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Can Empiricism Go to Law School?

By Jim Chen et al.

Most readers know the cautionary "Be careful what you wish for . . . ." There is a comparable concern for those doing empirical research -- you may not find what you are looking for. By "what you are looking for" I do no mean that you will find no answer but that you may not confirm what you hoped to confirm. For example, you might believe that positive student evaluations are correlated with actual learning and find that they are not. Or, that the amount of discipline meted out to high school students is unrelated to the number of white high school administrators.

If you are a true scholar/empiricist you may shrug and then report your findings. A cultural clash occurs, howevever, when empiricism meets legal scholarship. Most legal "scholarship" as I have written before, is not scholarship at all. It is, instead,"service" to one particular end or another with that end usually ultimately being tied to a political goal. Thus, as they were trained to do in law school, legal scholars start with a "client" ( a political inclination) and set out to muster whatever they can to show that their client is "true."

So what happens when an empiricist comes along. The answer is, it depends. Let's take two empiricists both of whom have done a pretty shotty job. The have interpreted data to mean certain things when they have no way of knowing and they do not acknowledge the problems. They take a small sample, they make no effort to verify whether a survey they use actually measures what they purport that it measures. So, two empiricist, equally sloppy.

What it depends on is not the care that went into the study but what the study discovered. Let's say the first study shows a high correlation between the amount of punishment meted out to high school minoriities and whether the principal is white. The other study shows that there is no correlation between punishment and race. Given the policital state legal education today, the first study will be deemed "interesting," and "persuavise." People are likely to ignore any methodological problems or explain why they are not the author's fault. Chances are the second study will get exactly the opposite treatment. It will be viewed as "sloppy." "poorly conceived" and amateurish. There may be whispers about racism because the author allowed the result to become public. If it is a job talk, scholar one has a job scholar; two is, as they say on Project Runway, "out."

Maybe you think this is not so bad. At least one of the sloppy scholars did not get away with it. The problem is this, you could change the hypothetical so that the second scholar had done a spendid, air tight, objective, totally verifiable, triple-checked study and come out with the same results. In the eyes of most law professors there would still be problems. For some reason, the study cannot be right because . . . . well ultimately because it did not produce the right outcome. Consequently the careful, honest and skilled researcher is also "out."

What does this mean for empirical research and law schools. The first reaction has been to resist empirical research in part, I think, for two reasons: law professors are threatened by what they do not know and law professors were concerned about what the numbers would show. Now, I think the future is "brighter." Well maybe not brighter but different. Law professors are likely to embrace empirical efforts as long as the results are the "right" ones and some empirical work will be valued.

Full post as published by MoneyLaw on November 24, 2010 (boomark / email).