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Tuesday, December 20, 2016

IRB-based Legal Research - the barriers

Thanks to Christine's thoughtful comment to my post about confidential academic informants, I was wondering what the barriers are to more IRB-approved legal research. It seems to me that there are 2 big ones: (1) the lack of methodological training for the vast bulk of legal scholars with regard to human subject research, and (2) the tenure review process.  They both are certainly barriers to my own pursuit of such research, maybe especially the second one. As long as the tenure review process gives the same credit for law review articles that involve reading court opinions and other law review articles as it does for empirical legal research involving human subject observations and interviews and coding and interpreting data and everything else that goes along with IRB-approved research, there is a strongly reduced incentive for pre-tenure legal scholars to branch out into empirical legal research (which  may be for the best, if no empirical work is better than deeply flawed empirical work).

Any other thoughts on why so few legal scholars pursue IRB-approved research?

Training wise, there are resources: there is an annual Conference on Empirical Legal Studies, and an annual Conducting Empirical Legal Workshop at WashU (which didn't happen last year?). For those who might be looking to make the plunge into empirical legal research, what other resources can you recommend?

Posted by Kevin Lapp on December 20, 2016 at 04:53 PM | Permalink


Great thoughts - ZS's comment makes me think that some of the sorting that leads to few legal scholars doing human subject IBR-approved research happens at the hiring stage. Since there is little of it done by current faculty, few candidates whose research history and agendas involve such work make it through to tenure-track positions on law faculties.

That said, I hope in the future to have the time and freedom to do some qualitative research on juvenile courts. And when I head head out to find a co-author who has experience in the field, I'll be looking right at you, Christine.

Posted by: Kevin Lapp | Dec 21, 2016 12:35:54 PM

Also, ZS - I am lucky enough to be in a department that values the interdisciplinary work that I do but I think that I had a harder time getting a teaching job because of this. Social science depts. didn't like that I usually published in law reviews rather than social science journals but most law schools thought that my work wasn't doctrinal enough...

Posted by: Christine | Dec 21, 2016 9:35:13 AM

It is certainly true that empirical studies take longer and thus are probably more work. However, if you set them up well, you can get more than one article out of them, so I think it is worth the effort. And I think they are so much more fun to research and write!

In terms of the methods questions, the conferences and workshops you describe generally equate empirical work with quantitative work. The papers presented there and the articles published in the Journal of Empirical Legal Studies tend to be quantitative/statistical, because that seems to be what many legal academics consider empirical. Interestingly those studies may not need IRB approval if they are based on secondary data, which is often the case.

Qualitative research involving court observations, interviews, case file reviews, ethnographies, etc. can be just as useful, and in my opinion, often more useful, but of course these studies are more time consuming! Also, law review editors don't always know what to do with these studies because they don't see them as often. In terms of training, I have attended roundtables on qualitative methods issues at the Law & Society Association annual meetings but they aren't too common. One of the things that legal academics are really good at is workshopping ideas and papers; maybe a first step would be (if you aren't at a stand alone law school) to invite some qualitative folks from sociology, criminal justice, political science etc. to discuss/present the kind of research they do and talk through some of the methodological issues, recommend books, etc.; you could also invite representatives from the University's IRB.

Posted by: Christine | Dec 21, 2016 9:34:43 AM

To your list, I'd add a lack of understanding, appreciation, and respect for co-authored work. While those workshops may be enlightening, would a non-JD attending a workshop on the law meet our standards for doing legal analysis? One way to bridge the lack of methodological training is by co-authoring with someone who is appropriately trained. Together, the work is stronger and broader. But, if credit is compromised during the tenure review process ....

Posted by: Darrell Jackson | Dec 21, 2016 9:14:19 AM

I conducted an IRB-approved study (I was teaching in an interdisciplinary program at a 4 yr state school at the time) and received feedback from law reviews that it was "too sociological."
My feedback from non-law colleagues about my work that just involves reading things is terrible, though. They don't think I'm doing real work. I have strong beliefs that I failed to get a job because of their bias against pure legal work.

Posted by: ZS | Dec 21, 2016 2:06:06 AM

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