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Thursday, January 15, 2009

Empirical Legal Bulls?

I've been thinking recently about the parallels between the three periods in which empirical research on law and legal institutions seemed to reach particular peaks: the mid '20s, the mid '60s and the period that began in the late  1990s and may have ended now.  Surely somebody has noted that these were all periods of bull markets on Wall Street (my obsession with the election meant I read few legal blogs in 2008 so help me with links).

The relationship may be spurious but it has a certain logic.  At least compared to library research, empirical research is expensive.  Bull markets mean that institutions that live on endowments, like foundations and universities, have lots of money to invest in academic research.

The 1920s are particularly clear in this regard.  As Jack Schlegel shows in his great book on American Legal Realism and Empirical Social Science, the realists were enabled by intensive competition among elite law schools and universities, and the ability of foundations to at least consider contributions that are huge by contemporary standards. For example, the Johns Hopkins University brief experiment with a non-law school research institute in legal studies, was pitched to the Rockefeller Foundation with a request for an endowment grant of 5 million in 1928 (roughly 60 million in 2007 dollar).  The Foundation balked but expressed a willingness to spend 1.5 (about 24 million).  Law schools were flush as well.  Cycling between Yale and Columbia, several realists found their salaries rising to the then stratospheric salaries of 10, 12 or even 15 thousand dollars a year (122 to 182 thousand a year in 2007 dollars).

From the mid-1950s through the mid-1960s, several foundations, including Ford and Russell Sage, pumped millions into major universities like Berkeley, Northwestern, and Harvard to launch law and society centers and programs.  Law schools and other university units, were once again bidding up the salaries of empirically oriented scholars, intensified by the massive expansion of higher education in those years.  While not as bouyant as the 1920s, this  period was also one of strong performances on Wall Street,

Our own recent period of intense interest in empirical scholars and scholarship has also gone along with a roaring Bull market (this one apparently every bit as volatile as the 1920s).  New innovative programs (like Hopkins in the 20s, or JSP in the '70s) are being launched and salaries have been bid up.  Does Black September 2008 signal an end to all that?

Not so quick.  First, it was more than Bull markets that fueled empirical peaks.  These were also periods characterized by the emergence of new industries and markets that produced new demands for governance (and new questions about the adequacy of laws), social movements producing new demands for legal reform, and relatively activist administrations in Washington (Hoover in the 20s, Kennedy and Johnson in the 60's, Clinton and Bush in the 1990s and 00's),  These factors may drive growth even after the bulls stop running on Wall street.  In the 1930s, many of the empiricists drifted out of the academy to participate in the New Deal, and Obama's New New Deal may be just in time for such a transfer.

But two reasons lead me to believe this current empirical wave will be more enduring.  First, the cost of empirical research is expensive but much less than was true in the '20s, when computers did not exist, or in the 1960's, when they were hugely expensive to access.  Second, unlike the previous periods when law schools opened up to empirical work, this wave has been generated largely internally by the emerging scholarly norms of the professoriate itself (rather than ambitions of foundation or university visionaries to change the faculty).  

Posted by Jonathan Simon on January 15, 2009 at 11:15 AM in Life of Law Schools | Permalink


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» The Fact Versus Intuition Pendulum and Whether Empirical Legal Studies Has "Legs" from Legal Profession Blog
Posted by Jeff Lipshaw There's some navel-gazing out there about whether empirical legal studies as a discipline has, as they say in showbiz, legs. Jonathan Simon started this at PrawfsBlawg with a speculation whether there's a relationship between bul... [Read More]

Tracked on Jan 16, 2009 8:53:16 AM


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Fascinating observations. I wonder if an expansion in empirical studies has to do with something that correlates with bull markets: optimism that there can be scientific solutions to our nation's problems (or maybe something even more basic, like optimism that we can improve)?

I don't think empirical work is just about money. Take WEB DuBois' work, which was done in the 1910s with very little funding (though I suppose you could say it was inspired in part by the culture of empiricism of the period 1900-1920, which was likely fostered by well-endowed universities).

Posted by: Alfred | Jan 15, 2009 11:32:25 AM

It would be interesting to look further into what, if any, success DuBois had in seeking foundation or university support for his research. One theory, already suggested above, is that new industries/new markets, like the automobile and radio in the 20s, create both large new profits (therefor the bull market) but also real or perceived challenges to the social order and the capacity of legal institutions. Another theory (really just rank speculation), which you might have some insight into, links legal realism with lynching. The connection is this, one of the background "problems" that seems to animate legal realism is the perception that local courts were chaotic and ineffective. Some of the studies done on Connecticut courts disappointed by finding relatively efficient process (largely through plea bargaining). What I wonder is whether talk about court chaos and legal failure due to inefficiency was a genteel way to talk about southern lynching which was ongoing and becoming a bigger national scandal in the 20s.

