In my previous post, I have discussed the potential criticism on the increase in the number of empirical legal scholars in a given community. To some extent, this criticism is related to the critique regarding the current structure of empirical legal studies, advocated by Hanoch Dagan, a prominent legal theorist and the former dean of TAU. Dagan has recently wrote a paper analyzing this topic with Roy Krietner and Tami Krichelli-Katz (forthcoming in Law and Social Inquiry 2015). In the paper, the three demonstrate how empirical research regarding topics such as compliance and employment discrimination, should be conducted.
The essence of Dagan, Krietner and Krichelli-Katz's argument, as I understand it, is related to the disconnect between legal theory and empirical legal scholarship. The three claim that empirical legal studies scholars' use law as a database for economic, sociologists of a psychological analysis rather than truly interact with normative questions that could be answered and should be focused on. Without interaction with legal theory, the recommendations of empirical legal studies will only influence public policy rather than legal policy.
It seems to me that there are two main accounts for their observation; one focuses on people, while the other focuses on the nature of the field.
The ‘people’ oriented argument is related to an effect we might refer to as crowding out. People have limited energy and ability, and therefor the focus on being methodically accurate crowds out the focus on theory. Other minor arguments also support this perspective; a methodological mistake is presumably unforgivable while lack of reliance on legal theory is. As ELS becomes more and more methodically sophisticated, scholars with a very rigorous methodological background are more likely to come from departments, which are not law.
The ‘field’ oriented perspective is related to the nature of many methodological approaches which focus on analyzing what is empirical research and examining the nature of the legal theory. Many scholars from departments like psychology and even law, view the behavioral analysis of law, which heavily relies on ELS, as an applied science. In such case, Dagan’s criticism is in place, as the likelihood that legal theory would be used properly is minimal. If however, the focus on empirical legal studies is aimed at contributing to a normative discourse that exists in law and the empirical component is able to fit into the theory, then the picture is different.
In the next post I will examine the background of the phenomenon discussed in this post and will discuss why is ELS so successful in Israel and whether it is going to spread to other countries in the same pace of success.