Empirical Legal Studies

Legal Theory and Empirical Legal Studies

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.

Is There an Optimal Ratio of Empirical Legal Studies Scholars in a Given Country?

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.

Global Empirical Legal Studies: A View From Israel

It is quite clear by now for anyone who attends the annual ELS conferences or reads JELS recent volumes, that the empirical legal studies scope is indeed global. As part of the global empirical legal studies initiative which was the vision of the late Ted Eisenberg, two main meetings were organized. An inaugural two days meeting, organized by Dawn Chutkow, Michael Heise, and Valerie Hans, was held in London last summer and a second meeting was held during the last CELS conference at Berkeley.

 As a continuation of this initiative, in the next few weeks I will serve as a guest blogger at ELS. I will write about some international perspectives on ELS with a natural focus on topics related to the research done in Israel. I hope that with additional bloggers from other countries, a richer, more global, perspective will be presented to both U.S and international readers.

In addition to describing some of the relevant empirical legal research in Israel, in my future posts I plan on discussing the following topics:

• The increasing ability of international legal scholars to publish in the U.S due to empirical legal studies.
• Is empirical legal studies an applied or basic field?
• What is the optimal ratio of empirical legal studies scholars (relative to the number of “other” legal scholars) in a given country?
• Are law professors who are also empirical legal studies scholars more limited in their policy arguments than law professors who are theorists?
• Should empirical legal studies care more about the legal theory or the disciplines from which they borrow their method? 
• Who is better suited to serve in behavioral insight team panels? Psychologists, economists or empirical legal studies scholars? 
• What would change in behavioral law and economics, if we move from a focus on rationality to the limits of deliberation?

Regression With a Categorical Dependent Variable

Not infrequently, particularly in psychology/sociology where survey instruments are common, a question arises about whether a 5- or 7-point Likert-scale variable can serve as a dependent variable in a regression specification. As this listserv discussion illustrates (here), one response is that such a question is no longer necessary with the ordered probit/logit command ('oprobit' and 'ologit'), assuming certain assumptions hold (namely, that the various options rank order coherently).

2015 Research Design For Causal Inference Workshops

Northwestern and Duke Universities along with the Society for Empirical Legal Studies will co-sponsor a pair of causal inference workshops this summer. Organized by Bernie Black (Northwestern) and Mat McCubbins (Duke), the "Main" workshop will take place during an entire work-week in July (13-17, 2015) and the "Advanced" workshop will follow, running from July 19-22, 2015. Both workshops will take place at Northwestern University Law School, in downtown Chicago. These workshops feature world-class faculty, and are an excellent and efficient way to become acquainted with contemporary approaches for making causal inferences from various kinds of observational and experimental data. Details and registration information can be found here.

Gelman's 6 Quick Tips for Regression Modeling

While these suggestions should be obvious to most, Andrew Gelman's (Columbia--statistics) six tips nonetheless warrant repetition. Sometimes it's the obvious that we forget first. (The six tips are drawn from a book Gelman co-wrote with Jennifer Hill, Data Analysis Using Regression and Multilevel/Hierarchical Models.)