Brian Leiter’s recent thoughts about Empirical Legal Studies are worth reading. I can’t offer much perspective on ELS in the law schools, but as someone who came to graduate work in political science out of legal practice, I was utterly blindsided by its dominance in law-related scholarship in that discipline.
There is, of course, good work being done by good scholars in this area in and out of political science departments. But Leiter rightly raises the flag of “a self-reinforcing mutual-admiration society” in which method itself validates the quality and usefulness of scholarship.
I see three
problems with the flavor of ELS that originates in political science. First, as I noted
in an earlier post about political theory and law, the divide between normative
and empirical scholarship has splintered the discipline of political science in
unhelpful ways, and nowhere is this more apparent than in law-oriented
political science scholarship.
Second, I worry that some empirical political scientists have forgotten
(or never learned) a caution voiced by Catherine MacKinnon (among many others):
our method “organizes the apprehension of truth; it determines what counts as
evidence and defines what is taken as verification.” Finally, I wonder whether the extensive and rigorous
methodological training required by many political science graduate programs
comes at the cost of even a rudimentary understanding of legal reasoning and
last charge may be particularly bristling, let me offer a few examples from
published political science scholarship: (1) a study of federal death penalty appeals
that lumps together direct appeals and collateral habeas appeals without any
understanding of their differences; (2) a study of state supreme courts that
includes the D.C. Circuit in its data set on the assumption that the District
of Columbia in many ways “functions as a state”; (3) multiple studies of the
workloads of Supreme Court justices that fail to account for the role of their clerks.
These shortcomings are relatively straightforward and would be fairly easy to remedy. A
more difficult issue is the extent to which some political scientists fail to
appreciate legal reasoning. In a
recent essay in the Duke Law Journal titled “Are Empiricists Asking the Right Questions About Judicial
Decisionmaking?,” Jack Knight observes
that “in the last few years the overwhelming majority of empiricists have not
incorporated other elements of judicial reasoning and substantive argumentation
into their analyses in a systematic way.”
Engaging seriously with these elements of the law will require far
greater investment than learning factual and procedural aspects of legal
To reiterate, these critiques are not directed at all empirical political scientists. But they are worth noting, particularly given the current push toward ELS in law schools. They caution against a certain dogmatism that has captured segments of political science scholarship. That kind of dogmatism might facilitate tidy research questions, but those questions may be the wrong ones to be asking. As Jeff Powell notes in a comment on Knight’s essay: “the empiricists frequently appear to be battling a straw man who believes that law can be done by following rules that do not allow for discretion in their interpretation or application. I do not know anyone who thinks that.”