empirical research in law

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39 Empirical Research in Law

John Baldwin is Professor of Judicial Administration in the Law School, University of Birmingham, and has been Director of the Institute of Judicial Administration since 1982. In the past thirty years, he has conducted a great number of empirical research projects, concerned in particular with the administration of justice, both criminal and civil. His latest book is Small Claims in County Courts in England and Wales: The Bargain Basement of Civil Justice? (Clarendon Press, 1997).

Gwynn Davis is Emeritus Professor and Senior Research Fellow attached to the Department of Law, University of Bristol. Over the past twenty-five years he has conducted over forty empirical research projects in the fields of family law and practice, criminal justice, and developments in the legal profession. He is the author of Partisans and Mediators (Clarendon Press, 1988) and, most recently, Child Support in Action (with Nick Wikeley and Richard Young, Hart, 1998).

Published: 18 September 2012
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This article considers the contribution to legal scholarship which has been and is being made by research strategies which fall under the broad heading of ‘empirical’. Empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. It is not a synonym for ‘statistical’ or ‘factual’, and its intellectual depth and significance are not determined by the empirical label but can only be judged by reference to the same standards and the same yardsticks as would be applied to any other academic endeavour.

1 Introduction

I n this chapter we consider the contribution to legal scholarship which has been and is being made by research strategies which fall under the broad heading of ‘empirical’. Empirical research may be defined by reference to what it is not, as well as to what it is. It is not purely theoretical or doctrinal; it does not rest on an analysis of statute and decided cases; and it does not rely on secondary sources. What empiricists do, in one way or another, is to study the operations and the effects of the law. This leaves a great many decisions still to be taken. The focus of attention may be upon professional actors or it may be upon consumers; it may be upon the practice of law or upon measures of outcome; it may be upon legal processes which are in any event highly visible, even iconic, or it may be upon aspects of the law which normally remain subterranean; and finally it may involve collecting data on large numbers of cases, each subject to a predetermined scheme of categorization and reporting, or it may involve the painstaking examination of a relatively few interactions. All we can say, therefore, is that empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. It is not a synonym for ‘statistical’ or ‘factual’, and its intellectual depth and significance are not determined by the empirical label but can only be judged by reference to the same standards and the same yardsticks as would be applied to any other academic endeavour.

There is one distinctive feature of the empirical research enterprise to which we should draw attention at the outset. This is that empirical research in law is not the preserve of the academic lawyer alone, but has attracted scholars from across the social sciences, especially sociologists, economists, and psychologists. This is desirable in principle since the workings of law and legal institutions have such profound social, economic, and political consequences that they ought not to be treated as the monopoly interest of lawyers. In keeping with this, we find that even long-established principles governing the analysis of legal reasoning have been subject to challenge by ‘realist’ scholars (Twining, 1973 ). However, it is principally through empirical study of the practice of law (especially of the preliminary and apparently more mundane aspects), and in studying the way legal processes and decisions impact upon the citizen, that the disciplines of sociology and, to a lesser degree, philosophy, psychology, and economics have entered into and enriched the study of law. This multidisciplinary research has, in turn, influenced many aspects of legal practice, albeit the insights gained may be conveyed imperfectly and in such a manner as barely to do justice to the complexity of the originating ideas. Even the rules and procedures of the law, which can seem arcane and specialist, reflect this influence.

Whilst ‘black letter’ legal scholars engage in painstaking analysis of decisions taken in the courts, especially at appellate level, other social science disciplines have contributed to a widespread recognition that the study of what law does can be as stimulating and intellectually challenging as the study of what the law says , and furthermore that traditional legal scholarship should not be regarded as a separate world but is itself enriched through a fuller understanding of law in its social context. So it is that many distinguished legal scholars, whilst they may not conduct empirical research themselves, engage with the evidence contributed by empiricists as to how law works and how it affects people's lives. Their definition of the scope of their subject now includes these elements.

2 Burgeoning Activity

In the period since World War II growing numbers of academic lawyers and social scientists have become interested in applying empirical research methods to the study of legal processes. It is possible to trace the origins of the empirical approach to a much earlier time, for example, to the work of Quetelet and Guerry in Continental Europe in the early nineteenth century (see Radzinowicz, 1966 : 29–42), but it was not until the advent of the so-called ‘realist’ school of jurisprudence in the middle of the last century that empirical enquiry became an accepted basis for legal analysis. Realist scholars maintained that judicial decisions were influenced by a host of personal and social factors, and that they ought therefore to be analysed not only with reference to statute, precedent, and established legal principle, but also with reference to judges' social backgrounds and political beliefs. Research on the politics of the judiciary conducted in the UK by Griffith ( 1997 ) and Robertson ( 1998 ), and in the United States by writers such as Levin ( 1977 ) and Estreicher and Sexton ( 1986 ), indicates that this tradition is still very much alive. The questions posed by these researchers, and their starting assumptions, have in turn influenced the work of other legal scholars who are not themselves inclined to pursue empirical strategies, thereby contributing to a reorientation in legal thinking and helping to change the nature of legal scholarship.

These developments have not, however, been uniform, either geographically or substantively. Despite the altered profile of legal research in the common law world following the widespread adoption of an empirical approach, there are some law schools—and some disciplines—within which empirical study continues to be regarded as a peripheral and perhaps even a downmarket interest, and certainly the dominant ethos remains doctrinal. However, virtually all law schools contain at least a smattering of empiricists, and some legal disciplines have been transformed through their influence. These include, most obviously, criminal law and criminal justice, family law, and parts of regulatory or ‘public’ law. There is also a burgeoning interest in empirical study of developments within the legal profession.

One factor not intrinsic to the subject itself which has stimulated the empirical approach within law schools has been the income which universities have been able to secure by this means. In the UK all universities have been driven to seek funds beyond their core government grant. Empirical research in, for example, criminal justice has proved attractive to potential sponsors—including government departments—and universities have found it in their interests to sustain empirical researchers who are capable of generating this income. Also, as external audit and monitoring of academic activities have become increasingly prominent in the drive to make these institutions more publicly accountable, the capacity to undertake large-scale empirical research has come to be regarded as one of the hallmarks of a diverse and academically vibrant law school. Similar processes occur in the United States, where the expenditures of public universities may be reviewed by state legislatures, and national grant agencies may require universities to account for their spending. This external auditing, coupled with pressures to extend universities' funding base, has contributed to a situation where empirical research is now central to the life of many law departments—something that would have been unthinkable a few decades ago.

These developments have gone hand in hand with the recruitment of non-lawyers into law schools, and also with collaboration across disciplinary and institutional boundaries. Indeed, it is striking how many prominent empirical researchers in law have a background in other disciplines. Some took their first degree in the humanities, but most were trained in one or other of the social sciences. It is probably fair to say that there has not been a coherent intellectual vision underlying this recruitment and collaboration. It has tended, rather, to be haphazard and serendipitous, reflecting perhaps the fact that scholars happened to be working in the same institution, or a chance convergence of interests. Many non-lawyers working in law schools were recruited in the first instance as contract researchers, employed on projects devised by academic lawyers. Sometimes the process of recruitment has worked the other way, with lawyers being approached by colleagues in the social sciences who were intent on examining some aspects of the legal process and who recognized the need for legal expertise on their research team.

Some of the non-lawyers recruited in this way have a firm grounding in the core discipline of sociology; others have some training in the methods of empirical investigation; but it is a very mixed picture, and many empirical research projects in law, even those with nominal ‘social scientists’ on board, cannot lay claim to intellectual roots located in another discipline. They may be referred to as ‘interdisciplinary’ but reflect only the most basic sociological precepts—for example, that rules do not necessarily determine behaviour, or that the conduct of actors and institutions cannot be understood simply by reference to their officially declared purposes.

So intellectual depth and coherence may sometimes be lacking, but over a period many of these non-lawyers have established a foothold in law schools, following which they have expanded the scope of their activities. For example, some now contribute as teachers of ‘fringe’ legal subjects—for example, criminology, sociology of law, socio-legal studies—which grew in popularity in the 1970s and 1980s as a means of extending a narrowly based law curriculum. Meanwhile, perhaps influenced by this cross-fertilization, some academic lawyers have themselves become interested in the study of legal processes, including the behaviour of professional actors, the strategies of bargaining and negotiation, and the degree to which legal endowments determine formal outcome. The sociological underpinning may be rudimentary, but some of these untutored investigators have proved themselves to be talented, intuitive commentators upon a world which they have chosen to view not as professional insiders but with an outsider's critical eye and an enthusiasm for the great themes exemplified in the practice of law.

This burgeoning interest in the study of legal processes has contributed to the creation of a number of research institutes dedicated to the empirical study of law and legal institutions. Whilst many of these centres are generalist in character, in which case the generic label ‘socio-legal’ may be applied to them, others are more specialist, devoted, for example, to the study of criminal justice, penology, judicial administration, civil justice, or family law. Some of these research centres are long-established, being supported by grants from charitable trusts or foundations, or by government departments; others lead a more precarious existence, being dependent upon their own host institution for financial support. Whilst only a minority of the academic researchers who engage in empirical research in law are employed within these centres, they are none the less important, both practically and symbolically, as demonstrating an institutional commitment to this kind of research and in raising its profile.

Similar observations might be made in relation to the publication of the results of empirical research. In some fields of law it is empirical researchers, rather than doctrinal scholars, who are cited most frequently in the legal literature. Some of the most venerable and prestigious legal journals have proved ready recipients of material with an empirical content. In addition, journals with a distinctly ‘socio-legal’ orientation (e.g. Law and Society Review and Journal of Law and Society ) have flourished in this period and provide an invaluable outlet for socio-legal scholarship, including the empirical. Finally, some mainstream legal publishers have committed themselves to producing substantial monographs which present the fruits of empirical enquiry on a range of legal topics, and we have even seen the advent of distinctively ‘socio-legal’ publishers (for example, Sage Publications and Hart Publishing), much of whose output has an empirical component.

3 Why is Empiricism Found in Some Fields of Law but Not Others?

Whilst some areas of law have been transformed by the empirical approach, others (such as contract) have remained largely untouched by it. It is important to ask why this is, and to consider the implications for legal scholarship generally. One possible starting-point is the observation that empirical strategies reflect the influence of non-lawyers, and it is probably the case that some legal subjects are more accessible to the non-lawyer, and hold greater intuitive appeal, than do others. The technical intricacies of the law relating to trusts or contract, for example, inevitably act as a deterrent to anyone outside the narrow band of legal scholars who have mastered the complexities of the subject. Criminal law is also complex, but it is not ‘law’ as such that has attracted the interest of criminologists and other criminal justice scholars. The focus of attention has tended to be upon legal institutions—for example, the police and prosecuting authorities—rather than upon legal doctrine, and some sociologists have contributed ground-breaking studies of these institutions which in turn have deepened our understanding of legal phenomena (see e.g. Reiner, 1992 ; Rock, 1993 ).

Accessibility to non-lawyers is important because the empirical approach is only likely to appeal, and to seem relevant, when law is conceived as an instrument of social policy, and this is not the way in which doctrinal lawyers are taught to approach their subject. The legal scholar who operates in the common law tradition is primarily interested not in the social policy of the law, or the translation of that policy into effective practice, but rather in the coherence and logic of legal argument applied to a given set of facts. Admittedly, most legal scholars in common law countries would say that their work is informed to some degree by the social sciences, and by theoretical or policy-orientated writing. However, that does not mean that they themselves engage in empirical research, or even that they consume the fruits of others' investigations. Criminal justice and, to a lesser extent, the tort system are perhaps the two areas in which there has been the most effective cross-over—see, for example, the work of Dewees et al . (1996) ; the series of surveys conducted in the 1970s for the Pearson Commission (Royal Commission, 1978 ), and by the Oxford Centre for Socio-Legal Studies; Genn's work on tort settlements (1987); and research sponsored by the Rand Corporation in the US (Hensler et al ., 2000 ).

Despite this important work, there lies buried deep within the traditions of the common law an alternative view of the legal enterprise, one in which ‘policy’ emerges through the application of legal precedent. This is not to say that the academic lawyer is uninterested in broader themes, or in empirical investigation as a means of exploring those themes, but such exploration will tend to be regarded as a parallel activity, one that is undertaken by scholars from other disciplines. In fact, there are many fields of law in which academic lawyers tend not to conduct empirical research, but where their approach is none the less socio-legal in the sense that they draw upon a parallel literature which addresses many of the same issues, but from a sociological or economic perspective. Company law provides one example. This is a field in which there are strong interdisciplinary links and in which the fruits of empirical research are routinely employed by academic lawyers to enrich their view of the subject. There is, for example, a substantial empirical literature on the economic effects of takeovers. However, this empirical investigation tends not to be something that company lawyers carry forward themselves; nor is it defined as falling within the ‘law’ component of the subject.

There are other fields however—and criminal justice is the most obvious example—in which there is no separation of the legal and social policy dimensions and therefore no gulf to bridge. This is partly because the legal dimension is reasonably accessible to the non-lawyer, and partly because lawyers working in these areas tend themselves to be enthused by issues of policy and practice. So it is that in criminal justice (and to a lesser extent in tort, public and family law) academic lawyers have tended to address many of the same issues as social scientists and they have a literature which is at the very least overlapping. They also tend to regard empirical investigation as an essential tool, and one that confers academic prestige and other benefits upon its most skilled and inventive practitioners.

4 Main Questions and Preoccupations

To say that empirical researchers are interested in issues of social policy which are reflected in the law, and in the implementation of that policy through legal practice, leaves much still to be explained about the nature of empirical work. One possible starting-point is with the observation that empiricists aim to describe the legal world as it is, not as it is meant to be, with many studies emphasizing the disparity between textbook depictions of legal and judicial processes and their everyday reality. It was Roscoe Pound in the early years of the last century who first drew the distinction between ‘law in the books’ and ‘law in action’, the essential point being that the study of statute and decided cases is not sufficient as a means of discovering how legal institutions and legal practitioners conduct themselves (Pound, 1910 ). Many aspects of legal process are characterized by the exercise of discretion, and by the development of working practices which do not figure in any account of legal rules. The settlement culture which pervades the civil courts, and plea bargaining within criminal justice, are two examples of this.

This ‘gap’ between legal texts and the day-to-day reality of legal practice has become a preoccupation of the empirical researcher. Studies have been conducted which demonstrate, for example, that the way in which police officers arrive at arrest and detention decisions is often at odds with legal rules; that decision-making in the courtroom reflects the attitudes and prejudices of the judge who hears the case as well as the clinical application of the law; and that the way in which lawyers dispose of their cases frequently departs from legally prescribed procedures. The 1960s, in particular, witnessed a considerable reorientation of criminal justice research, with studies such as those conducted by Piliavin and Briar ( 1964 ), Skolnick ( 1966 ), and Blumberg ( 1967 ) focusing on decision-making at different stages of the justice process. These studies revealed that police officers' arrest decisions reflected their assessments of the character and demeanour of the individuals concerned; that informal interactions between defence and prosecution lawyers were commonly at odds with legally prescribed procedures; and that courtroom decisions reflected, at least in part, the personal attributes of the judge. A typical observation was that of Piliavin and Briar ( 1964 : 214), who concluded that ‘[t]he official delinquent, as distinguished from the juvenile who simply commits a delinquent act, is the product of a social judgment … he is a delinquent because someone in authority has defined him as one, often on the basis of the public face he has presented to officials rather than of the kind of offence he has committed’. These studies represent landmarks in the empirical investigation of legal procedures, and some indication of the scale of the endeavour is provided by the criminal justice bibliography compiled by Radzinowicz and Hood in 1976 which gives 10,000 references to criminal justice research and runs to 400 pages. As those of us embarking on research careers in this period appreciate, this literature had a profound impact, serving to inspire empirical researchers throughout the common law world.

