Answering Questions, Questioning Answers, and the Roles of Empiricism in the Law of Democracy

Article excerpt

INTRODUCTION
I.  ONE PERSON, ONE VOTE, RACIAL VOTE DILUTION, AND EMPIRICAL
    ANSWERS TO JUDICIAL QUESTIONS
II. CAMPAIGN FINANCE, POLITICAL CORRUPTION, AND EMPIRICAL QUESTIONS
    TO JUDICIAL ANSWERS
CONCLUSION

INTRODUCTION

The law of democracy is a field in which line-drawing is often really important. Sometimes, the lines are literal ones, as with redistricting. (1) Sometimes, the lines are theoretical or doctrinal, as with the much-maligned contribution/expenditure distinction in campaign finance law. (2) So there's something striking about the fact that the field also blurs many lines that often seem impermeable-between legal scholars and social scientists, between the academy and practice, between doctrine and empiricism, between normative and descriptive. "Always it is by bridges that we live," the poet Philip Larkin wrote, (3) and those of us who toil in this particular corner of public law cross those bridges every day.

Those bridges are longstanding. (4) Among other precincts, they connect practice and the academy. For example, the National Science Foundation funded a leading empirical study of the effects of the Voting Rights Act that contains a series of state-level studies written jointly by the lawyers who litigated many of the most significant cases and a range of social scientists--among them historians, political scientists, and sociologists--many of whom participated in those cases as expert witnesses. (5) And despite charges that the gap between the academy and the profession has grown so deep that courts no longer read what professors write, (6) that accusation is untrue with respect to the law of democracy. (7)

These connections present an opportunity to reflect on a choice between two very different understandings of what it means to do empirical work. In recent years, some law professors have equated empirical scholarship with statistical analysis. (8) A large number of the papers presented at the Seventh Annual Conference on Empirical Legal Studies (CELS) fit this definition. The two papers to which I refer later in this Essay do too, (9) although neither is a large-scale study: they each focus primarily on what happened in a single round of elections. But there is an alternative, more capacious definition of empirical work, interestingly enough offered by two scholars whose own work largely fits within the narrower frame. Lee Epstein and Gary King see empirical scholarship as work concerned with "evidence about the world based on observation or experience." (10) In their view, "[t]hat evidence can be numerical (quantitative) or nonnumerical (qualitative); neither is any more 'empirical' than the other." (11)

Is there a kind of empirical approach that law or legal training itself offers? Oliver Wendell Holmes famously wrote that "[t]he life of the law has not been logic: it has been experience." (12) A central contribution that lawyers, both within and outside the academy, have brought to scholarship on the law of democracy has been precisely their professional experience and a qualitative sensibility derived from that experience--what Karl Llewellyn long ago called "situation sense." (13) Scholars who litigated the doctrine in their cases and worked with social scientists as experts have then written about the doctrine, the evidence, and the theoretical issues that the doctrine and the evidence raise. The law of democracy has been genuinely interdisciplinary for my entire career, and one of the broader lessons we might draw from that history is that law is a distinct discipline with its own contributions to make. It would be a pity if legal scholarship, like much of contemporary political science, were to adopt the view that the only questions worth asking, and the only answers worth giving, are quantitative or based on models so highly stylized that they omit the messy but important lessons of experience.

Bruce Cain, one of the Framers of the field, long ago observed that "the mix of theory to empiricism varies in different types of election law cases as a consequence of the specific constitutional and statutory framework in which the case is embedded. …