Four Reasons Empiricism Won’t Fade Away This Time

Although no one has “talked me down” from my bull market hypothesis about the historic trends in empirical movements in law, I believe that this third period of interest will be far larger and more enduring than either of the previous two even if the economy takes a very long time to recover from its current malaise.  My arguments in no particular order include the following: Phd-ification of the professoriate; the coming of empirical lawyering; business law; and multiculturalism.

At the outset, I should emphasize that I mean empirical legal studies in a far broader sense than is meant by the journal or the association that bears those names, and includes not only the qualitative social science types that are still feeling marginalized in those venues, but also scholarship influenced by the humanities and cultural studies.  In short, empirical on my account is not a question simply of methods but of the location of legal knowledge outside the boundaries of formal law and its institutional practices.

Phd-ification
Readers of this blog with long memories will recall that I’m not a proponent of making the Phd an entry requirement for law teaching.  One of the things that makes contemporary law schools so interesting in my view is that the standards for what counts as a legal scholar have never been more heterogeneous.  However, there are innumerable good reasons why a Phd provides advantages to people seeking law school teaching jobs and their numbers have been growing steadily for several decades.  What is essential is not that these Phd-eed scholars will define non-empirical work as outside the canon, but that their intellectual interests and sensibilities create an enduring base for empirical scholarship inside the legal academy.  In contrast, the Realists lacked not only Phd’s (as did many of their social science colleagues) but that they lacked any real training or skill in social science (or the humanities for that matter).  The “law and society” scholars of the 1960s, did have Phd’s (in many cases) and solid social science tool kits, but they were largely based outside of law schools and only penetrated in a few distinct schools (Wisconsin, Berkeley, Buffalo, Denver, Miami, perhaps a few others).

Empirical Lawyering
As I argued in a UC Davis Law Review article on the 40th anniversary of Katz v. United States last year, for the first time we are approaching a time when empirical skills and knowledge are sufficiently available to lawyers themselves that the business of law outside the law schools is becoming strikingly more empirical.  The Warren Court’s doctrines invited all kinds of empirical lawyering, but the supply side was not there.  Today it is (beginning) to be.

Business
Both the Realists and the Law & Society movement had a decidedly left and social justice orientation.  This was scholarship and advocacy with a mission to improve law’s relevance to the poor, the marginalized, and those generally who find themselves “against” the law in all too many circumstances.  Today, there is little doubt that the center of gravity in empirical law is coming to be the business curriculum.  While it is easy to drop or marginalize social justice scholarship and pedagogy (especially during economic downturns), the same is not true at all for the business curriculum.

Multiculturalism
Throughout the 20th century, law became steadily more doctrinally porous to consideration of social circumstances and contexts (think of the steady march of “manslaughter” doctrine from its common law set of fixed forms of mitigated killing to a generalized consideration of emotional disturbance).  This could be done with little actual presentation of empirical evidence about those circumstances through the sleight of hand worked by the magical word “reasonable.”  So long as judges could get away with consulting their own lived experience to decide what was “reasonable” (an empirical study with an “n” of 1), there was no real opening for empirical advocacy.  This magic trick was supported by the continued cultural hierarchy that place white Protestants from northern European backgrounds at the top of virtually all social and economic ladders in America (as true in the 1960s as it had been in the 1920s).  As the multicultural make-up of the US (and other peer societies) becomes undeniable and irreversible, tolerance for allowing judges to use their own cultural assumptions as a knowledge base about social context is collapsing.  The well-equipped lawyer of the near future will need not simply to be able to consult social science but to bring a sociological imagination to their lawyering (whether litigation or transactional).