One abiding characteristic of this research was its critical edge, with the authors generally taking a negative view of legal actors' casual approach to rule observance. The disparity between law in the books and law in action was most evident in relation to pre-trial criminal procedures, with legal practitioners being seen to concentrate their energies on avoiding trial rather than preparing for it. The US literature on plea bargaining, focusing upon the inducements offered to criminal defendants to forgo their right to jury trial, would itself fill several shelves in any law library, with most of this work being critical in tone.

As far as civil justice is concerned, empirical research has developed more slowly, but it has still proved influential in certain areas, with US scholars again leading the way. These civil justice studies have been concerned with matters such as case settlement procedures (Rosenberg, 1964 ); access to justice (Cappelletti and Garth, 1978 ); small claims adjudication (Yngvesson and Hennessey, 1975 ); and developments in the legal profession (Abel, 1989 ). As with criminal justice research, many of these authors have highlighted the disparity between formal rules and textbook accounts of process and procedures on the one hand and the reality of legal practice on the other.

The now commonplace observation that the standard means of disposal of both criminal and civil cases is through informal out-of-court negotiation and settlement is derived principally from this research. Although still not reflected in some textbooks, the literature on plea bargaining, and on the settlement of civil claims, has contributed greatly to what is now a general acceptance of the view that in order to understand the justice process it is necessary to observe it at every stage and not to focus exclusively on set-piece courtroom dramas. It is also vital to tap the experience of lay actors and not to view the operation of legal processes solely from the perspective of the powerful and the privileged.

This brings us to a second characteristic of empirical research, which is that it tends to give considerable prominence to the voice of the consumer of legal services. In the best work of this kind, the consumer (whether litigant, witness, victim, or defendant) is not regarded as the sole arbiter of the value and effectiveness of legal services, but the consumer perspective is seen as having its own validity, which means that it can be a useful corrective both to some rule-based accounts and to the voice of the professional practitioner. Some of the most influential research of this kind has achieved its impact precisely because it has demonstrated that the experience of those on the receiving end of legal processes was not understood or adequately represented by the legal practitioners whose job it was to safeguard their interests and who saw themselves as doing this in good faith (Baldwin and McConville, 1977 ; Felstiner et al ., 1981 ; Davis et al ., 1994 ). So the view that legal processes can only be described and evaluated by practitioners and professional commentators—or even that they are best evaluated by these professional insiders—is one that has been effectively challenged through empirical research.

A third feature of the empirical approach is that it tends to be focused upon lower level and preliminary legal processes. It is true that some empirical legal researchers have been concerned with decision-making at more rarified levels, but the main focus tends to be upon those parts of the legal process which are high volume, routine, largely hidden from public view, and which are dealt with cursorily if at all within legal texts. This focus upon routine decision-making is characteristic of empirical studies in both criminal and civil justice. So also is the preoccupation with the early stages of legal proceedings—the so-called ‘low visibility’ part—this being the point at which the future trajectory of both civil and criminal cases is often determined. Empirical researchers have examined, for example, how the police make decisions on the streets; the processes by which the police and prosecuting authorities decide whether an alleged offender should be prosecuted, and on what charge; the settlement strategies of civil and criminal litigators; the significance of procedure, including the part played by preliminary hearings in civil cases, and why these cases typically settle at a late stage. Other studies have examined the interactions between lawyers and their clients, and the impact of lawyers' work management strategies. None of these subjects is intrinsically more (or less) interesting than the preoccupations of the doctrinal legal scholar, but they reflect a view that the practice of law is an important subject for study in its own right, and that this practice needs to be observed in all its ‘minute particulars’ if it is to be accurately described and understood.

Low visibility is also a feature of the mechanisms intended to ensure that organizations comply with the regulations governing their practice, and these regulatory regimes have provided another target for empirical study. This work, which has been conducted in many parts of the common law world, has focused upon the role of inspectorates of various kinds and on the extent to which organizations comply with their own regulatory standards. The studies cover, for example, the work of factory inspectors (Baldwin, 1995 ), environmental health officers (Hutter, 1988 ), occupational health and safety officers (Gunningham and Johnstone, 1999 ), and business and financial services regulators (Grabosky and Braithwaite, 1986 ; Black, 1997 ). A unifying theme of this literature is the significance of negotiation in delivering compliance.

Another ‘driver’ of empirical research, prominent under the recent New Labour administrations in the UK, is the (laudable) impulse to monitor legal innovation by government and to evaluate its consequences. Monitoring and evaluating innovation have provided a great deal of work for the socio-legal community, which perhaps explains why it is seldom questioned, but we have certain reservations about it as the dominant empirical research model. The first arises from the fact that this research may be used essentially for presentational purposes. It is hard to imagine that the government department which commissions the research is seeking totally independent assessment and conclusions: to some degree at least the policy is already formed. The tensions around this issue are reflected in the tussles which occasionally occur between government departments and researchers over the right to publish (see below). A second reservation concerns the ‘reformist’ nature of evaluative research. Neither the practitioners who participate in the initiative nor the researchers who study it can claim that they are addressing the fundamental causes of social problems. As Pawson and Tilley put it: ‘Evaluations are … patently petty political’. In other words, government-sponsored initiatives treat certain social and political configurations as given, so that ‘the programmes which get evaluated are directed at reducing problems with systems, or ensuring the better operation of those systems’ (Pawson and Tilley, 1997 : 12). A third and final reservation concerns the short-term agenda that inevitably drives empirical research on this model. The agenda is that of the commissioning government department—which means the minister and his or her civil servants—and their thinking will tend to be dominated by immediate political considerations.

A distinctive form of evaluative research is that which sails under the ‘what works?’ banner. This question, which can of course be asked of almost anything, has come to function as a label applied to interventions which are geared to changing attitudes or behaviour. It tends to be asked especially of government-sponsored initiatives which, it is hoped, will have therapeutic effects—say, in diverting offenders from whatever patterns of behaviour (such as drug-taking) or whatever modes of thought (such as denying responsibility for their own actions) are deemed to underlie their offending behaviour. Research on this model is designed to test the cost-effectiveness of the intervention, for example, by examining changes in reconviction rates, or by interviewing the relevant population in order to gauge changes in behaviour and attitude.

Whilst each of the above is an immediately recognizable research stimulus, and between them they underpin much of the empirical research undertaken within law schools, it would be a mistake to imagine that empirical research necessarily falls into any one of these categories. Indeed, it is possible to conclude that the very best work transcends all of them, aiming as it does at a fundamental re-evaluation of the operation of a given area of law. In that sense it may not be designed to measure anything in particular, but rather to assist our understanding of the way law works, including the contribution it makes to addressing social problems and its impact upon the citizen. Accordingly, it will tend to explore many of the same themes as underpin the finest works of literature, or the great political debates. It may to some extent engage with the social policy agenda of the government of the day, but it will not be defined by it.

5 Research Methods

There are a host of different approaches to the task of gathering empirical research data, each reflecting different assumptions concerning what questions are worth asking, and what might constitute valid answers to those questions. Whilst the choice of research methods will reflect the researcher's views as to what knowledge is worth acquiring, those views will not necessarily be made explicit. Often they will be implicit in the choice of method and in the way in which evidence is presented. The natural scientist's preoccupation with rigorous scientific method is seldom paralleled in socio-legal research, most of which is conducted by academics who were not educated within that tradition and who, in any event, may doubt whether those techniques would serve their purpose. Thus, for example, the randomized controlled trial, which has long been the gold standard in medical research, hardly figures in research into legal processes. This is partly on ethical grounds, but also because empirical researchers in law are seldom concerned to explore the long-term impact of one specific intervention.

Much empirical legal research is descriptive in character, the aim being to examine the operation of legal processes and to demonstrate how these are perceived by all the parties concerned, perhaps especially by ‘consumers’ who do not normally have much opportunity to explain how the legal world feels to them. But empirical legal research is at least as much about providing explanations for social phenomena as it is descriptive. These explanations vary considerably in the level of sociological sophistication that is brought to bear, and readers may on occasion be tempted to ask whether the implicit value judgements which lie buried within them are ones which they would share. None the less, an explanation of sorts is being offered. Other empirical research is self-consciously evaluative, in which case there may be explicit design and delivery requirements which can be examined with a fair degree of objectivity.

As far as technical research skills are concerned, it is likely that few empirical legal researchers will have done more than dip into the various methodological texts that have been published in recent years. Research skills are picked up by observing more experienced colleagues, and there is nothing particularly complex or technical about the methods employed. This is not to say that these researchers lack skill, only that their skill does not lie in a mastery of research techniques. Essentially, it lies in their understanding of the fundamental purposes of the legal enterprise and their ability to deploy Wright Mills's ‘sociological imagination’ in order to re-describe and re-evaluate it. The creativity lies in marrying some aspects of the insider's legal knowledge with the sociologist's ability to discern the wider themes underlying the individual dramas of the law—or, in Wright Mills's terms, to discern the public issue within the private trouble (Wright Mills, 1959 ). The methods by which this is achieved—observing, interviewing, perusing documents—can have a somewhat homespun or improvised feel to them, but this is not necessarily a matter for regret, provided that the methods employed are appropriate as a means of exploring the issues which the researchers say they are trying to explore.

It is important, therefore, to recognize that empirical research in law is a creative process—as, probably, we would find is also true of research in the physical sciences, if only we understood it better. The difference is that one tends not to find within legal research any equivalent of the pure science model of hypothesis formulation, testing, and re-testing, leading to a finding which can then be further explored by means of other studies. Legal researchers seldom identify specific hypotheses which they mean to test, nor is there much enthusiasm for replicating earlier work. This is for three reasons: first, as we have said, most socio-legal research is essentially descriptive and explanatory, rather than evaluative; secondly, it is understood that the researcher's own value judgements lie buried within the research—so there is little enthusiasm for re-testing a ‘finding’ which everyone understands to be subjective to some degree; and thirdly, because much socio-legal scholarship tends to be focused upon process rather than outcome, it is only to a limited extent that its practitioners see themselves as building on earlier studies, thereby playing their part in a gradual accumulation of knowledge. The metaphor of ‘pushing back the frontiers’ tends to be employed only ironically within the socio-legal world. Rather, research is seen as a means of developing more satisfying descriptions and explanations of complex institutions and interactions—in which case it is not essential to replicate earlier methodologies, and indeed it can seem rather unexciting to do so.

5.1 Qualitative versus Quantitative Methods

The main distinction within empirical legal research is that between ‘qualitative’ and ‘quantitative’ approaches. The former involves an attempted in-depth exploration of legal processes, typically focusing on a modest number of interactions but viewing these from a variety of perspectives and perhaps over time. The strength of this approach lies in its capacity to reflect the complexity of legal processes, and the complexity of the relationship between process and outcome. It is also well suited to exploring the meaning which people place on legal events (Miles and Huberman, 1994 ). The research instruments (interview schedules, checklists, and so on) may be rudimentary, perhaps comprising no more than a few prompts for the observer, or reminders to the interviewer. This is a research style favoured by many experienced socio-legal researchers, including the authors, although it has to be accepted that the approach may raise questions as to the researchers' underlying attitudes and assumptions, and hence the validity and generalizability of their findings.

Qualitative research calls for fine judgement in deciding what significance to attach to elements of practice and to fleeting interactions within the individual dramas of the law, and this is a potential weakness as well as a strength. Qualitative researchers would claim that the accounts which they offer reflect the entirety of their research evidence, but this can never be proved given that it is not feasible to present more than snippets of that evidence, essentially for illustrative purposes in any published work. This is a research style in which the researchers first inform themselves and then seek to convey the fruits of that understanding to others. It follows that qualitative research, if it is to be of any value, cannot be conducted at second hand, for example, by a survey company; the aim is to improve understanding, not to gather evidence, and that improved understanding can only be achieved through immersion.

Quantitative approaches appear, at least on the face of it, to conform more closely to the pure scientific model. The objectives will usually be clearly identifiable within the research instruments. The study will be carried out on a large scale, possibly employing the services of a survey company such as the National Centre for Social Research, and the information recorded may allow complex statistical analysis. This approach has been adopted, for example, in the large-scale victimization studies that are now routinely conducted in very many countries in an effort to provide more reliable measures of crime than are to be found in official police records (e.g. van Dijk and Mayhew, 1997 ). So, provided the research questions can be answered by means of this kind of standardized interrogation, the social survey may, if well designed (i.e. with efficient sampling techniques and intelligible, discriminating questions), reveal much about the weight of experience and/or opinion within a given population. Another example of what can be achieved by this approach is the community survey designed to explore the extent of unmet legal need. A recent study of this type in the UK was the investigation conducted by Hazel Genn and the National Centre for Social Research into people's experience of ‘justiciable problems’ (Genn, 1999 ).

At the same time one should acknowledge the limitations of quantitative research methods, at least in respect of certain topics. First, such methods are not necessarily any more ‘objective’ than qualitative approaches in that the researcher's prior assumptions will, inevitably, be embedded in the design of questionnaires and other research instruments. Furthermore, there is no possibility of these biases being corrected as the research proceeds, as is at least possible when researchers are trying to educate themselves in the nuances of a subject. Secondly, surveys are only useful when they focus upon issues concerning which the informants have experience and can respond authoritatively. There is no point asking people about matters of which they have no direct experience and therefore nothing to offer beyond prejudice and received opinion. Yet that is sometimes done, and the resulting ‘findings’ reported as if they were of some value.

Increasingly, empirical legal researchers are employing a combination of qualitative and quantitative techniques, seeking to harness the strengths of both. For example, in-depth interviews may be conducted with comparatively few informants where there is need to explain the results of an earlier survey. Essentially, the data collection methods should reflect the focus of the research. A combination of qualitative and quantitative approaches may or may not offer greater ‘explanatory completeness’ (Pawson and Tilley, 1997 ). One instance where this was achieved was in a recent study of bail decisions and plea bargaining (Kellough and Wortley, 2002 ) which employed a variety of methods, including tracking some 1,800 criminal cases through the courts and, in methodological contrast, face-to-face interviews with a limited number of offenders. The various data sources allowed for statistical identification of the factors that influence bail decisions, but the study also gave insight into the various ways that remands in custody may affect plea decisions and the prosecution's decision to withdraw charges.

