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Tuesday, February 03, 2009

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.

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.

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.

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).

Posted by Jonathan Simon on February 3, 2009 at 04:48 AM in Legal Theory, Life of Law Schools | Permalink


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I'm not sure I can respond fully to Patrick's detailed and persuasive critique (at least in my presently jet lagged state as I write from Nottingham England). I would like to pick up on one strand however. There are clear powerful benefits to narrowing the field and excluding those who either do not count or are not critical or reflexive enough. The rise of distinct organizations like Empirical Legal Studies and Law, Culture and Humanities reflects the attractions of paradigm concentration and barrier setting. But if I strive for an more ecumenical approach I hope it reflects not fear of conflict, but a conviction that these forms of knowledge speak to each other and to the largely normative tasks of law and lawyering in our present. ELS may have certain scientism, just as Realism did, but both also share a pragmatist strain that is especially likely to flourish in the non-disciplinary garden of academic law. It would take more coherence than I presently have about me to articulate precisely why, but I believe there convergence in the specificity with which both the new quantitative methods, and the new forms of cultural studies, seek to interpret the effects of law.

Posted by: Jonathan Simon | Feb 3, 2009 7:00:52 PM


I wonder if your stipulative definition of "empiricism" is perhaps, in the end, unhelpful, if only because it appears reducible to a "persuasive" definition, namely, one "designed to influence the manner in which a phenomenon is perceived," hence, it inclines the reader, in this case, to take a "favorable" disposition toward social science scholarship in general (which I'm not necessarily opposed to). In other words, your definition of what counts as "empiricism" is simply far too broad (to wit: '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'), particularly if one thinks of how "empiricism" has traditionally been defined by way of an historical and philosophical contrast to "rationalism' (and we need not see this contrast as hard and fast to appreciate the significance of the distinction).

I think it would be more helpful were we to discuss the criteria that enable us to assess what counts as "social science" and the extent to which the social sciences are indeed "sciences" on the order of the natural sciences or perhaps altogether something different. For example, "soft" social science along the lines of works that fall under the heading of postmodernism, postcolonial theory, deconstructionism, Lacanian psychoanalysis, and the like often have, in Elster's words, "more in common with certain forms of literary criticism (or with literature) than with empirical qualitative investigations." Does it help, nevertheless, to christen these as instances of "empiricism," which they would be under your construal of same? On the other hand, many of those who, for better and worse, or rightly or wrongly, fancy themselves as doing "hard" science, that is, chock full of empirical investigations and the right sorts of data for analysis, strive hard to distance themselves from what others have called "qualitative" social science. Now even when such work of the latter sort displays what Elster calls "utter authority in factual matters," it does not count thereby as "empirical" according to the judgment of those wedded to the model of "hard" social science (which itself is not always even appropriately described as 'empirical' in orientation).

It strikes me therefore as commonplace to observe that those doing legal studies, legal theory or philosophy of law, and of course what you term "empirical lawyering," will bring to their enterprise methods and models "outside the boundaries of formal law and its institutional practices," if only for the sorts of reasons that account for the rise of "legal realism" in the first place, or more "instrumentalist" (cf. Tamanaha) approaches to the law in general.

When folks hear the word "empirical" in this context they often call to mind "quantitative social science," of which, again following Elster, there are three principal varieties: measurement, data analysis (i.e., statistical analysis), and modeling. Such social science is often oversold if only because it trades too heavily on the mantle and mitre of science as such (i.e., the epistemic authority of tne natural sciences). Elster discusses many of the neglected problems of such science. To take just one example (and we could cite works by Deirdre McCloskey, Philip Mirowski, S.M. Amadae, among others in support), Elster avers, "An interesting question in the psychology and sociology of science is how many *secret practitioners* there are of economic science fiction--hiding either from themselves or from others the fact that this is indeed what they are practicing." Here, what counts for epistemic rigor or robustness has to do with "numbers" or mathematics, specifically, "ingenious mathematical models" that have little or no anchor in everyday "reality" and thus are utterly irrelevant with respect to social policy, a research strategy with well-established pedigree (cf. several books by McCloskey, critiques by Nicholas Rescher in his works on epistemology and objectivity, as well as Theodore M. Porter's Trust in Numbers: The Pursuit of Objectivity in Science and Public Life, 1995). Elster is thus even-handed when it comes to calling out both the "obscurantists" of "soft" and "hard" social science alike.

In short, let's change the framework of the discussion by asking questions related to the epistemic authority and scientific quality of the various forms of investigative inquiry you've lumped (unjustifiably in my opinion) under the heading of "the empirical." In answering such questions, some forms of inquiry I suspect will fare far better than others and thus we can help steer this and the next generation of students and scholars toward more meaningful if not fruitful fields of inquiry and academic pursuit. Another way to put this point I suppose would be to say that one reason "no one has 'talked [you] down' from [your] bull market hypothesis about the historic trends in empirical movements in law," is that you've been far too generous to all the relevant or interested parties! We're left without any reason to be (more) critical of the motley approaches being brought to the study and practice of law.

Toward the goal of a more reflective and critical approach to the various methods and models of the social sciences that aims at the very least to chasten those eager not only to cite social science literature in their academic work and lawyering but bring a "sociological imagination" to bear as well, permit me (as is my custom) to proffer a few authors and books (these authors raise different and sometimes contrary points and problems):

Recent works (off the top of my head and in no particular order) by Amartya Sen, G.E.R. Lloyd, Nicholas Rescher, Ian Shapiro, Ian Hacking, Charles Taylor, John Dupre, Karsten Stueber, and Daniel Hutto, as well as

*Elster, Jon. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (2007)
*Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy (2nd. ed., 2005)
*Kincaid, Harold. Philosophical Foundations of the Social Sciences: Analyzing Controversies in Social Research (1996)
*Miller, Richard W. Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences (1987)
*Ziman, John. Real Science: What it is, what it means (2000).

Posted by: Patrick S. O'Donnell | Feb 3, 2009 10:20:00 AM

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