Academic journal article
By Westbrook, Jay Lawrence
Texas Law Review , Vol. 80, No. 7
Ever since the Realist movement captured American law schools, empirical research has been the senior scholar of the legal academy, revered but rarely seen in the building.1 Reverence notwithstanding, the ghost of Underhill Moore lingers always in the background,2 supported by a steady stream of criticism cheerfully, almost indulgently, dismissing empiricism as a napkin ring on the academic table, attractive but hardly useful.3
This Article has two purposes. As the title suggests, the first is to discuss the present state of empirical research in the field of consumer bankruptcy and the road ahead. The second is to generalize a bit from that
field to the prospects for the use of empirical data in law generally, a topic addressed specifically in Part VI.
Bankruptcy is a field in which there has been a relatively substantial amount of empirical work, especially in the last twenty years.5 Although this Article will discuss only a small fraction of the useful empirical work that has been done in consumer bankruptcy,6 there have been a number of studies, many of them done at a highly professional level. Because important facts about bankruptcy are discoverable in court files, the field lends itself to certain kinds of empirical investigation more readily than some other aspects of the law. Today there are a fair number of young bankruptcy scholars genuinely interested in doing empirical work.7 And just coming on line are technological changes that promise to open a dazzling future in which the cost of empirical research in time and money may be dramatically reduced.8
On the other hand, empiricism in consumer bankruptcy faces some serious obstacles. Beneath the discoverable facts about the phenomenon lie facts that are difficult or impossible to ascertain empirically, although they are important to the policy debates. Many of the scholars interested in doing empirical work do not have access to the training or the resources that would permit them to do it. And the activity in the field has stimulated critiques suggesting that empirical data have little effect on policy decisions and, in principle, are relatively unimportant in academic debates.9
This Article discusses these mixed prospects and suggests a way forward. I am not entitled to set a research agenda, but I think it may be useful to begin a discussion of what such an agenda might look like and to address the opportunities and difficulties that lie ahead. It is also useful to think about what might be done cooperatively or collectively to improve the prospects. Although many of these points apply equally to empiricism in the
study of business bankruptcy, this discussion is limited to the consumer side for simplicity and clarity, especially for those more interested in its general implications for empirical research in law.
Before turning to that discussion, I want to both highlight and distinguish one important new approach to empirical research in consumer bankruptcy. Consumer Bankruptcy Project III, led by Professor Elizabeth Warren, represents a different concept of bankruptcy research.10 The idea is to use bankruptcy as a sort of pathology laboratory for data and insights about other social issues.11 Its subjects include housing and medical care, among others.12 While this project will yield useful data about consumer bankruptcy as such, its focus is on these other issues. I will therefore put it to one side for the purposes of this Article, although all of us will follow the emergence of this new approach with considerable interest.
II. The Rationale for Empirical Research
Most legal scholarship is oriented to policy questions. Even those who write "theory" articles usually assert that some change in the law should result from their ratiocinations, even if they may later retreat to a claim that they have merely presented an interesting idea. …