5.2 Research Access

One difficulty which characteristically faces the socio-legal researcher is that of securing access to data. Even if funding is secured, access may be denied, or permission to study an organization's work will be granted only on restrictive conditions. There are considerable differences between institutions in this respect, with some having proved more open to research than others. For example, the police have been quite receptive to external research over the years, even though some of that research has been highly critical of their practice, but the judiciary (especially at the most senior levels) have been less welcoming. It is important to recognize, therefore, that empirical research may be conducted in circumstances that are far from ideal. Legal researchers may find that it is not possible for them to examine certain subjects, or not in the way that they would wish. Studies of sensitive subjects will often proceed on the basis of second-best approaches. Other topics are ruled out altogether, the jury's deliberations being one obvious example.

There are two ways of viewing this admittedly frustrating state of affairs. The first is that powerful institutional forces are conspiring to thwart independent academic enquiry. The second is that some empirical researchers are liable to abuse the privilege of research access in order to attack groups or institutions which they have long viewed in a critical light. We think both explanations contain an element of truth. Some legal institutions are beleaguered and respond in a defensive manner; but also, empirical researchers may pursue an agenda which is not rooted in their data, or not in the data upon which they claim to rely, and this in turn may make it more difficult for other members of the academic community to secure the access they need. Researchers who are granted privileged access to confidential material bear a heavy responsibility—first, to respect that confidentiality, but secondly, just as important, to represent their evidence faithfully, in all its complexity. Equally, major legal institutions ought to accept, as most, including the police, seem to do, that they are publicly accountable. One aspect of that accountability lies in their opening themselves up to reputable academic study.

6 The Relationship to Theory

Few empirical researchers in law make any claim that their research is located within some overarching theoretical framework derived from one of the core social science disciplines. In most legal research monographs there is seldom more than a polite nod in the direction of those explanatory frameworks, and when that happens there all too often appears to be no meaningful connection between the theory and the empirical investigation. Of course, all research is influenced by ideas about how groups and institutions function, or about ways in which individuals react to certain life circumstances. However, it is not clear whether we should refer to this knowledge as ‘theory’ or whether we should regard it as part of the store of wisdom which (to some degree) we all acquire as we move through life. Perhaps we should allow that researchers draw on a mix of folk wisdom and academic insights.

Unfortunately, those academic insights may be as contentious as the folk wisdom, so it is helpful if academic researchers are clear about their own core beliefs, and if they are prepared to articulate these. As we have already observed, this seldom happens, and the reader is left attempting to fathom the researcher's ideological stance and starting assumptions. We each have our favoured explanations of motive and behaviour, and there is virtually no research in law which is uninfluenced by this tendency to favour some explanations over others, and to apply a normative colouring to whatever actions are being described.

These sympathies and antipathies, favoured explanations and discarded explanations, underpin all socio-legal writing. Commonly, they will be reflected in the researchers' choice of subject, and even more so in their choice of informants, although it is not unknown for researchers to rely upon interviews with one set of respondents in order to construct accounts which are critical of almost every aspect of that group's professional practice. We should concede that ‘bias’ is inevitable in the sense that the researcher will feel more sympathy towards some informants than others, and will favour some explanations over others. It is impossible to determine what would constitute a neutral stance when interviewing or observing a given group of actors—for example, court officials, legal practitioners, police officers, judges, divorcing parents, criminal defendants, prisoners, or civil litigants. The question—‘whose side are you on?’—is one that is inevitably raised (Becker, 1967 ). The lesson that we draw from this is that it is important for the empiricist to be enthusiastic about evidence, and to want to be surprised by that evidence in the interests of developing an account which offers fresh insight. So far as possible ‘theory’ should grow out of the research data; it should not be the other way around. If the story of the research does not emerge from the data, one may question the decision to undertake empirical research in the first place. The research becomes little more than a cosmetic exercise, designed to add weight to an already well-honed series of descriptions and explanations.

Having said that, describing the world ‘as it is’ is inevitably a problematic undertaking, and empirical researchers do not begin with a clean slate. They will have, from the outset, at least a rudimentary conceptual framework. This will include the main actors and activities to be examined, key relationships to be explored, and questions that they hope to answer. This early conceptualizing of the subject-matter is necessary in order to give clarity and focus, and also to avoid indiscriminate data collection (Miles and Huberman, 1994 ). This, however, is only the beginning of the interpretative task. The essence of the empirical approach lies not only in collecting relevant materials through the development of appropriate research techniques, but in making sense of that material as it is being collected. All interviews, all observations, and all documentary materials have to be given meaning by the researcher. It is only if empirical research is understood to be interpretative that it has some prospect of being anything other than ephemeral. If, on the other hand, empirical research is conceived as an attempt to keep pace with the latest changes in law and procedure in order to describe the impact of these changes, then it may be of some immediate interest to policy-makers and practitioners but that interest will not be sustained. This is because legal processes tend not to change very rapidly, and in many of their more fundamental aspects they hardly change at all. Accordingly, empirical research is devalued if it is regarded primarily as a means of monitoring and evaluating new initiatives. It ought to be seen, instead, as a means of exploring those aspects of law and legal practice which are enduring and which lie at the heart of the enterprise.

The following passage, taken from the final paragraph of a research monograph exploring one ‘hidden’ area of family law—the settlement of financial disputes by the parties' lawyers—is the kind of research output we have in mind:

For the foreseeable future some elements at least of these disputes will continue to be handled by lawyers. But the system was not designed to cope with the present volume of cases and, unsurprisingly, it has many weaknesses. We have identified, in particular: the very great premium which is placed on the energy and inventiveness of individual practitioners; the ponderousness of the process and the opportunity, if either party is so minded, to create delay at every stage; the failure, in many instances, to rectify the bargaining endowments conferred by an ability to conceal resources or to tolerate a postponed resolution; the way in which a settlement culture can override traditional legal values so that the negotiation process becomes no more than a search for compromise; the failure to distinguish between two distinct objectives—advancing the process and promoting settlement—so that these are conflated; and, finally, courts' reluctance or inability to enforce their own procedural orders. (Davis et al ., 1994 : 273)

This analysis is not located within some overarching sociological theory; but nor is it ephemeral. The researchers have drawn on the evidence of a large number of interactions in order to capture, as they see it, the fundamentals of legal practice in this area. It is questionable whether empiricism can deliver more than this. These authors might have attempted a different level of explanation, perhaps one that was rooted in an overarching theory of professionalism, but it would have been difficult for them in that case to assert that the explanation emerged from their data.

7 Influence upon Law and Social Policy

Given that empirical researchers are interested in the social policy of the law, an obvious question arises as to whether empirical research findings do indeed exert some influence, partly in relation to reform of the substantive law, but also in relation to practice and procedure. It has been claimed that the direction of family law, in particular, has been over-influenced by empirical research findings of dubious validity (Deech, 1984 ), and no doubt the same point could be made in relation to other areas of legal practice. However, the more generally accepted view appears to be that the relationship between research and policy, or research and law reform, is extremely tenuous (Thomas, 1985 ). This is despite the fact that much empirical research is, either directly or indirectly, state-funded, in which case it might be anticipated that researchers would wish to address issues that are of immediate concern to government, and furthermore that government would be interested in this research evidence and would use it to inform their policies in relation to legal and social issues. We suspect that both sides to this ‘contract’ would like to believe that this is what happens. On the government side, successive administrations of every hue have been heard to claim that their policies are ‘evidence-led’, whilst empirical researchers, for their part, like to feel that they are of some use, and that they exert influence. Many engage in the business of empirical research because they want to bring about social change.

We suspect that the limitations of the empirical approach lie at least as much with the paucity of imagination displayed by some researchers as they do with a slavish adherence to the government's agenda. The relationship between the government ‘customer’ and the empirical research ‘contractor’ has, over the past forty years, proved something of a disappointment to both. Social policy research has struggled to exert its influence alongside all the other forces bearing upon government, and researchers whose principal motivation has been to influence policy often feel, if not ignored, then manipulated and abused. This is despite the fact that it sometimes suits both sides to pretend that the research in question has made a difference.

Difficulties in the relationship between researchers and policy-makers are perhaps most apparent in disputes which centre on the publication of results. The problems can be acute when the research findings are embarrassing to the government or are believed to offer a distorted and misleading view of the activities of a particular organization. Hostility to publication plans is by no means uncommon, and both authors have experienced it on occasions. A challenge to research findings, whether in private or in public, is invariably an unpleasant experience for the researcher in question and can lead to severe personal and professional difficulties (Baldwin and McConville, 1977 ). When government, or government agencies, attempt to suppress publication of research findings, the academic community has an obligation to resist. This is why contractual arrangements entered into when research is commissioned need to be considered very carefully lest the right to publish be compromised. Government will often find it uncomfortable to allow publication, but that discomfort cannot be avoided. Of course, those who are on the receiving end of research, whether as subjects or as funders, have a right to see drafts prior to publication, and they may wish to comment in uncompromising terms or ultimately to distance themselves from the research findings as these are presented. But, if the integrity and independence of the researcher are to be maintained, that right must fall short of the power of veto.

Partly this problem reflects the way in which research is commissioned in the first place. Government is not always skilled in determining what it needs to know and what kind of research might fit the bill. In fact, research can be commissioned for a number of disreputable, as well as reputable reasons. The work of Thomas and Weiss suggests that research in law and the social sciences is employed for a number of purposes that cannot be openly acknowledged (Thomas, 1985 ; Weiss, 1978 ). These are some of the reasons suggested by Carol Weiss:

as political ammunition;

to delay action;

to avoid taking responsibility for a decision;

to win kudos for a successful innovation;

to discredit a disliked policy;

to maintain the prestige of a government department by supporting well-regarded researchers.

Experienced socio-legal researchers will recognize most of the above list, and they could probably add other equally disreputable items from their own experience. However, it seems to us inevitable that the relationship between research and policy will seldom be direct or straightforward. Government will always use research to serve political ends, and it will likewise do its best to ignore those findings which are politically inconvenient. We would prefer to emphasize independence rather than influence. The key for empirical researchers is to maintain their independence of government (and of any other research customers) in order fully to do justice to the research evidence.

This independence needs to be jealously guarded by the academic community, and for the most part we believe it is. Empirical research in law is often critical of existing policy and practice, and that is appropriate since the research ‘story’ ought to provide an alternative to the accounts which emerge from government or, indeed, from practitioners. Empirical research, in other words, has a debunking tendency. This, in turn, may bring it under attack (sometimes in private, less often in public) from members of the legal profession, the judiciary, or government representatives. This is what one comes to expect. There is inevitably some tension within these relationships, so it is important that those agencies which are liable to be criticized (or to be presented in a light not entirely consistent with the way they choose to present themselves) accept that this is a legitimate academic function and one that is, ultimately, in the public interest.

This brings us back to influence. Most empirical researchers of any experience appreciate that research findings which reinforce the prevailing thinking of the commissioning government department are more likely to be referred to, and therefore to appear to be influential, than are those which run counter to it. Where the research evidence points in an uncomfortable direction it is not difficult for policy-makers to ignore it.

To gain some impression of how limited the influence of researchers can be if their results do not suit the prevailing mood, and how easy it is for policy-makers to disregard their work if they are so minded, one need only consider what has happened in the criminal justice arena in the past twenty years. Punitive law and order policies have been adopted by many Western governments, notwithstanding the empirical research evidence that points to the dangers of such policies. The overwhelming weight of the research and writing produced by generations of criminologists, most of it funded by governments, points to the ineffectiveness of ‘crackdowns’ on crime, ‘wars’ on drugs, tough deterrent sentencing, and the like. Yet none of this evidence has succeeded in dissuading governments from following their own tough ‘law and order’ policies. The fact is that policies based on ‘commonsense’ solutions to crime problems (mandatory sentencing, deterrent sentencing for drug offenders, more liberal use of imprisonment, and so on) carry great electoral appeal, however much they may fly in the fact of empirical research findings. Garland observes that ‘Policy measures [in the United States and the UK] are constructed in ways that appear to value political advantage and public opinion over the views of experts and the evidence of research’ (2001: 13), and he offers a long list of contemporary penal policies (including ‘prison works’, ‘three-strikes-and-you're-out’, ‘no frills prisons’, and ‘zero-tolerance’) to illustrate the point. Nor have protests about these policies in criminological journals cut much ice with policy-makers. It is instructive in this context to consider the reaction of a UK government minister in the 1980s to a research finding that prosecutors at a certain court were sometimes able to secure the listing of a particular trial before a particular judge. He responded: ‘It does not happen, and if it does, it should not’. Another frequent response by policy-makers who wish to dismiss unpalatable research findings is to concede that the research may have been accurate at the time it was carried out, but to assert that practice has since changed in some fundamental way, so that the researchers' conclusions are no longer valid.

We regard this evidence of tension between government and members of the academic community as an inevitable consequence of the proximity of some research to the political process: researchers cannot control the reception of their work by policy-makers, and should not become too agitated if that reception is not as they would wish. Policies that carry electoral appeal, or which are congenial to ministers for ideological reasons, are routinely pursued in the face of contrary advice from academic experts who contend that the available evidence points in a different direction.

The conclusion that we draw from this is not necessarily dispiriting. It is inevitable that the development of social policy in contentious areas will reflect prejudice, gut instinct, and vested interests, as well as the accumulated wisdom of practitioners and researchers over many years. The fact that this research wisdom is ‘accumulated’, and not just the product of the latest monitoring exercise, is in our view a key feature. This is consistent with Weiss's ‘enlightenment’ or ‘knowledge creep’ theory, under which the most common mode of research use ‘is the diffuse and undirected infiltration of research ideas into [decision-makers'] understanding of the world’ (Weiss, 1978 ).

It is essential, therefore, to take a long-term view of the profound social issues which confront policy-makers in, for example, criminal justice and penology. We would prefer empirical researchers also to take this long-term view, in order to address the fundamentals of law and practice in these areas. Of course there are tensions here with the political imperatives with which ministers and civil servants must wrestle on a daily basis. But it would be deeply regrettable were empirical research in law to be conceived as a series of short-term evaluations. One has to hope that government will continue to sponsor research, whilst at the same time accepting that it is not well placed to determine what kinds of evidence will ultimately prove to be of greatest value. This calls for a continuing dialogue between researchers and policy-makers, and a constructive spirit on the part of both.

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We are indebted to Julie Vennard, Julian Rivers, and John Parkinson, each of whom made helpful suggestions from within their own fields of expertise, and to Anne Griffiths for secretarial support.

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Empirical Legal Research: Getting Started

Getting Started
Articles and Journals
Data Sets and Other Sources for Statistical Information
Other Resources

Research Guides

If you are not familiar with the topic, you may find that a research guide or tutorial is a useful tool to assist you with your research. We hope that you will find this guide helpful.

You should review the date the research guide was last updated. Using a research guides updated in the last year will help ensure you are relying on current information. However, if you are conducting historical research, an older guide may be helpful.

Some of the most popular guides include:

1) Georgetown Law Library, Statistics & Empirical Legal Studies Research Guide , (Updated June 2010)

2) Chicago-Kent School of Law, Empirical and Non-Legal Research Resources Guide , (Updated August 10, 2010)

3) While not specifically providing a research guide, the Empirical Research Support site of Goodson Law Library at Duke University provides links to training tools, data-sets, and other information to assist empirical legal researchers.

