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Epstein, L; King, G --- "Building an Infrastructure for Empirical Research in Law" [2004] LegEdDig 26; (2004) 12(4) Legal Education Digest 14

Building an Infrastructure for Empirical Research in Law

L Epstein & G King

[2004] LegEdDig 26; (2004) 12(4) Legal Education Digest 14

53 J Legal Educ 3, 2003, pp 311–320

In every discipline in which ‘empirical research’ has become commonplace, scholars have formed a sub-field devoted to solving the methodological problems unique to that discipline’s data and theoretical questions. In an earlier article the authors had argued for the creation of an analogous methodological sub-field devoted to legal scholarship. They had two other objectives: (1) to adapt the rules of inference used in the natural and social sciences, applying equally to quantitative and qualitative research, to the special needs, theories and data in legal scholarship; and (2) to offer recommendations on how the infrastructure of teaching and research at law schools might be reorganised so that it could better support the creation of first-rate quantitative and qualitative empirical research without compromising other important objectives.

The authors highlight the four sets of pertinent proposals, namely those geared toward (1) law school students, (2) law school faculty, as well as those that may be of interest to the entire legal community, (3) law reviews, and (4) data archiving and documentation.

The first recommendation is that law schools incorporate into their curriculum at least one course in empirical research — a course that covers quantitative and qualitative approaches to research design and evaluation. Whether law schools should make this part of the first-year curriculum or reserve it for second and third-year students depends on the particular school’s needs and goals. This recommendation is made, not because all students will necessarily be conducting empirical research of their own, but they will need the skills to evaluate such research, whether for clients, senior members of their law firms or judges. Training students in the standards and norms of empirical research has at least two by-products: (1) with these skills they will be more marketable than those without them; and (2) faculty will benefit enormously because there will be a need to hire a scholar trained in empirical methodology who can serve as a faculty resource.

When it comes to their research, legal scholars seem to have developed a norm of timeliness — a norm that is useful, because scientifically valid input into current debates about public policy can make highly important and dramatically influential contributions. Legal academics will require additional training to implement the rules of inference and to master skills associated with the analysis of data — whether of the qualitative or the quantitative variety.

Three ways of proceeding for individual faculty are suggested: (1) they can take an empirical research course; (2) they can get training at various institutes, which are geared specifically to law teachers; and (3) a law teacher can learn on the job by entering into collaborations with a methodologist in the law school or, for example, a social scientist colleague with an interest in law.

Scholars can conduct serious empirical research no matter how limited the time or resources. But if both time and resources are tightly constrained, they will pay a price in the form of less certain findings. There are four ways in which law schools can help to save time by improving resources: (1) they can ensure that faculty conducting empirical research have computers and software up to the task, along with the technical support they need to use those resources; (2) they can help their faculty make the best use of their time by providing additional person power in the form of research assistants, who will enable scholars to collect data as quickly and efficiently as possible; (3) they should encourage their faculty to enter into collaborations with scholars who know how to conduct serious empirical research; and (4) they should provide seed funding to credible projects. Such funding would enable scholars to conduct pilot studies in order to inform public policy debates or to demonstrate the worthiness of their research to outside funding agencies.

Another suggestion is an alternative model of scholarly journal management — one that enables law schools to continue the existing norm, while enhancing it by taking advantage of some features of the peer-review system. Students would continue to serve, as they do now, as law review editors and members. As they receive manuscripts, students — like university press editors — can reject manuscripts for whatever reasons they think valid, just as they do now. After receiving the external evaluation, students would be free to reject the manuscript.

Whatever the exact procedure, the point is that the law review would publish only articles that have been reviewed by at least one external expert and have been approved by the editorial board. The editorial board would serve as a check on the student law review editor, but in the vast majority of cases expectations would be clear enough that the editorial board would support the law review editor’s decision.

One of the strongest norms in legal publishing is the norm of textual documentation: law review editors and authors are, to a greater extent than most others in academia, obsessed with footnotes. Given the importance of this norm of documentation to the legal community, it is surprising that violations are rampant when it comes to non-textual sources of information — most relevant here, quantitative or qualitative data analysed in empirical research. We recommend that law reviews, at a minimum, require documentation of empirical data with as much specificity as they do for textual documentation. Just as for textual documentation, this should be a prerequisite for publication. This means simply making it possible for any reader to traverse the chain of empirical evidence amassed to support the conclusions published.

Many public archives exist, but a healthy procedure would be for law reviews, individually or collectively, to establish their own data archives, so that they could keep empirical evidence and satisfy the norms of the legal profession. With respect to legal scholars themselves, only those who comply with this rule ought to receive credit for it. Legal academics should list the data sets they have made publicly available on their CVs, just as they now list published articles. Hiring, tenure and promotion committees need to recognise the contribution that publicly available data make to the scholarly community.

The authors realise that following these recommendations will confront law schools and their faculties with a host of challenges. Meeting them should not be too difficult. After all, the interest in empirical research and the norms supporting documentation are in place. It is now a matter of making productive use of them.


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