An article from the National Law Journal (reg. req'd) captures the debate over the merits of empirical legal scholarship. I was in a particularly bad mood the day the reporter called and took it out on ELS, so my remarks are a bit more frank than they might have been had I been feeling more diplomatic, but I must confess that it does capture the gist of my views:
Proponents of this movement — dubbed empirical legal studies — view it as a major trend in legal academia. Harnessing data to answer legal questions gives their work credibility, and empirical research tends to reach a wider audience than traditional legal scholarship, they say. ...
"One of the concerns I have is on the pedagogical side," said University of Chicago Law School professor Brian Leiter. "There are some very smart and talented people doing this, but what does it add in the classroom, and how does it help teach analytical reasoning?"
A damned fine question.
The University of California at Los Angeles School of Law, Washington University in St. Louis School of Law, the University of California, Berkeley School of Law and Northwestern University School of Law are among the institutions that have established centers for empirical legal studies.
Yeah. This article's not going to win me any friends at the office.
Stephen Bainbridge disdains the trend. "A lot of the people I see who are empiricists, often with doctorates in the social sciences, aren't very good lawyers," he said. "I've read numerous papers that just got the law wrong. The problem is that we're hiring people with Ph.D.s in other fields, but their law credentials are middling at best. Someone who is a brilliant economist wants to be in a economics department, so we get second-rate lawyers who are second-rate in their academic field." ...
Empirical scholars have been knocked for conducting research simply because a data set is available, not because they have an important subject to explore. "They can only answer questions when they can get numbers," Bainbridge said. "If they can't count something, it doesn't exist for their purposes." ...
Several empirical scholars said that some doctrinal scholars simply don't understand their work. Bainbridge insisted that the skepticism is justified. "I think ELS is pretty much getting a free ride," he said. "There are a lot of people who have decided, for whatever reason, that this is the coming thing. We need to have a much more vigorous debate about the place of empirical legal studies in the legal academy."
Update: A friend and colleague emailed me as follows:
In the most recent postings to PB, I noticed, you slam ELS but elsewhere you propound:
"During the first half of the last decade, evidence accumulated that the U.S. capital markets were becoming less competitive relative to their major competitors. The evidence reviewed herein confirms that it was not corporate governance as such that was the problem, but rather corporate governance regulation. In particular, attention focused on such issues as the massive growth in corporate and securities litigation risk and the increasing complexity and cost of the U.S. regulatory scheme." Emphasis supplied.
Is the principle that it's good for lawyer-scholars to be consumers of empirical studies but that they should not be producers? That is not illogical or even entirely implausible, but neither is it self-evident.
To be sure, we may (I await evidence) give too much weight to PhDs in the hiring process (and I have long pointed out that we tend to get the second-rate PhDs). But some of our colleagues who are adept at legal analysis and do not have PhDs are doing some good empirical work. Maybe we need some empirical study of the performance of legal scholars who do empirical work.
I have no objection to legal scholarship that relies on real social science being done by real social scientists. Having said that, I'm always skeptical of data mining and causation issues. See, e.g., this "study":
Here's a deeply strange 2010 study in which college undergrads were asked to imagine a female instructor with various tattoos:
"128 undergraduates' perceptions of tattoos on a model described as a college instructor were assessed. They viewed one of four photographs of a tattooed or nontattooed female model. Students rated her on nine teaching-related characteristics. Analyses indicated that the presence of tattoos was associated with some positive changes in ratings: students' motivation, being imaginative about assignments, and how likely students were to recommend her as an instructor."
So tattooed teachers make students more motivated and more creative, not to mention stand a better chance of getting a positive recommendation from her pupils?
What I object to is (1) pseudo-social science being done by legal academics untrained in the relevant discipline, (2) hiring people to teach law with because they ran enough linear regressions to get to the point of being ABD in some social science but not to the point of actually being able to get hired in their home discipline, and/or (3) hiring people who are really good at their home social discipline but have mediocre legal credentials/skills. Both of the latter categories tend to produce lousy legal scholarship and make awful classroom teachers.