Current Awareness and News - Empirical Legal Studies Blog

The ELS (Empirical Legal Studies) Blog is one of the premier sources of news and comment about empirical legal research, publications and training. Below is a feed from the blog.

Empirical Research in Law, Empirical Legal Studies or Scholarship? Why is empirical research in the law important?

While there has been some debate regarding the proper name for and definition of empirical research in law, for purposes of introduction, this guide accepts the explanation put forth by John Baldwin and Gwynn Davis in Chapter 39 of the Oxford Handbook of Legal Studies:

"...empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. It is not a synonym for 'statistical' or 'factual', and its intellectual depth and significance are not determined by the empirical label ...

Pauline Kim, University of Washington School of Law, put it similarly:

Empirical legal scholarship involves methods developed in the social sciences and is different from traditional legal research in that it "systematically explores facts about the operation of the law and legal institutions."

Empirical research is important because "there are important questions in the law and about legal institutions that can’t be answered" through the traditional textual analysis methods of research. For example, if a researcher is interested in researching the impact of selecting a particular rule of law on the decision making of individuals and businesses. Textual analysis would not shed light on a topic. However, we can certainly understand how an argument for a judgment accepting a particular rule of law would be strengthened by including evidence on the likely effect on "actors in the real world."

Pauline Kim, Do We Have the Numbers? Empirical Research in Law – International Law as a Case Study, Program at the American Association of Law Libraries Annual Meeting (July 10, 2006)

Funding for Empirical Legal Research

Conducting empirical research often involves significant costs, including the costs associated with collection or accessing data. As a result, empirical researchers may need to seek funds from grants awarding organizations and other funding sources. Academic researchers may find the institutional Office of Research can provide assistance in locating information about grant awarding institutions as well as assistance in preparing grant proposals. If the services of a Research Office are not available, some of the resources below will assist the researcher in seeking funding.

American Bar Association Section of Litigation Research Fund The Litigation Research Fund was established by the section to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States. Projects addressing issues of low-income individuals' access to civil justice are of particular interest to the section and legal academics as well as social scientists and scholars from other disciplines are invited to apply for funding of their research.
Grants.gov All discretionary grants offered by federal grant-making agencies can be found on Grants.gov. Federal grant applications can also be submitted online via this site.

Subject Guide

Insitutional Review Boards

Empirical researchers are often required, before they begin the research, to obtain approval of the research from an Institutional Review Board (IRB). They may also be required to submit periodic progress reports to the IRB. Academic researchers may find that the Office of Research can provide useful information or guide the researcher through the IRB Process.

Code of Federal Regulations Title 45 Part 46 Address the Protection of Human Subjects and the Requirements for IRB Review.
OCU Office of Institutional Research and Assessment
University of Oklahoma Office of Research Services
Next: Books >>
Last Updated: Sep 24, 2020 2:41 PM
URL: https://libguides.okcu.edu/empiricallegalresearch

University of Virginia School of Law

Center for Empirical Studies in Law

Beyond the classroom.

Empirical assumptions are central to many legal debates and real-world issues brought before courts each year. The Center for Empirical Studies in Law fosters data-driven research that tests such assumptions and works to train the next generation of lawyers in empirical techniques that play an increasingly prominent role in litigation.

The center’s affiliated faculty — with doctorates in economics, finance, political science and psychology — demonstrate a broad array of expertise with empirical work in a variety of fields. Their research has made an impact on areas ranging from international comparative law to the use of social science in courts. The faculty also harnesses that research in their teaching, allowing students to understand the importance of data-driven analysis in their careers as lawyers, in policy, and in business and beyond.

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Economics as Context for Contract Law

This short essay conducts a review of Victor Goldberg's 2006 book entitled Framing Contract Law. Part I offers a basic overview of Goldberg's analysis...

The Public Network

This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. Concerns that private firms...

Cities, Economic Development, and the Free Trade Constitution

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized...

Innovation after the Revolution: Foreign Sovereign Bond Contracts Since 2003

For over a decade, contracts literature has focused on standardization. Scholars asked how terms become standard, and why they change so rarely...

A Convenient Untruth: Fact and Fantasy in the Doctrine of Odious Debts

The few years since the U.S. incursion into Iraq in 2003 have witnessed an explosion in the literature on odious debts - that is, debts incurred (a)...

Deferred Compensation Revisited

The tax rules governing deferred compensation, codified at section 409A, are harsh and complex. The rules are focused on the least important policy...

Was Heinz's Two-Step Redemption a Sham?

Heinz's wholly owned subsidiary purchased on the market over $131 million worth of Heinz's common shares. A few months later, the subsidiary sold 95%...

Contracts Without Law: Sovereign Versus Corporate Debt

Although extralegal enforcement is widely acknowledged, the conventional understanding of written contract provisions, such as the complex and...

Partially Odious Debts?

This article argues that the cost of odious debt ought to be borne by the party who is best positioned to prevent the accumulation of such debt...

The Market for Corporate Law

This paper develops a model of the competition among states in providing corporate law rules. Such competition is shown to produce optimal rules with...

Public Symbol in Private Contract: A Case Study

This article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets...

Reexamining Black & Decker’s Contingent Liability Tax Shelter

In this article, Professor Yale reviews the contingent liability tax shelter employed by Black & Decker, and critiques the arguments the government...

Signaling Social Responsibility: On the Law and Economics of Market Incentives for Corporate Environmental Performance

This article analyzes the law and economics of market internalization: the capability of markets to both penalize and reward firms for their...

Market Manipulation: A Comprehensive Study of Stock Pools

Using a hand collected new data set, this paper examines in detail a classic account of stock market manipulation - the stock pools of the 1920s...

The Value of Judicial Independence: Evidence from Eighteenth Century England

This paper assesses the impact of judicial independence on equity markets. North and Weingast (1989) argue that judicial independence and other...

Libertarian Paternalism Is an Oxymoron

This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this...

Empirically Assessing Hadley v. Baxendal

The rule of Hadley v. Baxendale enjoys an important place in the economic analysis of contract law. Over time, Hadley has taken on great significance...

The Economics of Limited Liability: An Empirical Study of New York Law Firms

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form...

General and Specific Legal Rules

Legal rules may be general (that is, applicable to a broad range of situations) or specific. Adopting a custom-tailored rule for a specific activity...

The Final INDOPCO Regulations

This report is a comprehensive explanation of the final INDOPCO regulations and corresponding changes to regulations under sections 167 and 446. The...

Economic Organization in the Construction Industry: A Case Study of Collaborative Production Under High Uncertainty

A central question of law and economics is how complex productive activity is initiated, organized, and carried out successfully without central...

Innovation in Boilerplate Contracts: An Empirical Examination of Sovereign Bonds

Network externalities may lead contracting parties to stay with a standardized term despite preferences for another term. Using a dataset of...

Sovereign Debt Reform and the Best Interest of Creditors

In April 2002 the International Monetary Fund introduced a sovereign bankruptcy proposal only to be rebuffed by the United States Treasury. Where the...

An Economic Analysis of Domain Name Policy

One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet...

The Law and Economics of Critical Race Theory

Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Using a recently published...

Norms and Signals: Some Skeptical Observations

This essay discusses Eric Posner's book Law and Social Norms, focusing on Posner's theory of norm adherence as a costly signal of an individual's...

The Law and Economics of Consumer Finance

This survey of the law and economics of consumer finance discusses economic models of consumer lending and evaluates the major consumer finance laws...

Sovereign Bonds and the Collective Will

One hundred years ago in the United States, confronted by the urgent need to find a debt workout procedure for large corporate and railroad bond...

Daubert and Litigation-Driven Econometrics

This paper examines the feasibility of a proposed criterion for the admission of expert econometric testimony. Professor David Kaye suggests that the...

The Common Law and Economic Growth: Hayek Might Be Right

Recent finance scholarship finds that countries with legal systems based on the common law provide better investor protections and have more developed...

Implied Terms and Interpretation in Contract Law

This essay will appear as an entry in the forthcoming Encyclopedia of Law and Economics (2d ed.), published by Edward Elgar. The essay surveys the law...

Richardson v. McKnight and the Scope of Immunity after Privatization

When a government contracts with a private firm to supply a service previously supplied by the government, questions arise as to whether the private...

The Law and Economics of Environmental Contracts

This paper develops a simple economic framework that is used to explain and critique the recent trend favoring site-specific contractual commitments...

The Exchange as Regulator

A common debate among securities lawyers, regulators and professionals is whether and to what extent the internationalization of securities markets...

Numbers in parentheses indicate which academic year(s) the courses were offered, i.e., 2020-21 is coded (21), 2021-22 is coded (22) and 2022-23 is coded (23). (SC) stands for short course.

Behavioral Law and Economics (SC) (23) Comparative Constitutional Law (21,22,23) Computational Text Analysis for Legal Practice (SC) (22) Constitutional Law and Economics (23) Courts (22,23) Criminology (21,22,23) Datafication, Automation and Inequality (SC) (23) Law and Economics (22,23) Law and Economics Colloquium (21,22,23) Law and Psychology: Wrongful Convictions Seminar (22) Law and Social Science Colloquium (21,22,23) Quantitative Methods (21,22) Social Science in Law (21,22,23) Truth, Lies and Statistics for Lawyers (21,22,23)

Michael Gilbert and "Public Law and Economics"

The Law School offers an intellectual environment that often spotlights empirical studies. The Law & Economics Workshop and the Law & Social Science Workshop host researchers from around the world, many of whom employ empirical methods in their work. Faculty affiliated with the center regularly supervise independent studies that result in published student notes.

Related Centers

UVA Law supports other programs and centers whose activities overlap with empirical studies, including the Center for Public Law and Political Economy , the John M. Olin Program in Law and Economics , the John W. Glynn Jr. Law & Business Program , the Virginia Center for Tax Law , the Center for Criminal Justice , and the Center for International & Comparative Law . Beyond the Law School at UVA, faculty teach and write with professors from UVA’s Department of Economics, the Darden School of Business and the McIntire School of Commerce.

Student Journals

From the Virginia Tax Review to the Virginia Law & Business Review, student journals regularly publish work using empirical methods, giving journal members a chance to gain experience in analyzing articles in the field.

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University of Virginia

Empirical Research Services

Meet the Team

From research design to data collection/creation to analysis and presentation of results, we support faculty working with empirical research.

Research Assistance

Support for faculty doing research with an empirical component

Publication Support

Review empirical papers for sound research design and methodology
create publishable quality tables and figures

Instruction

In-class research instruction
How to conduct surveys for programs at HLS
How to read empirical papers for SJD students

Consultations

Schedule an appointment to discuss your project and learn how we can support you

Full support for finding, acquiring, cleaning, reformatting, merging, and scraping data
identifying testable hypotheses
research design
consulting on validity and reliability
analyzing, visualization, and reporting
Conducting field experiments, mturk, and nationally representative surveys
Data visualization
Text analysis, geographical information systems (GIS)
Review grant applications for sound methodology; application support for IRB compliance

Resources for Empirical Research

This section offers broad advice on what to keep in mind when constructing a research design. Many of the points discussed below are drawn from and presented more fully within Epstein & King (2002) as well as King, Keohane, & Verba (1994) which are highly recommended sources for in-depth guidance on proper research design and execution. The first step of any empirical research study is to formulate a research question (PDF) . What does the study seek to explain? A good research question should generally conform to the following rules:

The question should be relevant to the real world . It is important that the study seeks to provide practical and important implications for society.
The question should contribute to an existing body of scholarly literature . By speaking to an established set of related studies, the researcher can help avoid significant problems such as duplicating or overlooking previous work. Issac Newton’s famous quote, “if I have seen a little further it is by standing on the shoulders of Giants” colorfully illustrates this rule.

Once the research question is clearly stated, the next step is to offer a clear answer to the question which is theoretically informed and from which falsifiable hypotheses can be derived. The hypothesis should:

Be stated clearly enough to allow for a test which can determine if the proposed answer is wrong.
Specify a relationship between an outcome (dependent variable) and one or more explanatory variables (independent variables).

If there is insufficient evidence to reject a clearly stated, falsifiable hypothesis, then the theory becomes increasingly plausible. A theory which offers many observable implications and therefore more opportunities to be tested has the potential to become a very strong theory if the hypotheses derived from it cannot be rejected.

Remember that the fundamental objective of empirical research is to make inferences —that is, using known facts to understand unknown facts. Typically we use observable data (known facts) to test certain hypotheses which are guided by theory to uncover these unknown facts.

Let’s take a look at a simple example .

Does the scale accurately report my weight?
When stepping on the scale multiple times, does it return a consistent weight estimate ?

Data are typically classified into two categories—qualitative and quantitative. The levels of measurement are as follows:

Nominal data are one form of qualitative data where objects have no natural order (e.g. gender, race, religion, brand name). It does not make sense to think of Buddhism being “more than” Confucianism.
Ordinal data are another form of qualitative data—specifically, groups which can be ranked. An example of an ordinal variable is a survey respondent’s sense of agreement (e.g. strongly agree, agree, disagree, and strongly disagree). These responses do have a natural order and can be ranked, although the distance between each response is difficult to determine.
Interval data are one from of quantitative data which have a definite natural order and, unlike ordinal data, the difference between data can be determined and is meaningful. Interval-level data do not have a natural zero point, however. For example, 0 degrees on the Fahrenheit scale is arbitrary and therefore 100 degrees Fahrenheit is not twice as warm as 50 degrees.
Ratio data are the second form of quantitative data. In contrast, to interval data, ratio-level data have a non-arbitrary 0 point. For example, 0 yards means no length. 100 yards is twice as far as 50 yards.

Even though qualitative data are mostly based on unordered groups, they can nevertheless be analyzed quantitatively. This is achieved by coding the qualitative data of interest into numerical values. For example, if we are running a survey, we can transform gender (nominal data) into a dichotomous (dummy) variable with each respondent assigned a 1 if female and 0 if male. Likewise, the attitudinal responses on the survey can be assigned numerical values as well, for example, Strongly Agree = 4; Agree = 3; Disagree = 2; Strongly Disagree = 1. Once qualitative data have been coded into numerical variables, they can be analyzed using both basic and advanced statistical models.

In empirical legal research, content coding of natural language text is commonly employed (see Hall and Wright, 2008 ; Evans et al., 2007 ). Content analysis is a popular methodology which, for example, can be employed to summarize characteristics of interest related to court decisions. When possible, it is always best to have individuals other than the researcher code variables as to reduce bias.

Empirical research on legal issues can rely on primary (original) as well as secondary (obtained from elsewhere) data. Bradley Wright and Robert Christensen, for example, in studying the effects of public service motivation on job sector choice, employ an original survey of law students in one study ( Christensen and Wright, 2011 ) as well as survey data from the American Bar Association in another study ( Wright and Christensen, 2010 ).

Another data collection technique is webscraping, using software to visit web sites and extract specific bits of information. Here is a tutorial on web scraping written in the R language that was prepared by Jonathan Whittinghill, the Applied Research Statistician at the HLS Empirical Research Services.

