usually not as exciting as deploying empirical tools in the service of testing hypotheses drawn from traditional substantive legal areas.

3. The main thrust of my (much smaller) point is only that as ELS norms develop and mature I feel it quite important that legal scholars contribute to and participate in this development. In too many areas of legal scholarship critical nuance is lost on those unfamiliar with the relevant literatures.

Jason Czarnezki

It seems that both ELS and L&E are already treated as subfields. Both now have conferences (CELS, ALEA) and journals (JELS, JLE). Ethan asks whether these are "distinct substantive areas of legal inquiry." Is this a different question? L&E has casebooks and course devoted to it (so does Law and Social Science). I don't think L&E has been "ghettoized," nor is it solely a methodological subfield. While I agree with Bill, that ELS should not be only a methods subfield, why not consider it a subfield that includes many who do empirical work regardless of area? It seems that a success of L&E is that it permeates so many substantive areas. The same claim could be made about ELS. But is ELS perceived to be too methods oriented and therefore too dissimilar to L&E? As Bill blogged about, there were many "empirical" papers at ALEA. I'd like to hear more about how the ELS movement is perceived versus the L&E movement.

William Henderson

I hate to be contrarian here, but I would be AGAINST the recognition of an ELS subfield. Rather, ELS articles should be written in a way that is accessible to nonempirical scholars; similarly, nonempirical scholars can benefit from overcoming discomfort with quantitative analysis.

The value of ELS is that it reduces the need to argue over factual assumptions, including the effect of legal rules. Many areas of disagreement among nonempirical legal scholars can be formulated as testable hypotheses. If ELS is ghettoized into a "methods" subfield, we will miss the opportunity to improve the functioning of law and ultimately the political process.

The cost and complexity of empirical research is plummeting; there is no legitimate reason to mystify this skill set. Most lawyers can learn the basics by reading some studies, attending a workshop, and buying a few reference books. For most law professors, a moderate investment in this new human capital will pay large career benefits. Further, sophisticated consumers of empirical work will increase both output and quality.

frank cross

I have mixed feelings here. I certainly don't want the empiricists ghettoized into a distinct but small area. As such scholarship grows, I'm still hoping that it will become more the rule rather than the exception. If that occurs, the subfield could exist and be comprised of methods experts who assist those doing empirical work in traditional areas.

Of course, the best characterization I have for my research is the empirical study of "law" itself, which is nowhere near any traditional substantive area. So maybe I need a subfield.

Jason Czarnezki

Michael's post raises a number of points.

1. I agree with Michael that there should be a distinct subfield. Perhaps we should have a AALS Section on "Empirical Legal Studies" or "Empirical Methodologies." Does anyone out there have experience with creating a new AALS Section?

2. I'm skeptical of Ethan's comment that empirical legal scholars get a "free pass" in needing to have a substantive area of expertise. A good number of our guest bloggers, for example, do empirical work in their substantive areas of expertise (e.g., education policy, financial markets, administrative law, legal interpretation, judicial behavior, law & econ, etc.). However, Ethan likely has a testable hypothesis.

3. What is interesting about law professors engaging in empirical studies is that not only do legal scholars attempt to understand and use various methodological techniques, and apply them to substantive legal areas (where they may or may not be experts in), but law professors, due to the professional training goals of law schools, must also know and teach other substantive fields (e.g., civil procedure, property, evidence, etc.) that may not be a part of their empirical agenda. (I do not suggest that these are not subject to empirical inquiry, only that someone who does empirical studies of, say, the monetary awards in the torts system, might also be an expert in Civ Pro.)

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