I might as well say it at the outset; I don't like the nomenclature adopted by the ELS movement. I don't like "Empirical Legal Studies" as a name for a type (dare I say "school") of scholarship, and I positively bristle when people are called by their colleagues or describe themselves as "empiricists" or "legal empiricists." One reason for this, I am sure, is that where I (in part) come from - Sociology - to call someone an empiricist - or, even worse, a "dust-bowl empiricist" was not flattering. It implied a person who crunched numbers with no concern for theory and often without an inkling of what the numbers represented. Relationships are often easy to spot in data, but understanding what they mean and, in particular, the mechanisms that underlie and produce them is unlikely to result from number crunching alone. I wish I could say that legal empiricists have gotten beyond this, but too often I feel that the power of the number crunching that one now sees in law reviews is not matched by an equally sophisticated sense of how plausible theories are built and tested and how causal arguments are structured.
This is not to say that there is not considerable value in organizing complex data sets and laying our legally-relevant relationships. There is, and people who do this in an unbiased methodologically sophisticated manner make a genuine contribution. But if the goal is not simply to see what is out there, but to understand processes and institutions, too often empirical scholarship in law (though not only in law) not only falls short of the mark but overstates what analysis reveals.
But there is another more fundamental reason why I don't like the idea of defining some portion of the legal scholarly establishment - namely those doing quantitative data analysis - as empiricists. It seems to me that this ignores or denies the way in which legal scholarship, as traditionally done, is the most empirical of professions. The most traditional lawyers work with empirical data all the time - case texts. Texts are out there as part of the real world, and from the point of view of empirical scholarship have some substantial virtues. In particular they are transparent (even when opaque), equally accessible to all scholars and open to various methods of interpretation, some of which are better than others. They also often matter. Would that the data "legal empiricists" examined always had these virtues.
There is also the question of qualitative data. I am distant enough from the ELS movement that I do not know how its core advocates regard qualitative research, but taking down 5 volumes of the Journal of Empirical Legal Studies that happen to be close at hand I could not help but note that every article in every volume had a quantitative dimension. Each had at least a graph, table, equation or regression and most analyzed and presented results using more than one of these analytic modality. Yet qualitative research is as empirically-based as quantitative research and it can be as unbiased and as rigorous. Moreover, it is often more revealing of relationships legal scholars seek to understand, not to mention more accessible and interesting. Lawyers have done many quantitative studies I find useful and admire, but I would not elevate any of them above, for example, Bob Ellickson's study of Shasta county when it comes to developing and sharing an understanding of the real world or, in this case, illuminating the limitations of the Coase Theorem.
New tools allow for the more systematic analysis of qualitative data and for sharing qualitative data in ways never before possible. A cutting edge in social science research, including such heavily quantitative specialties as survey research, is the integration of qualitative and quantitative methodologies. Should the law school world fission into communities that exacerbate divisions between qualitative and quantitative researchers and between those interested in numbers and those analyzing doctrine, I think we will be falling behind the times in social science, and our understanding of the law and legal systems will be the worse for it.
I am not saying this is happening or that the movement to create "empirical legal scholarship" is pushing us in this direction. Indeed, the best people doing such scholarship are often the most interested in what non-quantitative research has to offer. But I do wish the law school world would find a different term than "empiricist" to describe people who work more with quantitative than with qualitative or doctrinal data. In the law school world, we are, almost all, empiricists.
Tomorrow: Common Sense and Theory