This section provides links to helpful resources on analytical methodologies—both descriptive and statistical. For further assistance, you may also schedule a meeting with the empirical research services unit at the Law Library. Where to learn about analyzing data:

Empirical courses offered at Harvard For students interested in taking courses on empirical research, there are numerous classes offered at Harvard Law School, Kennedy School and FAS. There are five tracks for student interested in empirical research methods, ranging from courses appropriate for those with no background in empirical research to courses for those students who have an extensive methodological background. A description of these tracks can be found here and a list of courses offered on campus can be found in this file prepared by Jonathan Whittinghill.

MIT OpenCourseWare classes on empirical research

Political Science

Political Science Scope and Methods (Undergraduate, Berinsky, Fall 2010)

Introduction to Statistical Method in Economics (Undergraduate, Bennett, Spring 2006)

Introduction to Statistical Methods in Economics (Undergraduate, Menzel, Spring 2009)

Econometrics (Undergraduate, Angrist, Spring 2007)

Statistical Method in Economics (Graduate, Chernozhukov, Fall 2006)

Econometrics I (Graduate, Hausman & Chernozhukov, Spring 2005)

Nonlinear Econometric Analysis (Graduate, Chernoshukov & Newey, Fall 2007)

New Econometric Methods (Graduate, Newey, Spring 2007)

Time Series Analysis (Graduate, Mikusheva, 2013)

Mathematics

Introduction to Probability and Statistics (Undergraduate, Panchenko, Spring 2005)

Probability and Random Variables (Undergraduate, Sheffield, 2014)

Statistics for Applications (Undergraduate, Kempthorne, 2015)

Sloan School of Management

Statistical Thinking and Data Analysis (Undergraduate, Rudin, 2011)

Data, Models, and Decisions (Graduate, Gamarnik, Freund & Schulz, Fall 2007)

Communicating with Data (Graduate, Carroll, Summer 2003)

Doctoral Seminar in Research Methods I (Graduate, Sorensen & Bailyn, Fall 2004)

Doctoral Seminar in Research Methods II (Graduate, Sorensen, Spring 2004)

Overview of quantitative methods (PDF) prepared by Parina Patel Statistical software packages: Stata is a general-purpose statistical software package which is popular among researchers in economics, sociology, political science, epidemiology and biomedicine among others. The statisticians at Harvard Law School primarily use Stata for data analysis.

Machines with Stata are located in the computer classroom in Langdell 353. You may also purchase Stata directly from Statacorp .

The UCLA Institute for Digital Research & Education Stata site has many excellent step-by-step tutorials on a wide range of statistical estimation procedures using Stata.
Germán Rodriguez, Princeton University, Stata resources also has a comprehensive overview of Stata, including data management, graphics and programming examples.
One of the advantages of Stata is its active community of users. The Statalist is an email listserver where more than 3,500 Stata users discuss all aspects of the program. If you have a question, you are likely to find a relevant discussion in the archives of the listserver.
Stata Press publishes excellent manuals on best-practices for a whole range of statistical estimations. Most titles can be found using Hollis. The Stata Journal is also an invaluable resource for furthering usage effectiveness.
Downloadable material for upcoming Stata workshop

R is an open-source programming language and statistical software environment. R offers a wide variety of statistical and graphical techniques . A good description of the software can be found on the official site of R. Compared to Stata and certainly SPSS, R requires a significant amount of programming proficiency. The program is free and can be downloaded here .

The UCLA Academic Technology Services R resources page includes a great set of introductory tutorials, frequently asked questions, analysis examples, and links to downloadable books on R.
Germán Rodriguez, Princeton University, R page has an excellent series on getting started with R, data management and fitting linear and generalized linear models. A list of helpful books on R is also provided.
Adler, Joseph (2010) R in a Nutshell and Muenchen, Robert A. and Joseph M. Hilbe (2010) R for Stata Users

IBM SPSS is another popular general-purpose statistical software package which can handle almost all econometric estimations. A notable difference between the SPSS and Stata/R environments is that SPSS relies much more on Graphical User Interface (point-and-click) procedures making it more user friendly. While the “vanilla” version of SPSS may be somewhat limited relative to Stata or R, there are many SPSS add-ons and modules which provide additional capabilities. SPSS can be bought directly from IBM SPSS .

The UCLA Academic Technology Services SPSS page offers introductory material, examples, links to web books on SPSS, and other helpful resources.
The UCLA Institute for Digital Research & Education SPSS site covers a wide variety of statistical estimation procedures using SPSS

SAS is yet another popular software package used for statistical analysis. It is generally understood as a powerful program especially when working with very large datasets. One significant limitation of SAS is its poor graphical capabilities.

The UCLA Academic Technology Services SAS page provides introductory materials for beginner SAS users, analysis examples, web books and other resources.
When discussing the results of a regression analysis, do not only focus on the parameters which are “statistically significant.” The researcher should also convey how “substantive” an effect each significant variable has on the outcome (dependent) variable. Holding other variables in the model fixed, for instance, what is the predicted value of the dependent variable when the significant independent variable in question is at its minimum, mean, and maximum values?
If you are attempting to use your results to infer about a population, then you should do so while explicitly discussing the level of uncertainty of your estimates. This typically implies discussing the confidence levels of your estimates. For a fun discussion of uncertainty see Ian Ayres’ SuperCrunchers (pgs. 112-116).
Try to avoid presentation of data and results using tables—graphs are almost always superior.

Epstein et al. (2006) “On the Effective Communication of Results of Empirical Studies, Part I” Vanderbilt Law Review 59(6): 1811-1871

Epstein et al. (2007) “On the Effective Communication of Results of Empirical Studies, Part II” Vanderbilt Law Review vol. 60(3): 801-846.

Once you are finished, you might be interested in trying to get your study published in a law school law review or in a peer-reviewed journal from a society and larger publisher. Washington and Lee’s Law Journal Submission and Ranking website , Ulrich’s Global Serials Directory , and ISI Journal Citation Reports are good resources for identifying both types of journals both within and outside of the United States. (There is a peer-reviewed journal that is actually devoted completely to empirical legal studies work, Journal of Empirical Legal Studies .While simultaneous submission of manuscripts to multiple journals is the norm for most law school law reviews (with August-October and February-April being the big submission “seasons”), most peer-reviewed journals require exclusive submissions. (Some student edited journals like the Harvard Law Review and Stanford Law Review are also starting to experiment with peer or faculty review and may prefer exclusive submissions.) You should always check the journal’s website for specific guidelines about preparing manuscripts for publication. (For example, the NYU Law Review has special guidelines just for empirical work).You might also want to consider depositing your data to make it available for replication and further use by future researchers. Some journals might actually require you to submit your data for manuscript review or for publication. While there are various options for storing and archiving your data, one of the most popular ones with social scientists is IQSS Dataverse . It has several features, including the ability to prepare data visualizations for users.

Journal of Empirical Legal Studies (Harvard Key required)

ELG The Empirical Legal Group

Empirical Legal Studies

ELS Librarians

Other Empirical Legal Studies Library Sites

UC Berkeley

Modal Gallery

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Empirical Research Group

UCLA Law’s Empirical Research Group emphasizes careful data collection and rigorous research methods in law, the social sciences, and public policy.

The Devil is in the Data

Are the facts in your favor? UCLA's Empirical Research Group focuses on the importance of rigorous empirical research in law.

UCLA Law has a long history of empirical legal research, with more than half of its faculty having published empirical research. The Empirical Research Group helps support that tradition. Building on a core group of empirical legal scholars, ERG promotes rigorous research by students, staff and faculty that crosses the boundaries between law, the social sciences and public policy.

Students interested in empirical legal research, have the opportunity to improve their research skills and gain valuable research experience while at UCLA Law, with individualized guidance, training and support. Whether students are interested in developing the skills and vocabulary to better with policy researchers and analysts when advocating for legislative and policy change, assessing the use of statistical evidence in the courtroom, or collecting and leveraging empirical evidence to better advocate for their client or improve their practice, the Empirical Research Group can help students develop an individualized plan that suits their interests and needs.

Jonathan Rodgers

Daniel j. bussel, ingrid eagly, jill r. horwitz, lynn m. lopucki, timothy malloy, richard h. sander, joanna c. schwartz, sherod thaxton, for students.

The Empirical Research Group supports student interest in empirical research in four primary ways:

Offering Coursework : Faculty offer a variety of courses that provide the opportunity for students to develop the skills and knowledge to be able to conduct high level empirical legal research.
Enabling Participation in UCLA Law Research Projects : At any given moment there are dozens of ongoing empirical legal research projects at UCLA, and UCLA students have the opportunity, often as a paid research assistant, to participate in these projects.
Connecting Students to Outside Research Opportunities : ERG has strong connections with groups beyond the law school that engage in important legal and policy research, including with UCLA researchers beyond the school, researchers with the RAND Corporation, various NGOs and governmental organizations, and private firms.
Mentoring Student-Initiated Research : Students who are interested in pursuing individual research projects can receive mentorship and guidance from ERG faculty and staff.
Advising Students Interested in Research or Policy Jobs : ERG can advise students who are interested in pursuing research or policy careers after their JD.

Steven A. Bank. Dividends and Politics (with Brian Cheffins and Marc Goergen), 25 European Journal of Political Economy 208-224 (2009).

Samuel L. Bray. The Myth of the Mild Declaratory Judgment, 63 Duke Law Journal 1091 (2014).

Daniel J. Bussel. Opinions First--Argument Afterwards, 61 UCLA Law Review 1194 (2014).

Scott Cummings. Managing Pro Bono: Doing Well by Doing Better (with Deborah L. Rhode), 78 Fordham Law Review 2359 (2010).

Sharon Dolovich. Two Models of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail, 102 Journal of Criminal Law & Criminology 965 (2012).

Sharon Dolovich. Strategic Segregation in the Modern Prison, 48 American Criminal Law Review 1 (2011).

Ingrid Eagly. Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 NYU Law Review 1126 (2013).

Ingrid Eagly. Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 UCLA Law Review 1749 (2011).

Ingrid Eagly. Prosecuting Immigration, 104 Northwestern University Law Review 1281 (2010).

Carole Goldberg. A Study of the Administration of Justice in Indian Country (with Duane Champagne), Report to the National Institute of Justice, Department of Justice. Washington, DC. August 31, 2011.

Robert Goldstein. Picturing the Life Course of Procreative Choices, 58 UCLA Law Review Discourse 5 (2010).

Allison Hoffman. Retiree Out-of-Pocket Healthcare Spending: A Study of Consumer Expectations and Policy Implications (with Howell E. Jackson), 39 American Journal of Law and Medicine 1-72 (2013).

Jill R. Horwitz. Expansion of Invasive Cardiac Services in the United States (with Austin Nichols, Brahmajee K. Nallamothu, Comilla Sasson, and Theodore J. Iwashyna), 128(8) Circulation 803-810 (20 August 2013).

Jill R. Horwitz, , Wellness Incentives in the Workplace: Cost Savings through Cost Shifting to Unhealthy Workers (with Brenna D. Kelly, and John DiNardo), 32(3) Health Affairs 468-476 (2013).

Jerry Kang. Are Ideal Litigators White? Measuring the Myth of Colorblindness (with Nilanjana Dasgupta, Kumar Yogeeswaran, & Gary Blasi) 7 J. Empirical Leg. Studies 886-915 (2010).

Kenneth N. Klee. One Size Fits Some: Single Asset Real Estate Bankruptcy Cases, 87 Cornell Law Review 1285-1332 (2002).

Russell Korobkin. Who Wins in Settlement Negotiations? (with Joseph W. Doherty), 11 American Law and Economics Review 162-208 (2009).

Maximo Langer. Managerial Judging Goes International but its Promise Remains Unfulfilled: An Empirical Assessment of the ITCY Reforms (with Joseph W. Doherty), 36 Yale Journal of International Law 241 (2011).

Douglas Lichtman. Rethinking Prosecution History Estoppel, 71 University of Chicago Law Review 151 (2004).

Gerald P. López. The Health of Undocumented Mexicans in in New York City, 32 Chicano-Latino L. Rev . 1 (2013).

Gerald P. López. Access to and Use of Health Services Among Undocumented Mexican Immigrants in a U.S. Urban Area (with Arijit Nandi, Sandro Galea, Vijay Nandi, Stacey Strongarone & Danielle C. Ompad), 98 Am. J. Public Health 2011 (2008).

Gerald P. López. Hunger and Health Among Undocumented Mexican Migrants in a U.S. Urban Area ( with Craig Hadley, Sandro Galea, Vijay Nandi, Arijit Nandi, Gerald López, Stacey Strongarone & Danielle Ompad), 11 Public Health Nutr . 151 (2008).

Lynn M. LoPucki. Controlling Professional Fees in Corporate Bankruptcies: Data, Analysis, and Evaluation (with Joseph W. Doherty). Oxford University Press (2011).

Lynn M. LoPucki. Bankruptcy Fire Sales (with Joseph W. Doherty), 106(1) Michigan Law Review (2007).

Timothy Malloy. The Social Construction of Regulation: Lessons from the War Against Command and Control, 58 Buffalo Law Review 267-354 (2010).

Neil Netanel. Making Sense of Fair Use, 15 Lewis & Clark Law Review 715-771 (2011).

James Park. Bond Investors and the Evolution of the Securities Class Action, 99 Minn. L. Rev. 585 (2014)

James Park. Securities Class Actions and Bankrupt Companies, 111 Michigan Law Review 547 (2013).

Richard H. Sander. Affirmative Action Bans and the "Chilling Effect" (with Kate L. Antonovics), 15 American Law & Economics Review 252 (2013).

Richard H. Sander. The Secret of My Success: How Status, Eliteness, and School Performance Shape Legal Careers (with Jane Bambauer), 2012 Journal of Empirical Legal Studies 893-930 (2012).

Joanna C. Schwartz. Police Indemnification, 89 New York University Law Review 885 (2014).

Joanna C. Schwartz. A Dose of Reality for Medical Malpractice Reform, 88 New York University Law Review 1224 (2013).

Joanna C. Schwartz. What Police Learn from Lawsuits, 33 Cardozo Law Review 841 (2012).

Kirk J. Stark. Tiebout & Tax Revolts: Did Serrano Really Cause Proposition 13? (with Jonathan M. Zasloff), 50 UCLA Law Review 801-58 (2003).

Katherine Stone. The Decline in the Standard Employment Contract: Evidence from Ten Advanced Industrial Countries, in Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (edited by Katherine V.W. Stone and Harry Arthurs, Russell Sage Foundation, 2013).

Rebecca Stone. Pricing Misperceptions: Explaining Pricing Structure in the Cell Phone Service Market (with Oren Bar-Gill), 9 Journal of Empirical Legal Studies 430 (2012).

Alexander Stremitzer. Framing Contracts: Why Loss Framing Increases Effort (with Richard R. W. Brooks and Stephan Tontrup), 168 Journal of Institutional and Theoretical Economics 62-82 (2012).

Sherod Thaxton. Leveraging Death, 103 Journal of Criminal Law & Criminology 475 (2013).

Adam Winkler. Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vanderbilt Law Review 793-871 (2006).

Stephen C. Yeazell. Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial, 1 Journal of Empirical Legal Studies 943-971 (2004).

