The Empirical Turn in Legal Education

Article excerpt

The turn to empirical methods in legal scholarship and teaching augurs an improvement in the way lawyers, judges, and legislators approach legal and policy questions.

A change is happening in America's law schools. In myriad ways, legal education and scholarship are increasingly adopting the perspectives and tools of the social sciences. Nowhere is this more apparent than in the rise of "empirical legal studies" (ELS) as a distinct subfield within the legal academy, a development with potentially profound implications both for legal education and, in the long term, for the legal system itself.

The signs of this change are manifold. Law schools are hiring Ph.D.s in the social sciences in ever-increasing numbers, and growing numbers of social science faculty are both teaching and holding joint appointments in law schools. Those scholars, often in collaboration with their more traditional colleagues, are conducting empirical research on legal matters, work that is appearing both in law reviews and in peer-reviewed outlets in the social sciences. The latter include a number of recently-founded entries specifically devoted to empirical legal scholarship, including the Journal of Empirical Legal Studies, which is managed by an interdisciplinary group headquartered at Cornell Law School. The Association of American Law Schools recently chose empirical scholarship as the organizing theme of its 2006 annual meeting. The ELS "movement" even has it own weblog (http://www.elsblog.org), where participants from a range of disciplines discuss topics of interest both to legal academics and social scientists studying law-related phenomena.

In some respects, these changes remind us of the old adage, "the more things change, the more they stay the same." The legal realists of the early 20th century embraced empirical work, as indeed did Brandeis in his famous brief in Muller v. Oregon. Similarly, the 1960s and 70s saw the rise of the law and society movement, with law and economics coming on the scene shortly thereafter. Both integrated empirical and more traditional legal methods in their scholarship.

The roots of the most recent turn toward empirical work are unclear. The growing importance, and disputable premises, of law and economics likely played a role, as arguments over the relative costs and benefits of legal and policy prescriptions necessarily call for empirical data to back them up. …