In recent years, more and more scholars define themselves as empirical legal scholars and it seems that this trend is only getting stronger in recent years (see, for example, Heise, 2002 ; George, 2006).
It seems that in the Israeli context, this phenomenon is even greater, for reasons I will discuss in one of my next blog posts. In my estimation, more than of 10% of legal scholars in Law faculties in universities in Israel define empirical legal studies as one of their main research topics. Some of them have even started their career as empirical legal studies scholars and some are “traditional” legal scholars who shift their focus to conducting empirical work. Being in the hiring committee of my own university and talking to friends in other universities, it seems that hiring empirical legal studies scholars is a priority.
On a personal level for me, that’s a dream come true. More people with interest in empirical legal studies, means more attention, more research budgets, more PhD students in the field and more scholars to collaborate with. Nonetheless, the main question I want to raise in this post relates to the optimal ratio of empirical legal scholars, in a given faculty or a given community of legal academics.
The obvious objection to such situation is the notion of diversity, where the need in multiple theoretical perspectives is important for a rich discussion among scholars and for exploring various views to any legal question. However, one might respond that in contrast to law and economics (which some raise objection to their dominance in Israeli academia), empirical legal scholarship doesn’t have to adopt a narrow theoretical standpoint, as for example, many of the scholars who attend the ELS conference come from diverse backgrounds. Moreover, taking a broader approach to ELS, that includes for example, scholars who use qualitative methods, would ensure an even larger theoretical perspective.
An additional criticism would be that in any law school there is a need for people who would study all legal doctrines. If too many scholars study law empirically, very few scholars will need to carefully read cases for their research. In a small country like Israel, this might translate into a reduction in ability of the legal academia to criticize and support the coherent development of the case law.
A third possible objection would be the legal expertise of such legal scholars. Accounting for the fact that people have limited time and energy to read and learn, almost by definition, a scholar who have to master all the methods of empirical legal research could not dedicate the same amount of effort and time to learn the legal doctrine.
A forth objection, might be the dominant community of knowledge. In many ELS sub-communities, such as in the area of decision-making and law, there are a few dozen legal scholars and several thousand psychologists and economists. Since one might assume that the interest of legal scholarship and other disciplines may not be always aligned, it is possible to speculate that the larger and more established community would be more dominant. While this is a desirable situation from a methodological perspective, it might carry some inadvertent effect for the ability of ELS to fulfill the needs of the legal community.
A possible solution to this question is related to a conversation I recently held with Hanoch Dagan, the former dean of TAU Law school, I will write about in the next post, on the disconnect between legal theory and empirical legal studies.