Jonathan Zasloff. Tiebout & Tax Revolts: Did Serrano Really Cause Proposition 13? (with Kirk J. Stark), 50 UCLA Law Review 801-58 (2003).

Noah Zatz. Revisiting the Class Parity Analysis of Welfare Work Requirements, 83 Social Service Review 213 (2009).

Eric M. Zolt. Inequality and Taxation: Evidence From the Americas on How Inequality May Influence Tax Institutions (with Kenneth L. Sokoloff), 59 Tax Law Review 167-241 (2006).

Rick Hasen is quoted by CNN on how much non-citizens would risk if they voted in the U.S.

Rick hasen appears on the pbs newshour to explain the law of campaign donations as trump's first criminal trial begins, rick hasen does a q&a with the arts fuse magazine about his book 'a real right to vote'.

A conversation with Megan Perrin, Vice President, Human Resources at STX Entertainment and Jill Goerdt, Vice President of Human Resources at Paramount Global

Washington University School of Law

Center for Empirical Research in the Law

CERL’s mission is to

Support data-driven research about the law, lawyers, legal institutions.
Share data resources to promote access and understanding of the law.
Examine law and policy on data science, machine learning algorithms, and AI.

Applying Empirical Psychology to Inform Courtroom Adjudication — Potential Contributions and Challenges

Modern Courts Commentary Series

Avani Mehta Sood
See full issue

While the American public grapples with the recently introduced concept of “alternative facts,” U.S. courts have their own categories of “facts” to contend with. The legal system has traditionally been oriented toward determining “adjudicative facts” — alleged specifics of a case that parties put forth through witness testimony and other forms of evidence to advance their legal claims. 1 Legislative facts” — information from outside the case that has “relevance to legal reasoning and the lawmaking process” 2 — can also play a role in judicial adjudication. At the same time, many legal rules, doctrines, and procedures seem to assume as “fact” that judges and jurors process information and reason toward outcomes according to legal expectations.

This Commentary looks to how research at the intersection of law and psychology can help inform courts about cognitive realities that are pertinent to the cases before them. Empirical psychology studies can offer insights into law and legal decisionmaking, while testing legal assumptions to improve the accuracy and fairness of the legal system.

Psychologists have had a longstanding interest in legal psychology, but more recently, there has been a burgeoning of interdisciplinary scholars who are combining tools of psychology and legal scholarship to ask new questions about the law. The resulting research is increasingly grounded in legal doctrine and procedure, with an eye toward normative and prescriptive implications for the legal system. Researchers have drawn upon the theories and methodologies of psychology to shed light on, inter alia, the mental processes of key legal players, 3 the psychological dynamics underlying particular substantive areas of law, 4 and general social and cognitive phenomena that may broadly, but often covertly, affect the operations of the legal system. 5

To illustrate some of the potential contributions and challenges of applying psychology to inform courtroom adjudication, I will draw upon examples from my own research, which seeks to bring empirical understandings of the human mind into mainstream legal scholarship and discourse. The first line of work I describe investigates the operation of a psychological phenomenon that can potentially skew judicial decisionmaking, and points toward possible remedies that depend on decisionmakers being made aware of this cognitive effect. The second line of work explores potential entry points for legal misunderstanding and bias in lay decisionmaking, and speaks to the responsibility judges bear when conveying the law to jurors. These examples serve to demonstrate some types of insights that law-and-psychology research can offer courts, as well as some methodological limitations and potential means by which to address them. I will conclude by highlighting a few promising pathways toward facilitating judicial access to empirical psychology findings.

Motivated Applications of the Exclusionary Rule

One way psychology can help inform adjudication is by offering a window into cognitive processes that operate below the level of consciousness, even among judges. Consider the Fourth Amendment exclusionary rule, which generally bars the use of illegally obtained evidence in criminal cases no matter the crime charged. 6 Do judges actually determine the admissibility of evidence without regard to the nature of the defendant’s alleged offense? Or are the exclusionary rule’s malleable exceptions (such as “inevitable discovery” and “good faith”) 7 entry points for inadvertently motivated decisionmaking that could skew legal outcomes based on doctrinally irrelevant factors, such as the egregiousness of the defendant’s alleged crime?

One psychological phenomenon that I have explored in this context is “motivated cognition” — a human tendency to reason toward preferred outcomes by perceiving, interpreting, or evaluating information in a biased manner, without realizing one is doing so. 8 Even when seeking to do nothing other than faithfully apply the law, legal decisionmakers may be susceptible to motivated cognition because “the more extensive [cognitive] processing caused by accuracy goals may facilitate the construction of justifications for desired conclusions.” 9

To test for the operation of motivated cognition in admissibility judgments, I conducted a series of psychology experiments on the exclusionary rule and its “inevitable discovery” exception. This exception allows evidence that was illegally obtained by the police to be admitted if a judge concludes that it eventually would have been lawfully discovered were it not for the illegal search and seizure in question. 10 My research showed that when lay participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime that triggered a strong motivation to punish (selling heroin to high school students), they tended to construe discovery of the evidence as “inevitable,” which enabled them to recommend that the “tainted” evidence be admitted under the legal exception. 11 By contrast, when an identical illegal police search uncovered evidence of a less egregious crime (unlawfully selling marijuana to cancer patients), participants were over three times more likely to suppress the challenged evidence, construing the search as calling for application of the exclusionary rule without exception. 12 This difference in suppression outcomes between the two cases appeared to be mediated by the decisionmakers’ perceptions of the defendant as more immoral and deserving of punishment in the heroin condition than in the marijuana condition. 13

Furthermore, even though the police misconduct was exactly the same (and unambiguously illegal) in both the heroin and marijuana cases, the decisionmakers construed the police officers as less morally culpable and less deserving of negative consequences when their search happened to uncover evidence of the more egregious crime. 14 This result is particularly noteworthy given that some of the U.S. Supreme Court’s recent rulings on the exclusionary rule have turned on the perceived degree of police wrongfulness in challenged searches. 15 Furthermore, critics of the rule have suggested replacing it with broader reliance on civil damages suits against offending officers. 16 What is legally supposed to matter in such criminal suppression hearings or civil suits is “the extent to which the police have deviated from prescribed norms, not the extent to which the defendant has.” 17 However, my results suggest that legally irrelevant feelings about the defendant’s crime may drive legal conclusions about evidentiary exclusion and police wrongdoing. Later, I will address the applicability and replication of these experimental findings vis-à-vis actual judges, and discuss additional research pointing toward a potential means of curtailing the demonstrated motivated cognition effect.

Legal Misunderstanding and Bias in “Constructions” of Criminality

In addition to making judges cognizant of psychological effects that could influence the legal determinations they make, empirical psychology can inform another important judicial function: instructing the jury. When jurors are tasked with applying highly discretionary legal standards, courts need to ensure that these lay decisionmakers are equipped with an accurate understanding of the law. The stakes in this process are high, especially in criminal trials. And yet the legal system is largely in the dark about how jurors absorb, interpret, and apply the factual and legal information they are given to determine criminal liability.

Criminal attempt is one area of law that may be especially susceptible to disconnects between legal expectations and cognitive realities in this regard, due to the ambiguity and vagueness of the legal standards that define the offense. The Model Penal Code’s “substantial step” test, which seeks to “extend the criminality of attempts” by imposing liability at an earlier point toward committing a crime, is legislatively intended to be relatively more prosecution-friendly than the common law’s “proximity” test, which theoretically sets the threshold for attempt liability closer to completing the crime. 18 But both of these standards default to opaque language in defining when criminal liability attaches. At what point is a “step” toward an uncompleted crime “substantial” enough to merit criminal punishment? Or how “close” is “proximate” enough to be found guilty of attempt? Judges, lawmakers, and lawyers operate under a generally shared understanding of how these different tests draw their respective lines of liability, but does that trained legal understanding cohere with how jurors assign criminality? Drawing upon psychology theory, I suggest that lay decisionmakers who are called on to make criminal determinations in such circumstances of legal opacity may be at particular risk of delivering judgments that are vulnerable to legal misunderstanding and bias.

To test this hypothesis, I am currently conducting a series of experiments exploring the roles of facts and law in lay determinations of criminal attempt. 19 My results thus far suggest that either jury instructions on the different legal standards for attempt appear to make no significant difference to lay constructions of liability or, in some factual circumstances, a defendant may surprisingly be worse off under the theoretically more defense-friendly legal test. Furthermore, lay decisionmakers may be more likely to exhibit biases based on legally irrelevant factors, such as the defendant’s implied religion, when applying one legal test as compared to the other — potentially due in part to the language of the given laws. These and other findings of this research throw into question general legal assumptions about how lay decisionmakers operationalize facts and law, highlighting potentially critical gaps between what is supposed to govern and what actually does seem to govern lay constructions of criminality. Such possible ruptures in communicating legal expectations to jurors could hinder the duty of courts to enforce legislative intent, as well as broader legal values of equitable adjudication.

Pathways Toward Legal Reform

Theories and methodologies of psychology can be used not only to identify potential misalignments between assumptions of the law and cognitive tendencies of legal decisionmakers, but also to confront the downstream question of how such disconnects can be addressed. Pursuing this path is especially important when legal standards call for high degrees of judicial or juror discretion (as seen in the exclusionary and criminal attempt doctrines described above), because disparate and doctrinally unfaithful applications of the law in such arenas, even if unintended, risk weakening the legitimacy of the legal system. 20

In regard to motivated cognition in legal judgments, I have shown that even indirectly raising consciousness about legally irrelevant but potentially motivating factors can go a significant way toward curtailing the influence of those factors 21 — seemingly by piercing the “illusion of objectivity” 22 under which the motivated cognition process operates. Furthermore, in my research on the exclusionary rule, directly forewarning participants that they could be influenced by the egregiousness of the defendant’s crime and encouraging them to confront this legally extrinsic motivation succeeded in thwarting its impact on their admissibility judgments. 23

Once sufficiently replicated through research with both lay and judicial decisionmakers, such findings that reveal pathways toward curtailing motivated cognition could be operationalized in various ways. At the most basic level, simply raising judicial awareness by informing judges of research on decisionmaking points shown to be vulnerable to cognitive biases may help them guard against these effects in their own legal judgments. Anecdotally, judges with whom I have shared my above-described research findings on motivated applications of the exclusionary rule have noted that just knowing about this effect now gives them pause when making suppression decisions. At a more systemic level, academics are already working with courts and judicial centers to disseminate relevant empirical psychology findings to the judiciary through conferences and trainings. 24 Expanding these opportunities could serve the justice system well.

Going one step further, judges could institute a practice of reading aloud awareness-generating instructions in court to acknowledge and potentially curtail cognitive biases — not only when instructing the jury, but also before their own rulings on significant legal issues, such as the admissibility of pivotal evidence. At a minimum, the symbolic value of judges formally acknowledging the need to avoid potential biases as a step in even their own decisionmaking processes would demonstrate a commitment to fair adjudication that could bolster public confidence in courts. 25 Psychology-based efforts toward reform could thus aim to improve both the actual and perceived integrity of the legal system.

Before such interventions are pursued, however, further work is needed to explore their feasibility and efficacy on jurors in real courtroom contexts, as well as on judges. Additional research is also needed to shed light on when and why instructions on potential decisionmaking biases are likely to be ineffective . For example, one of the key findings in my research on motivated applications of the exclusionary rule was that not all types of awareness-generating instructions were successful in curtailing this effect. While instructions grounded in a psychological model of bias correction 26 worked, instructions that informed participants either of the legal rationales underlying the exclusionary rule or of existing experimental findings on motivated cognition had no significant effect on curbing the phenomenon. 27 Furthermore, awareness-generating interventions are unlikely to remedy consciously motivated legal decisionmaking, which calls for different normative and research inquiries.

Potential risks of “debiasing” interventions also need to be better understood. In some circumstances, instructions may backfire by eliciting psychological denial or rejection depending on the type of bias targeted; 28 or judges and jurors may engage in “overcorrection” that unfairly skews outcomes in the opposite direction. 29 Thus, there may be as much for researchers and courts to learn from attempted remedies that do not work as from those that do.

In addition to applying psychology findings to guide debiasing efforts in the courtroom, judges can draw upon empirical data to improve jury instructions on the law — an area in which much relevant research has been and is being conducted. 30 In my current studies on lay applications of attempt doctrine, participants’ written explanations indicate, inter alia, that those who misunderstood the given legal standards for attempt liability seemed to pick out salient terms — like “substantial” and “proximity,” which appear in standards across various areas of law — and construed them in a manner inconsistent with legislative intent. 31 Such findings illustrate how empirical investigations can identify legal concepts and terms that are at high risk of lay misunderstanding, and help lawmakers and courts rethink ways in which to convey them, so that the cognitive experiences of jurors better align with the expectations and goals of the legal system.

Methodological Limitations and Alternatives

While psychology studies like the ones described above allow for causal insights that could inform legal adjudication, questions about their “internal,” “external,” and “ecological” validity, as explained below, may need to be addressed for the results to be of use to courts. Furthermore, the field of psychology has recently been embroiled in debates about a “replication crisis” stemming from failures to reproduce published experimental results. 32 This may make judges question whether conclusions from the discipline can be generally relied upon. The suggestions below, although not intended to be comprehensive, offer some routes for addressing validity and replicability concerns.

The internal validity of a study — the extent to which a variable of interest can be said to cause an observed effect — depends on tightly controlling for confounding factors that could otherwise be driving the effect. 33 For example, one might ask whether decisionmakers are more likely to apply the exclusionary rule’s inevitable discovery exception to admit challenged evidence in cases of more egregious crime not because they are more motivated to punish, but rather due to some other factor having to do with the nature of the offense — such as police officers devoting more resources to solving a more serious crime.

Experiments can control for such potentially confounding factors by holding constant all facts other than the manipulated variable. In my exclusionary rule studies, the police search was identical in both the heroin and marijuana cases; there was nothing in the facts to suggest that the officers knew beforehand what crime their search would uncover; and even a possible alternative avenue for discovery of the evidence was held consistent across both scenarios.

Internal validity concerns can additionally be addressed through variations in study design. For example, further studies on the exclusionary rule could present the same type of drug and target buyers in both experimental conditions, and test the effect of crime egregiousness by manipulating only the purpose for which the drug was being illegally sold (such as therapeutic versus recreational use). Replicating experimental results across different designs can help bolster not only the internal validity of findings, but also their credibility in response to concerns about the reproducibility of reported results.

Tight experimental controls for internal validity often entail a trade-off with external validity: the “generalizability” of an effect in terms of whether it holds up across settings and persons beyond the experimental circumstances; and with the related concept of ecological validity: the “representativeness” of an effect in terms of whether the experimental environment, materials, and tasks approximate real-world contexts, stimuli, and behaviors. 34 For example, my exclusionary rule experiments reflect two potential concerns in this regard: (1) they used lay participants acting as judges, whereas real admissibility decisions are made by professional judges; and (2) they presented hypothetical cases with controlled facts, whereas judicial responses may be different in actual legal cases with real-life consequences.

