What is Empirical Legal Scholarship?

For many reasons, the work of empirical scholars has been gaining greater attention in law schools in recent years, right along with the work of other interdisciplinary scholars.   A few weeks ago during my guest blogging stint, I highlighted some of the challenges of the increasing focus on interdisciplinary scholarship in law schools, including how to treat co-authored work and the chasm between the work of legal scholars and scholars in other disciplines.

But after my series of posts, I began asking myself the fundamental question of whether empirical work is necessarily interdisciplinary in nature?  To be sure, in many cases, an advanced degree in another discipline can be an advantage in undertaking empirical scholarship.  But unlike law and [fill in the blank], empirical work is about methodology and applying statistical tools to understand or explain trends and other phenomena.  While many disciplines (such as sociology and political science) rightly emphasize statistical techniques and methodology, especially among its advanced degree students, no schools to my knowledge offer Ph.D.s in empirical methodology that are wholly divorced from an underlying substantive discipline (except maybe in statistics).  Why not?  It is because empirical techniques are not particularly useful without an understanding of the phenomena or trends that are being studied.

For that reason, I do not consider myself exclusively, or perhaps even primarily, an empirical scholar, even when I undertake work with an empirical focus.  In one of my current projects, for example, I have mined the papers of Justice Harry Blackmun in an attempt to determine the reasons why the Supreme Court's docket shrunk so precipitously between 1986 and 1993.  I largely have the answers now, but only part of the explanation can be found in the raw data itself.  Without an understanding of the history of the Court and the trends that were occurring at the time, I am not sure that the data alone would have been particularly useful to me.  In other words, it is difficult to form a workable hypothesis (absent letting the data entirely drive the process) without understanding the context of the issue or phenomenon being studied.  My ongoing project is as much about history and legal trends as it is about empirical methodology.

Thus, I posit the (perhaps too philosophical) question of whether empirical legal scholarship is just another form of legal scholarship--that is, is it just another way that we study legal doctrine and institutions?  Traditional doctrinal scholars use the language of opinions, statutory provisions, and other legal sources to argue for a particular understanding or construction of the law.   Empirical scholars simply use a different set of tools--statistical techniques and rigorous empirical methodology--to study the law and legal institutions.  Do we call empirical work interdisciplinary simply because many scholars who engage in such work also have advanced degrees in other disciplines or is there something more fundamentally interdisciplinary about our work that I am missing?

FURTHER THOUGHTS: By the way, I do not mean to undersell in this post the growing impact of empirical work on legal scholarship.  The growth of such scholarship over the past few years, in part to test the theories and hypotheses of other legal scholars, has been an important development in the academy and has no doubt fostered greater interdisciplinary collaboration.  I only ask this question to solicit thoughts about the nature of our work.

Comments

[ro398ck]

m823k

[Joe Doherty]

The model for ELS can be found in the relatively new subfields of (other) social sciences: Economics (econometrics), Political Science (political methodology), Psychology (psychometrics), etc. In each of those fields you will find a distinctive set of tools that are (a) freely borrowed from elsewhere and (b) understood within the discipline as useful for answering their questions. Changes in the toolbox generally follow the trends in theoretical scholarship, and at the extremes it appears that each field uses a different statistical model to answer the same question.

I think ELS is still in the borrowing phase (a). We're still agreeing upon the best methods for measuring and analyzing our problems, which is why it looks interdisciplinary. In time we'll move to (b). At that time I expect that ELS will be a well-recognized subfield within law schools, alongside bankruptcy and civil procedure.