In their opening comments and responses to other posts, Beth Mertz and Stewart Macaulay ably made the connection between the New Legal Realism (NLR) and established traditions of empirical inquiry among law and society scholars. Stewart reasserted a theme of his own classic work, that legal scholars should seek "a more accurate picture of law in action" before they offer proposals for changing law. Beth called attention to the need for socio-legal scholars to more self-consciously translate their research findings to have a broader effect within the legal academy, among policy audiences, and among the public. Both advocated a multiplicity of empirical methods, a self-critical humility for the nature of the claims that can be supported by different modes of empirical research, and at least an implicit recognition of the need to connect empirical inquiry to broader theoretical propositions about law and society. As empirical legal studies expands and matures in the legal academy, these principles are important for the intellectual significance of the enterprise.
In this essay I want to briefly argue that theoretically driven research that uses multiple methods can produce stronger validity claims, can better illuminate the social mechanisms through which law operates, and may lead to research findings that more readily translate to broader publics. In other words, research that advances the goals of NLR. I will try to carry the argument with the examples of three research projects, one by a colleague and two in which I have been personally involved.
Laura Beth Nielsen's License to Harass (Princeton University Press 2004) studied offensive public speech through observation and in-depth interviews with some 100 respondents, including white men, white women, and men and women of color. She found that the experience of these groups with sexist and racist speech on the street varied dramatically by social group, with women and people of color encountering harassment at shocking levels. While all social groups saw offensive speech as a serious social problem, a large majority of respondents in all social groups opposed legal intervention to deal with it. But the groups based their positions on different rationales. White men articulated a classic first amendment view, women invoked a discourse of autonomy (they would take care of it themselves), and people of color (especially men) spoke of a distrust of authority (they thought the law would be used against them). Without an in-depth investigation of the discourses employed by these different groups, we would know much less about their legal consciousness concerning offensive public speech. Nielsen is thus able to offer some profound insights into the experiences of different social groups on the street, their attitudes about the law, and about the role of law in shaping those attitudes and providing a license for offensive speech to continue to operate.
In Legalizing Gender Inequality (Cambridge University Press 1999), William Bridges and I examined four case studies of litigation concerning gender-based pay discrimination. Because the cases involved comparisons of wages across different predominantly male and predominantly female jobs, the cases were characterized as comparable worth cases. The defendant employers in these cases invoked a market defense, arguing that the wage differentials reflected market processes rather than gender discrimination. The courts in 3 of the 4 cases accepted that defense. Our book subjects those legal holdings to empirical scrutiny through a variety of labor market, employment payroll data, organization process data, and in-depth interviews. The different forms of data converge to reject the market defense. For example, in AFSCME v. State of Washington, we found that a state pay survey that was treated as a neutral scientific instrument for determining job-level pay was in fact riddled with arbitrariness and bureaucratic politics. As a state labor union representative commented, they were not "going to rob Peter to pay Pauline." The book concludes that the courts in these cases interpreted antidiscrimination law as potentially providing a remedy for between-job pay discrimination, while at the same time refusing to critically analyze actual wage-setting practices in these organizations. The result was that the courts legitimated between-job gender inequality in pay.
The final example concerns a project currently underway by Laura Beth Nielsen, John Donohue, Peter Siegelman, and myself. The project examines the changing dynamics of employment discrimination litigation from 1987 to 2002. We possess a full set of EEOC complaints from that period, in addition to a large random sample of federal court filings from 7 jurisdictions, which we have coded and begun to analyze quantitatively. The statistical data will allow us to comprehensively examine the system of discrimination disputing and to test whether it is operating differently than during the 1972-1987 period analyzed by Donohue and Siegelman in their earlier work. Employment discrimination litigation has become an intensely contested arena. Many commentators assert that the dramatic rise in discrimination lawsuits, which roughly tripled between 1991 and 1998, is a result of growing numbers of frivolous lawsuits.
We are also interviewing in depth parties and their lawyers in a selected subset of cases. After conducting some 50 in-depth interviews thus far, we already have gained important insights into how the system operates. The interviews have literally brought these cases to life. One African-American plaintiff described how he had been asked by his immediate supervisor whether he had ever had sex with his daughters, as he had heard that slaves used to do. When internal complaints did not remedy his work environment, he filed suit. In our dataset he is coded as an early settlement on the outcome variable. But what the coded file does not indicate is the gravity of the insult he received, the fact that as a result of the lawsuit he became divorced, went bankrupt, felt enormous physical stress. Although he won his job back as part of the settlement, he was laid off in a reduction in force a year later. When asked whether he would file the lawsuit again, he said no, that he "would have took it." In this case, as with almost all the plaintiffs we have interviewed, we find serious injuries, even though the proof of illegal discrimination sometimes is shaky. Indeed, the defense attorneys largely concede that most of the cases they encounter involve individuals who have been "wounded" at work.
While we have more data to collect and analyze, the combination of systematic statistics and in-depth interviews is likely to produce a better understanding of antidiscrimination law in action than presently exists. This combination should allow us to disseminate our results more effectively to legal, academic, policy, and public audiences than might be the case with only qualitative or quantitative data.