The first of these concerns — the question of whether the legal training and repeat decisionmaking experiences of actual judges protect them from the motivated cognition effect seen among lay decisionmakers — is empirically testable thanks to members of the bench who participate in research studies. The resulting experimental findings suggest a complex cognitive landscape: professional judges also seem to be susceptible to motivated decisionmaking triggered by legally irrelevant information, but may be more resistant to some forms of cognitive and ideological biases compared with ordinary citizens. 35 Regarding crime egregiousness and the exclusionary rule in particular, Magistrate Judge Andrew Wistrich and Professors Jeffrey Rachlinski and Chris Guthrie tested a variation of my heroin/marijuana suppression paradigm with actual judges and found that, like the lay participants in my studies, members of the bench were significantly more likely to admit challenged evidence when a case involved heroin than when it involved marijuana. 36

Next, to address whether judicial rulings in real cases reflect the motivated outcomes seen among both lay people and judges in experimental settings, I am collaborating with two political scientists, Professors Jeffrey Segal and Benjamin Woodson, to test the effect of crime severity in approximately 500 actual federal appellate search-and-seizure decisions. 37 As predicted, the analyses indicate that, controlling for the intrusiveness of the police search and the political ideology of the authoring judge, the probability of judges admitting challenged evidence is significantly higher in cases involving more severe crimes.

While this method of analyzing existing cases also has its potential limitations, 38 including the impossibility of cleanly isolating variables in real legal disputes, such studies can work in conjunction with experimental findings to contribute different dimensions of validity. 39 Arriving at consistent answers to a research question through a combination of different interdisciplinary paths — not just the ones described here, but also other approaches like case studies and interviews — can enable more nuanced and confident insights than any one methodology in isolation can provide. 40 Furthermore, a “mixed methods” approach that provides converging evidence in support of a shared hypothesis can help address the above-noted concern about experimental replication.

Ideally, law-and-psychology researchers should move toward conducting more studies directly in the field: in real courtrooms, with real judges and jurors. 41 If courts facilitate such access, it would in turn help promote the generation of research that is likely to be more directly applicable to real legal adjudication. Furthermore, there is a need for more empirical investigations into whether and how the dynamics of group decisionmaking, in juries or panels of judges, impact cognitive effects demonstrated at the individual level. 42

Another methodological caveat to applying empirical psychology to courtroom adjudication is that the findings generated by such research cannot be regarded as “facts” in the sense of indisputable information. Generally, the answers, predictions, and understandings that social and behavioral science studies provide tend to be “complex, . . . probabilistic (that is, expressed in terms of the increased likelihood of an event occurring rather than as a certainty), . . . and subject to revision.” 43 To help guard against overstated or premature legal applications of such findings, the inherently inference-based and evolving nature should be explicitly confronted when presenting the work to courts.

These features do not, however, negate the value that such studies can contribute to the legal system. In fact, the probabilistic nature of empirical findings could help identify pathways toward legal reform. For example, in the exclusionary rule studies discussed above, not all participants were equally susceptible to the motivated cognition effect; a minority of laypeople and judges suppressed tainted evidence even when faced with the more egregious crime. 44 Such differences between individuals could be pursued in future research to identify whether and why particular cognitive characteristics or circumstances make some people more impervious to decisionmaking biases. This research could then be applied to guide more targeted instructional or training interventions for judges and jurors.

Additionally, notwithstanding the inherently probabilistic nature of empirical psychology, once enough evidence has been gathered and replicated on phenomena that are relevant to legal decisionmaking — through testing of verifiable hypotheses using multiple measures and methodologies to maximize validity — such work can present a compelling prima facie case for judicial consideration. For instance, the large body of research on cognitive biases in legal judgments, from which I have highlighted just a few examples here, suggests that judges should consider the likelihood of such effects in their own decisionmaking, or when instructing jurors. Furthermore, researchers and courts alike can glean lessons from the successes and setbacks of areas of empirical psychology that have already permeated and influenced the legal system, such as the extensive work on the fallibility of eyewitness testimony. 45

Facilitating Access to Empirical Findings

Prospects of a more psychologically enlightened legal system have already inspired efforts toward facilitating the exchange of information between research labs and courtrooms. One advancement in this direction has been that law-and-psychology scholars are increasingly targeting their research not only toward interdisciplinary and empirical journals 46 but also toward generalist law reviews — thereby augmenting the possibility of a wider network of connections to the bench and the bar.

While the production of original empirical findings is prized in the academy, legal scholars with relevant disciplinary expertise should also be encouraged to regularly conduct literature reviews and meta-analyses that synthesize and examine the fast-growing bodies of research accumulating on topics applicable to courtroom adjudication, with an emphasis on highlighting practical legal implications. 47 Such efforts would not only make the research more identifiable and accessible to practitioners and judges but would also ensure critical peer oversight of the findings — for just as with any process of human cognition, there may be inadvertent biases operating in researchers’ interpretations of their own data. 48 If analytical reviews of existing empirical literature are conducted independently of the facts of any particular litigation, judges may be more inclined to regard them as objectively reliable sources of information if they are later put forward to inform a legal case — including by the researchers themselves acting as amici or court-appointed expert witnesses 49 — than if such analyses were specifically commissioned for the case in question.

Another positive direction for broadening productive connections between the academy and the bench has been the expansion of informal exchanges outside the courtroom, with judges participating in research colloquiums and academics presenting their research findings at judicial conferences. Critically, the communication is increasingly two-sided — with judges not only learning about potentially relevant scholarship, but also informing researchers of the types of studies they would find most helpful on the bench — through informal engagements or judicial opinions that highlight the empirical testability of questions that come before courts. 50

Finally, an implication of these proposals to bring more empirical psychology to bear in the courtroom is that law schools should consider moving toward training their students on basic empirical and psychological literacy. That way, future litigators, judicial law clerks, and judges in the system would be equipped to themselves assess data relevant to the legal cases that they try, process, or adjudicate. 51 Some law schools are already offering courses or entire programs on empirical methods, statistics, and law and psychology. 52 More broadly, legal instructors can also highlight applications of interdisciplinary and empirical research in mainstream doctrinal classes, including fundamental “black letter law” subjects like Contracts, Criminal Law, Evidence, and Torts — all areas in which relevant empirical psychology work has been conducted. 53 To practice implementation, in-class exercises or policy questions on exams that call upon students to think critically about improving legal doctrines, practices, or outcomes could then include a component asking students to consider what kinds of empirical research would help inform their proposals.

In my experience of applying these pedagogical approaches, an added benefit is that the fresh perspectives law students offer can inspire and inform the development of empirical psychology scholarship. Thus, notwithstanding debates about whether law schools should focus more on “training lawyers for practice” versus “prioritiz[ing] academic scholarship . . . at least in part by adopting the methods of the social sciences and other disciplines,” 54 the strategies proposed herein are consistent with the view that these two missions not only can “coexist . . . [as they] have for many decades,” 55 but also can productively propel each other in novel directions. 56

The law is replete with potentially erroneous assumptions about how the human mind works, many of which have been around for centuries and continue to operate unchecked in the legal system. Fortunately, the field of psychology’s theoretical and empirical tools for rigorously testing these assumptions are being employed with an eye toward informing and improving legal adjudication. The rapid growth and increasing accessibility of such research may call for legal checks on the judiciary’s use of it, such as notice to the parties and opportunities to rebut. 57 However, with appropriate safeguards both in the scientific generation of the data and in its legal applications, empirical psychology can provide valuable insights into factual, legal, and normative dimensions of courtroom decisionmaking.

* Assistant Professor, University of California, Berkeley, School of Law. Thanks to Vincent Burnton and Carly Giffin for research assistance; to participants in Berkeley Law’s Junior Working Ideas Group for pivotal feedback on an earlier draft; and to Joshua Davis, Judge William Fletcher, Justin McCrary, Tracey Meares, Joy Milligan, Saira Mohamed, Janice Nadler, Victoria Plaut, Kevin Quinn, Jeffrey Rachlinski, Mary Rose, Andrea Roth, Dan Simon, Holger Spamann, and Michael Webster for helpful comments.

^ See Fed. R. Evid. 201(a) advisory committee’s note (1972 Proposed Rules) (drawing upon Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process , 55 Harv. L. Rev. 364 (1942)).

^ Id. ; see also John Monahan & Laurens Walker, Judicial Use of Social Science Research , 15 Law & Hum. Behav. 571, 581 (1991) (discussing use of social science research to determine adjudicative versus legislative facts, as well as “social framework” facts that include elements of both).

^ See generally, e.g. , Neil Vidmar & Valerie P. Hans, American Juries (2007); Shari Seidman Diamond et al., Damage Anchors on Real Juries , 8 J. Empirical Legal Stud. (Special Issue) 148 (2011); Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind , 86 Cornell L. Rev. 777 (2001); Rebecca Hollander-Blumoff & Tom R. Tyler, Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential , 33 Law & Soc. Inquiry 473 (2008); L. Song Richardson & Phillip Atiba Goff, Essay, Implicit Racial Bias in Public Defender Triage , 122 Yale L.J. 2626 (2013); Paul H. Robinson & John M. Darley, Intuitions of Justice: Implications for Criminal Law and Justice Policy , 81 S. Cal. L. Rev. 1 (2007); Tom R. Tyler, Phillip Atiba Goff & Robert J. MacCoun, The Impact of Psychological Science on Policing in the United States: Procedural Justice, Legitimacy, and Effective Law Enforcement , 16 Psychol. Sci. Pub. Int. 75 (2015); Neil Vidmar, James E. Coleman Jr. & Theresa A. Newman, Rethinking Reliance on Eyewitness Confidence , 94 Judicature 16 (2010).

^ See generally, e.g. , Michelle Wilde Anderson & Victoria C. Plaut, Property Law: Implicit Bias and the Resilience of Spatial Colorlines , in Implicit Racial Bias Across the Law 25 (Justin D. Levinson & Robert J. Smith eds., 2012); Jennifer K. Robbennolt & Valerie P. Hans, The Psychology of Tort Law (2016) ; Michael J. Saks & Barbara A. Spellman, The Psychological Foundations of Evidence Law (2016) ; Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (2012); Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment , 94 Calif. L. Rev. 997 (2006); Victor D. Quintanilla & Cheryl R. Kaiser, The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias , 104 Calif. L. Rev. 1 (2016); Tess Wilkinson-Ryan & Jonathan Baron, Moral Judgment and Moral Heuristics in Breach of Contract , 6 J. Empirical Legal Stud. 405 (2009).

^ See generally, e.g. , Ideology, Psychology, and Law (Jon Hanson ed., 2012); Kenworthey Bilz, Testing the Expressive Theory of Punishment , 13 J. Empirical Legal Stud. 358 (2016); Dan M. Kahan et al., “ They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction , 64 Stan. L. Rev. 851 (2012); Jerry Kang et al., Implicit Bias in the Courtroom , 59 UCLA L. Rev. 1124 (2012); Janice Nadler & Mary-Hunter McDonnell, Moral Character, Motive, and the Psychology of Blame , 97 Cornell L. Rev. 255 (2012); Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making , 71 U. Chi. L. Rev. 511 (2004); Avani Mehta Sood, Motivated Cognition in Legal Judgments — An Analytic Review , 9 Ann. Rev. L. & Soc. Sci. 307 (2013).

^ See Mapp v. Ohio, 367 U.S. 643, 655 (1961). See generally Avani Mehta Sood, Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule , 103 Geo. L.J. 1543, 1549–50 (2015).

^ See Sood, supra note 6, at 1552; see also Nix v. Williams, 467 U.S. 431, 455 (1984) (inevitable discovery); United States v. Leon, 468 U.S. 897, 913 (1984) (good faith).

^ See Sood, supra note 6, at 1560–64; see also Ziva Kunda, The Case for Motivated Reasoning , 108 Psychol. Bull. 480 (1990).

^ Kunda, supra note 8, at 487; see also Charles S. Taber et al., The Motivated Processing of Political Arguments , 31 Pol. Behav. 137, 148–49 (2009).

^ See Nix , 467 U.S. at 445.

^ Sood, supra note 6, at 1564–80.

^ Id. at 1572. Mediation analysis is a statistical method of assessing whether an observed relationship between two variables is explained by a third variable. Reuben M. Baron & David A. Kenny, The Moderator-Mediator Variable Distinction in Social Psychological Research: Conceptual, Strategic, and Statistical Considerations , 51 J. Personality & Soc. Psychol. 1173, 1173 (1986).

^ Sood, supra note 6, at 1573–74.

^ See, e.g. , Herring v. United States, 555 U.S. 135, 144 (2009) (upholding admissibility of evidence when police error does not rise to the level of “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence”); see also Sood, supra note 6, at 1558–60, 1581–82.

^ See Sood, supra note 6, at 1589–90.

^ See Yale Kamisar, “ Comparative Reprehensibility” and the Fourth Amendment Exclusionary Rule , 86 Mich. L. Rev. 1, 9–10 (1987) (emphasis added).

^ See Model Penal Code and Commentaries § 5.01 cmt. 1 ( Am. Law Inst. 1985); Herbert Wechsler et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy , 61 Colum. L. Rev. 571, 593–95 (1961).

^ Avani Mehta Sood, The Lay of the Law: Misunderstanding and Bias in Psychological Constructions of Criminality (Aug. 22, 2017) (unpublished manuscript) (on file with the Harvard Law School Library).

^ See Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law , 30 Crime & Just. 283, 350 (2003).

^ See Avani Mehta Sood & John M. Darley, Essay, The Plasticity of Harm in the Service of Criminalization Goals , 100 Calif. L. Rev. 1313, 1342–45 (2012); Sood, supra note 5, at 320–22; see also Janice Nadler, Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame , 75 Law & Contemp. Probs. , no. 2, 2012, at 1, 25–26.

^ Tom Pyszczynski & Jeff Greenberg, Toward an Integration of Cognitive and Motivational Perspectives on Social Inference: A Biased Hypothesis-Testing Mode l, in 20 Advances in Experimental Social Psychology 297, 302 (Leonard Berkowitz ed., 1987) (emphasis omitted).

^ Sood, supra note 6, at 1591–99.

^ See, e.g. , Kang et al., supra note 5, at 1175–77.

^ See Andrew E. Taslitz, Hypocrisy, Corruption, and Illegitimacy: Why Judicial Integrity Justifies the Exclusionary Rule , 10 Ohio St. J. Crim. L. 419, 459 (2013); Tyler, supra note 20, at 284.

^ See generally Duane T. Wegener & Richard E. Petty, The Flexible Correction Model: The Role of Naive Theories of Bias in Bias Correction , in 29 Advances in Experimental Social Psychology 141 (Mark P. Zanna ed., 1997).

^ Sood, supra note 6, at 1591–96.

^ See, e.g. , Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases , 158 U. Pa. L. Rev. 729, 753 (2010); Kang et al., supra note 5, at 1183–84; Joel D. Lieberman & Jamie Arndt, Understanding the Limits of Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence , 6 Psychol. Pub. Pol’y & L. 677, 693–703 (2000); Sood, supra note 5, at 321–22; Sood, supra note 6, at 1596–99.

^ See Ehud Guttel, Overcorrection , 93 Geo. L.J. 241, 248–49 (2004); Sood, supra note 6, at 1598–99.

