The Legal Process from a Behavioral Perspective

By Stuart S. Nagel | Go to book overview

CHAPTER 2
Methods for Testing Empirical Generalizations in Legal Research

Social scientists for many years have been testing empirical generalizations in their respective disciplines.1 Some of their techniques are beginning to trickle into the legal journals at an increasing rate.2 The legal research that has thus far used such techniques, however, has largely been done by social scientists rather than by legal scholars.3 It is the purpose of this chapter to describe briefly some of the techniques involved in systematically testing empirical generalizations, in the hope that increased understanding will stimulate more law school scholars to apply them.4

____________________

The writer gratefully thanks Jerry Bonham, Deno Curris, and the other members of his Public Law Seminar of Autumn 1962 for the constructive suggestions they made concerning this chapter.

1
The standard textbooks on general social science methodology include W. GOODE & P. HATT, METHODS IN SOCIAL RESEARCH ( 1952); C. SELLTIZet al., RESEARCH METHODS IN SOCIAL RELATIONS ( 1959); T. MCCORMICK & R. FRANCIS, METHODS OF RESEARCH IN THE BEHAVIORAL SCIENCES ( 1958); and G. LINDZEY (ed.), HANDBOOK OF SOCIAL PSYCHOLOGY259-561 ( 1954). These textbooks elaborate many of the points made in this paper.
2
See, e.g., Tanenhaus, "Supreme Court Attitudes toward Federal Administrative Agencies: Application of Social Science Methods to the Study of the Judicial Process", 14 VAND. L. REV.473 ( 1961); Zeisel, Kalven, & Bucholz, "Is the Trial Bar a Cause of Delay?", 43 J. AM. JUD. SOC'Y17 ( 1959); Ulmer, "An Empirical Analysis of Selected Aspects of Lawmaking of the United States Supreme Court", 8 J. PUB. L.414 ( 1959); Barton & Mendlovitz, "The Experience of Injustice as a Research Problem", 13. J. LEGAL ED.24 ( 1960); and Nagel, "Judicial Backgrounds and Criminal Cases", 53 J. CRIM. L., C. & P.S.333 ( 1962) (Chap. 18, infra).
3
See Jones, "Some Current Trends in Legal Research", 15 J. LEGAL ED.121 ( 1962).
4
For a defense of the desirability of applying the general scientific method to legal research (as contrasted to a clarification of some of the techniques involved) see Loevinger, "Jurimetrics: Science and Prediction in the Field of Law", 46 MINN. L. REV. 255 ( 1961); H. CAIRNS, THE THEORY OF LEGAL SCIENCE ( 1941); and Cohen, "Transcendental Nonsense and the Functional Approach", 35 COLUM. L. REV.809 ( 1935).

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