Empirical Studies in Law

Fom Mark Graber at rBalkinization:

Empirical Legal Studies

Mark Graber

Empirical legal studies is hot. The 2006 Meeting of the AALS is devoted to that topic. Texas, Cornell, and NYU Schools of Law have decided to hold a rotating annual conference devoted to the subject. In most ways, this is a welcomed development. Given how much contemporary legal scholarship trenches on other academic disciplines, the more legal scholars engage in interdisciplinary conversations, the better interdisciplinary scholarship is likely to be, both in and outside of the legal academy. Moreover, rational choice and quantitative analysis have yielded important legal insights. Law professors using these tools should learn how they are best employed.

The potential problem with both the AALS and annual conference program is that they may be relying on a very narrow conception of empirical analysis and social science methodology, one that limits empirical studies to the use of statistics and rational choice (and rational choice, in many iterations, is not actually empirical). In fact, a great many prominent social scientists rely on other empirical methods. Consider Rogers Smith's magnificent, Civic Ideals. In that work, Smith analyzes more than 1000 judicial opinions on citizenship, exploring the liberal, republican, and racist/ascriptive strands in American constitutionalism. The analysis is empirical by any definition, he just does not use statistics. Similar could be said of David Yalof's important study, In Pursuit of Justice, which relies heavily on presidential papers and interviews to determine how presidents have selected judicial nominees. Indeed, the list is endless, encompassing works as different as Ran Hirschl's, Towards Juristocracy to Pamela Brandwein's, Reconstructing Reconstruction, of prominent empirical legal studies by social scientists that rely on methods other than statistics or rational choice.

The contemporary social science world is rife with methodological debates. I am a moderately active member of a loosely structured group known as perestroika, which seeks to promote a greater pluralism and openness to different empirical methods than is the case in some social science departments. We have no patent on the word empirical and law professors are free to insist that only rational choice or statistics are roads to empirical truth. When law professors participate in groups committed to empirical legal studies, however, they should be aware that most social scientists would not limit such analysis to rational choice and statistics and those who tell them otherwise are making self-serving comments on behalf of a particular tribe rather than speaking for their discipline.