Last April, we posted the abstract of Robert Rasmussen's (Vanderbilt) working paper, "Empirically Bankrupt," which critiques three empirical papers in the bankruptcy area. The abstract concluded that "[f]or 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."
One of the articles being critiqued was Elizabeth Warren's (Harvard) & Jay Lawrence Westbrook's (Texas) recent study, Contracting Out of Bankruptcy: An Empirical Intervention, 118 Harv. L. Rev. 1197 (2005). A few months ago, Warren & Westbrook posted a rejoinder, "The Dialogue Between Theoretical and Empirical Scholarship," that not only addresses Rasmussen's criticism, but also tries to articulate an optimal relationship between theory and empiricism. The entire exchange between Rasmussen and Warren & Westbrook is worth reading. Here is the abstract of the rejoinder essay:
In this essay we offer brief reflections on the best process for critiquing empirical work in law and sustaining an engagement between theoretical and empirical approaches. We emphasize the importance of theoretical work in helping to shape the scholarly agenda, but we urge that theory should be more closely tied to fact. We illustrate our argument by responding to a recent critique of our own empirical work by Professor Rasmussen. His principal claim is that our work should be discounted because we reported on all business bankruptcies, both those of entrepreneurs and those in corporate form. In response, we reanalyze our data, separating the individuals from the corporations; in every case the re-analyzed data support the conclusions of our original paper to the same extent or more strongly. Similarly, his other claims about our work are shown to be incorrect.