A recent paper by Josh Fischman (Northwestern) in the Penn L Rev, Reuniting Is and Ought in Empirical Legal Scholarship, urges ELS scholars to broaden their focus to include the normative dimensions of empirical work. Specifically, Fischman calls for increased attention to explaining how "positive findings relate to normative claims." An excerpted abstract follows.
"Scholars engaged in empirical legal research have long struggled to balance the methodological demands of social science with the normative aspirations of legal scholarship. In recent years, empirical legal scholarship has increased dramatically in methodological sophistication, but in the process has lost some of its relevance to the normative goals that animate legal scholarship....
Using as examples three types of measures commonly used to evaluate judges and institutions—citation counts, reversal rates, and inter-judge disparities—this Article describes widespread flaws in efforts to connect the ‘is’ and the ‘ought’ in empirical legal scholarship. The Article argues that normative implications should not be an afterthought in empirical research, but rather should inform research design. Empirical scholars should focus on quantities that can guide policy, and not merely on phenomena that are conveniently measured. They should be explicit about how they propose to measure the goodness of outcomes, disclose what assumptions are necessary to justify their proposed metrics, and explain how these metrics relate to the observable data. When values are difficult to quantify, legal empiricists will need to develop theoretical frameworks and empirical methods that can credibly connect empirical findings to policy-relevant conclusions."
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