The purpose of this essay is to engage in a critical analysis of two articles that have implemented an empirical legal studies (ELS) methodology. However before the curtain rises on a detailed exploration of the two empirical analyses it is necessary to consider the rise of the modern lawyerly statistician as legal scholarship increasingly becomes “more scientific” (Ulen, 2004, pp.414).
i. Introduction to ELS.
'You can always count on Americans to do the right thing - after they've tried everything ELS.'
Indeed in recent years we have seen the birth of a new breed of legal-empiricists who have brought about radical and exciting changes to the wider academic firmament. Empirical techniques, traditionally the tools of the social scientist have been integrated into the classical trade of legal scholarship, so long dominated by abstraction as well as theoretical and doctrinal work. The orthodox methods of the legal academic or university beard are not questioned, merely updated. Traditional doctrinal jurists are of unrivalled importance; that is not questioned.
“The vitality of any discipline depends on the vigour of its community of scholars and their dedication to the advancement of knowledge through research” (Lohmann, 2005, pp.1). Their musings on case law, legislation and the state of the law shape the minds of judges, litigants, policymakers, government and broader society and for that we are grateful. However there is a feel that the esoteric world of legal doctrinalism has been altered for the better through its seizing of scientific methods. Harry T. Edwards (1992, pp.34) had deplored the trend of elite law schools in America and the prevailing emphasis on “abstract theory at the expense of practical scholarship and pedagogy”.
Whilst rumination and abstract legal theory still prevail, the lamentations of Judge Harry T. Edwards did not go on unanswered. Indeed the legal academy has extensively diversified its remit in recent years. Quite appropriately ‘legal scholars are great borrowers of scholarly methods, (they are) the mockingbirds of the academy’ (Hall and Wright, undated). Nonetheless traditional imagery of a dishevelled, bearded and abstruse armchair speculator taking shelter within his ivory tower of intellectual fortitude no longer seem so appropriate since science pierced the legal academy.
There is a rich corpus of literature that has documented the rise and importance of ELS to legal research since empiricism entered mainstream legal academia, (cf. Chambliss, 2008; Cownie, 2011; Feldman, 2009; Genn et al., 2006; Grechenig and Gelter, 2007; Heise, 2002; Herring, 2006; Hollander, 2007; Posner, 1999; Revesz, 2002; Schuck, 1989; Siems, 2008). Tracey E. George (2006, pp.141) applauded empirical legal scholarship as “the next big thing in legal intellectual thought” and likewise, John O. McGinnis (2006) exalted that “we are on the cusp of a golden age of social science empiricism.”
It has long since been the case that America sets the standards and global pulse to which others react and empirical legal studies continues that trend. Indeed American academics started the fashion of blending law and empiricism after having tried pretty much everything ELS in academia. Mark Suchman (2006) notes that the empirical legal studies movement truly kicked off in the US in the mid-1990s, for which the instigation of an ELS program at Harvard in 1996 and the launch of the Journal of Empirical Legal Studies through Cornell University are watershed moments.
This is reflective on the ground as Tracey E. George (2006, pp.142) notes that whilst doctrinal writings dominated and still do, empirical legal studies “recently and dramatically has expanded in law reviews, at conferences, and amongst law faculties.”Moreover citation analyst Robert C. Ellickson (2000, pp.523) remarked that “legal scholars have been abandoning doctrinal analysis in order to engage in various sorts of “law and” endeavours.”
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