Posted by: Jonathan Simon | Jan 15, 2009 2:42:14 PM


More rank speculation and foolish historical analogizing, but note that both the 20s and 30s and the 50s and 60s also saw the rise of emergent political and social scientific movements that were incorporated within the legal academy, each of which related to larger ideological shifts: the Progressivism of the post-WWI and New Deal era, and the emergent Cold War liberalism and quantitative social sciences of the post-WWII era. As those methodologies and ideological movements waned, so did the interest among legal academics.

I can't help but see the empirical bull market in its relationship to the waning of the critical/ qualitative sociology and theory of CLS and the left legal sociologists, and allied with the current triumph of economics (of the quantitative variety) as a wanna-be master discipline. (This assumes that you share my view that the current empirical boom is largely quantitative in orientation, but I think that's uncontroversial.) Although I agree that the influx of PhDs in the legal academy marks this era as different from earlier ones, my sloppy speculation and analogizing still suggests a degree of historical contingency in the waxing and waning of legal academic orientations (or, if you will, fashion) -- which, while it might not predict a complete waning of the current popularity (of certain) empirical work, it does suggest that in the long run there may be a regression to a mean.

Posted by: Mark Fenster | Jan 15, 2009 11:32:28 PM

You are right about the social movement embedded in the academy being critical to the legal realists and the mid '60s law and society moment. Its less clear what that "movement" is today (perhaps neo-Progressivism, as there are a lot ways that the current "empirical legal studies" movement resembles the realists).

I think the qualitative versus quantitative is a more complicated story. The current empirical legal studies movement does seem very quantitative (although there was a lot of quantitative work done in both the previous moments as well). Part of it may be economic. Some forms of quantitative research have gotten very inexpensive. Back in the '60s, sociologists had to compete with physicists for minutes on the mainframe. Today, with cheap statistical software and digitally ready data available to most university students and faculty, cranking out a few regressions can be amazingly inexpensive in time and money (in contrast the realists had to hire full time social scientists to calculate frequency tables. Of course producing original data for quantitative analysis remains incredibly expensive.

Call me Panglossian, but I think this period of empiricism (if it lasts) will see a movement toward collaboration between quantitative and qualitative researchers. It is very difficult to test theories with qualitative data, but it is very difficult to generate them with quantitative data; sequencing them (as my colleague Catherine Albiston has been doing in her research on Family and Medical Leave Act implementation) can be very productive. At Berkeley we have been investing in a combination of both quantitative and qualitative empirical scholars. We have also been committed, ever since the founding of the JSP program 30 years ago, to investing in humanities. Indeed, as the "subject" of legal research becomes more focused on the subjectivity of legal actors, as in behavioral economics, the humanities may be critical. This is quite a contrast with the 1980s and early 1990s, when I was a graduate student and starting professor. In that era of retrenchment for empirical legal scholarship, there was a culture war feeling between quantitative and qualitative scholars, the kind of "ghetto fight" that shrinking resources and horizons gives rise to (see Gaza). If the current empirical legal bull market is over, we may be in for a return to that (I hope not).

Posted by: Jonathan Simon | Jan 16, 2009 9:47:29 AM

My comment on this very interesting topic over at Legal Profession Blog.

Posted by: Jeff Lipshaw | Jan 16, 2009 1:11:56 PM

There has been alot of discussion of the rise and fall of "big law." Consider a model where there are three types of institutions. (1) A Set of ELS adopters (2) A Set of ELS Adopters who realign internal financial incentives so encourage outside funding (nsf, nas, etc.) (3) A Set Institutions who maintain the Status Quo

Assume an institution adopts one of the above strategies at t=0 and then tick the model forward for a number of time steps:

Start with the T14
(a) Lets consider the T14 Historically Elite Institutions whose reputations are essentially fixed. Assume the T14 components are fixed but among the T14 there exist conditions under which their order might be reshuffled.

(b) The Non T14 -T100
Assume the T14 components are fixed but among the non T14 there exist conditions under which their order might be reshuffled.

Returning the Strategy 1 -- Professor Fenster could be correct there might just be a regression to the mean. It is hard to say. My money is still on the folks who can differentiate X^2

Returning the Strategy 3--Query as to how the legal academy can continue to reward data free speculation when nearly every other unit at there respective institutions (other than those who have taken the post modern turn) has gone the way of empirics, models, etc. It is certainly possible an institution can just live off tuition/endowments, etc. Perhaps these institutions might be engaging in search (i.e. pursuing the next big thing but I doubt it)

NOW Consider Strategy 2--- This is where Professor Simon and not Professor Fenster has the the better of the argument. Some institutions are going to get hip to the game and compete head to head with other academic departments for resources from the NSF, private foundations, etc. For a model on a small scale, see CERL at Wash U.

Imagine CERL on a large scale, where those PhD's who find themselves in the legal academy were held to the standards closer to that which would be imposed in their original academic department. While I am not asserting folks would or should be responsible to live off the land (see e.g. hard sciences, public health, med school) the ability to generate alternative streams of revenue. First mover advantage / sensitivity to initial conditions/choices may follow.

Time will only tell.

Posted by: someoneonthesidelines | Jan 17, 2009 11:37:31 AM

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