^ See, e.g. , Shari Seidman Diamond, Beth Murphy & Mary R. Rose, The “Kettleful of Law” in Real Jury Deliberations: Successes, Failures, and Next Steps , 106 Nw. U. L. Rev. 1537 (2012); Phoebe C. Ellsworth & Alan Reifman, Juror Comprehension and Public Policy: Perceived Problems and Proposed Solutions , 6 Psychol. Pub. Pol’y & L. 788 (2000); Laurence J. Severance, Edith Greene & Elizabeth F. Loftus, Toward Criminal Jury Instructions that Jurors Can Understand , 75 J . Crim. L. & Criminology 198 (1984); Peter Meijes Tiersma, Reforming the Language of Jury Instructions , 22 Hofstra L. Rev. 37 (1993).

^ See Sood, supra note 19.

^ Compare Open Sci. Collaboration, Estimating the Reproducibility of Psychological Science , 349 Science 943 (2015), with Daniel T. Gilbert et al., Comment on “ Estimating the Reproducibility of Psychological Science,” 351 Science 1037 (2016) (responding to Open Sci. Collaboration, supra ).

^ See Craig A. Anderson & Brad J. Bushman, External Validity of “Trivial” Experiments: The Case of Laboratory Aggression , 1 Rev. Gen. Psychol. 19, 20–21 (1997).

^ Marilynn B. Brewer, Research Design and Issues of Validity , in Handbook of Research Methods in Social and Personality Psychology 3, 12 (Harry T. Reis & Charles M. Judd eds., 2000); see also Anderson & Bushman, supra note 33, at 21–22; Brian H. Bornstein, The Ecological Validity of Jury Simulations: Is the Jury Still Out? , 23 Law & Hum. Behav. 75, 75–76 (1999); Shari Seidman Diamond, Illuminations and Shadows from Jury Simulations , 21 Law & Hum. Behav. 561, 563–67 (1997).

^ See, e.g. , Guthrie, Rachlinski & Wistrich, supra note 3, at 784; Dan M. Kahan et al., “ Ideology” or “Situation Sense”? An Experimental Investigation of Motivated Reasoning and Professional Judgment , 164 U. Pa. L. Rev. 349, 350, 391–97 (2016); Richard E. Redding & N. Dickon Reppucci, Effects of Lawyers’ Socio-Political Attitudes on Their Judgments of Social Science in Legal Decision Making , 23 Law & Hum. Behav. 31, 48–49 (1999); Holger Spamann & Lars Klöhn, Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges , 45 J. Legal Stud. 255, 256–59 (2016); Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding , 153 U. Pa. L. Rev. 1251, 1251–52 (2005).

^ Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings? , 93 Tex. L. Rev. 855, 892 & n.187 (2015).

^ Jeffrey Segal, Avani Mehta Sood & Benjamin Woodson, Does Crime Severity Influence Judges in Search-and-Seizure Cases? An Empirical Triangulation of Motivated Admissibility Decisions (June 30, 2017) (unpublished manuscript) (on file with the Harvard Law School Library).

^ See, e.g. , Kahan et al., supra note 35, at 353–54, 357–63.

^ See Wistrich, Guthrie & Rachlinski, supra note 35, at 1322; Wistrich, Rachlinski & Guthrie, supra note 36, at 900–01.

^ See Neil Vidmar, Civil Juries in Ecological Context: Methodological Implications for Research , in Civil Juries and Civil Justice 35, 57–64 (Brian H. Bornstein et al. eds., 2008); Segal, Sood & Woodson, supra note 37.

^ See, e.g. , Bornstein, supra note 34, at 87–88; Shari Seidman Diamond et al., Juror Discussions During Civil Trials: Studying an Arizona Innovation , 45 Ariz. L. Rev. 1 (2003).

^ Existing literature on the effects of group deliberation on legal judgments has been mixed. Compare, e.g. , Harry Kalven Jr. & Hans Zeisel, The American Jury 488–89 (1966) (finding little difference between pre- and post-deliberation jury decisions), and Norbert L. Kerr, Robert J. MacCoun & Geoffrey P. Kramer, Bias in Judgment: Comparing Individuals and Groups , 103 Psychol. Rev. 687, 687 (1996) (meta-analysis of empirical literature finding “no clear or general pattern” of “conditions under which individuals are both more and less biased than groups”), with Diamond, supra note 34, at 565 (providing examples of studies indicating significant effects of deliberation), and Jeffrey Kerwin & David R. Shaffer, Mock Jurors Versus Mock Juries: The Role of Deliberations in Reactions to Inadmissible Testimony , 20 Personality & Soc. Psychol. Bull. 153 (1994) (finding mock juries who participate in deliberations are more likely to follow instructions to ignore inadmissible information than mock jurors responding individually without deliberation).

^ Mark Costanzo & Daniel Krauss, Psychology and Law: A Cautious Alliance , in Forensic and Legal Psychology 4, 8 (2012).

^ Sood, supra note 6, at 1582–83 (reporting that “60% of participants in the heroin condition admitted the tainted evidence and construed its lawful discovery as inevitable, which was in significant contrast to the mere 15% of participants who did so in the marijuana condition but was not a uniform response to the more egregious crime”); see also Wistrich, Rachlinski & Guthrie, supra note 36, at 892.

^ See, e.g. , Elizabeth F. Loftus, Eyewitness Testimony (7th prtg. 1996); Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory , 28 Law & Hum. Behav. 687, 687 (2004); Elizabeth F. Loftus, 25 Years of Eyewitness Science . . . Finally Pays Off , 5 Persp. on Psychol. Sci. 556, 557 (2013); Nancy K. Steblay, Scientific Advances in Eyewitness Identification Evidence , 41 Wm. Mitchell L. Rev. 1090, 1092, 1126–28 (2015). The New Jersey judiciary, for example, has drawn upon this body of research to rethink its approach to eyewitness identification. See State v. Henderson, 27 A.3d 872, 877 (N.J. 2011) (calling into question “the current legal framework for analyzing the reliability of eyewitness identifications” based on “a vast body of scientific research about human memory” and a Special Master’s evaluation of this research, including “testimony by seven experts and . . . hundreds of scientific studies”); Supreme Court Comm. on Criminal Practice, Report of the Supreme Court Criminal Practice Committee on Revisions to the Court Rules Addressing Recording Requirements for Out-of-Court Identification Procedures and Addressing the Identification Model Charges (2012) (recommending changes to New Jersey court rules and jury instructions on eyewitness identification as called for by State v. Henderson ); Press Release, New Jersey Judiciary, Supreme Court Releases Eyewitness Identification Criteria for Criminal Cases (July 19, 2012), http://web.archive.org/web/20170509092130/http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.html (announcing publication of revised jury charges and court rules relating to eyewitness identification); Athan P. Papailiou, David V. Yokum & Christopher T. Robertson, The Novel New Jersey Eyewitness Instruction Induces Skepticism but Not Sensitivity , 10 PLoS ONE e0142695 (2015) (experimentally testing and providing a “mixed review of the efficacy” of New Jersey’s revised jury instructions on eyewitness testimony, id. at 16–17).

^ See Theodore Eisenberg, Why Do Empirical Legal Scholarship? , 41 San Diego L. Rev. 1741, 1743–46 (2004).

^ See, e.g. , Kang et al., supra note 5 (reviewing psychology literature on implicit bias, demonstrating its application to civil and criminal trials, and proposing intervention strategies to counter biases among judges and jurors); Sood, supra note 5 (analyzing studies on motivated cognition in legal judgments, proposing a framework for organizing this body of work, discussing its practical legal applications, and highlighting areas that require further investigation); see also Richard H. McAdams & Thomas S. Ulen, Symposium: Empirical and Experimental Methods in Law — Introduction , 2002 U . Ill. L. Rev. 791, 798 (encouraging law reviews to publish empirical literature reviews for “understanding the state of empirical knowledge in the legal area surveyed, and especially for determining what future empirical projects would be useful in a given area”).

^ See generally Robert J. MacCoun, Biases in the Interpretation and Use of Research Results , 49 Ann. Rev. Psychol. 259 (1998).

^ See James R. Acker, Social Science in Supreme Court Criminal Cases and Briefs: The Actual and Potential Contribution of Social Scientists as Amici Curiae , 14 Law & Hum. Behav. 25 (1990); see also Fed. R. Evid. 706 (allowing for court-appointed expert witnesses).

^ See, e.g. , Mark W. Bennett et al., How Can Social Science Improve Judicial Decision Making?, Panel at the American Association of Law Schools Annual Meeting (Jan. 4, 2017); see also Tracey L. Meares, Three Objections to the Use of Empiricism in Criminal Law and Procedure — and Three Answers , 2002 U. Ill. L. Rev. 851, 855 & n.12 (citing Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000); Martinez v. Court of Appeal of Cal., 528 U.S. 152, 164–65 (2000) (Breyer, J., concurring)).

^ See Terry Hutchinson, Empirical Facts: A Rationale for Expanding Lawyers’ Methodological Expertise , 3 Law & Method 53 (2013).

^ See, e.g. , Robert M. Lawless, Jennifer K. Robbennolt & Thomas S. Ulen, Empirical Methods in Law (2010 ) (casebook instructing law students on why and how to gather, evaluate, and communicate empirical data); Eisenberg, supra note 46, at 1742 (providing examples of law school initiatives for encouraging empirical literacy).

^ See sources cited supra note 4.

^ Justin McCrary, Joy Milligan & James Phillips, The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education? , 65 J. Legal Educ. 543, 544 (2016).

^ See id. at 570–71.

^ See, e.g. , Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts , 129 Harv. L. Rev. 2049, 2115–16 (2016); Allison Orr Larsen, The Trouble with Amicus Facts , 100 Va. L. Rev. 1757, 1804–08 (2014); Frederick Schauer & Virginia J. Wise, Nonlegal Information and the Delegalization of Law , 29 J. Legal Stud. 495 (2000).

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39 Empirical Research in Law
Empirical research in law is often critical of existing policy and practice, and that is appropriate since the research 'story' ought to provide an alternative to the accounts which emerge from government or, indeed, from practitioners. Empirical research, in other words, has a debunking tendency.
Harvard Empirical Legal Studies Series
The Harvard Empirical Legal Studies (HELS) Series explores a range of empirical methods, both qualitative and quantitative, and their application in legal scholarship in different areas of the law. It is a platform for engaging with current empirical research, hearing from leading scholars working in a variety of fields, and developing ideas ...
Empirical research in law
Undertaking empirical research in law can be a daunting task, one for which current undergraduate and postgraduate legal education does not provide a great deal of preparation. Yet the ability to undertake such research is valuable and, some suggest, in demand. Many areas of law, its operation and effects, can be usefully informed by empirical ...
Journal of Empirical Legal Studies
Journal of Empirical Legal Studies (JELS) fills a gap in the legal and social science literature that has often left scholars, lawyers, and policymakers without basic knowledge of legal systems.Always timely and provocative, studies published in JELS have been covered in leading news outlets such as the New York Times, the Wall Street Journal, the Economist, Forbes Magazine, the Financial ...
(PDF) Empirical research in law
Empirical research in law. Felicity Bell. To cite this article: Felicity Bell (2016): Empirical r esearch in law, Griffith Law Re view, DOI: 10.1080/10383441.2016.1236440.
PDF Law's Reality: Case Studies in Empirical Research on Law ...
law.1. During 2005, during the consultation stage of the inquiry, many people who spoke to the inquiry team said they were keen to do empirical research. on law, but felt they were not equipped to do it. If lawyers, they feared that. they did not have the requisite understanding of social science research.
Getting Started
Empirical Research in Law - International Law as a Case Study, Program at the American Association of Law Libraries Annual Meeting (July 10, 2006) Funding for Empirical Legal Research. Conducting empirical research often involves significant costs, including the costs associated with collection or accessing data. As a result, empirical ...
Center for Empirical Studies in Law
The Center for Empirical Studies in Law fosters data-driven research that tests such assumptions and works to train the next generation of lawyers in empirical techniques that play an increasingly prominent role in litigation. The center's affiliated faculty — with doctorates in economics, finance, political science and psychology ...
Empirical Research Services
In empirical legal research, content coding of natural language text is commonly employed (see Hall and Wright, 2008; Evans et al., 2007). Content analysis is a popular methodology which, for example, can be employed to summarize characteristics of interest related to court decisions. When possible, it is always best to have individuals other ...
Statistics and Empirical Legal Studies Research Guide
Empirical Methods in Law by Robert M. Lawless; Jennifer K. Robbennolt; Thomas S. Ulen Empirical Methods in Law brings the basic principles and concepts of social-science research to the desks of law students and lawyers who expect to work with data experts. Now available in a second edition, the updated text continues its focus on explaining basic principles and concepts in an intuitive style ...
Empirical Research Group
The Empirical Research Group supports student interest in empirical research in four primary ways: Offering Coursework: Faculty offer a variety of courses that provide the opportunity for students to develop the skills and knowledge to be able to conduct high level empirical legal research.; Enabling Participation in UCLA Law Research Projects: At any given moment there are dozens of ongoing ...
Center for Empirical Research in the Law
Center for Empirical Research in the Law. CERL's mission is to. Support data-driven research about the law, lawyers, legal institutions. Share data resources to promote access and understanding of the law. Examine law and policy on data science, machine learning algorithms, and AI. CERL's mission is to Support data-driven research about the ...
Empirical research in law
ABSTRACT Undertaking empirical research in law can be a daunting task, one for which current undergraduate and postgraduate legal education does not provide a great deal of preparation. Yet the ability to undertake such research is valuable and, some suggest, in demand. Many areas of law, its operation and effects, can be usefully informed by empirical research. This article suggests that the ...
PDF LAW IN THE REAL WORLD
• As practitioners and non-empirical legal scholars come to realise the ways in which empirical legal research enriches the study and practice of law and the development of doctrine, they too add to the demand for more research. 3. Empirical legal research is now recognised as having a central position in legal scholarship2 alongside
Empirical Research in Law
Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly … Expand. 5. PDF. Save. The Relationship between Empirical Legal Studies and Doctrinal Legal Research.
The Contribution of Empirical Research to Law
Over the last decade empirical legal studies have become a popular subfield of legal research. Legal scholars have increasingly begun to employ social science research methods in their attempts to provide answers to research questions in the field of law. The goal of empirical legal research is to make a contribution to all subjects and phenomena that are of interest to law and for which no ...
(PDF) The Contribution of Empirical Research to Law
This research is empirical legal research which is a case study, using a qualitative approach. The author delves into the data needed by conducting in-depth interviews with the subject under study.
Applying Empirical Psychology to Inform Courtroom ...
The rapid growth and increasing accessibility of such research may call for legal checks on the judiciary's use of it, such as notice to the parties and opportunities to rebut. 57 However, with appropriate safeguards both in the scientific generation of the data and in its legal applications, empirical psychology can provide valuable insights ...
Statistics and Empirical Legal Studies Research Guide
Statistics for Lawyers by Michael O. Finkelstein; Bruce Levin This text is designed to introduce law students, law teachers, practitioners, and judges to the basic ideas of mathematical probability and statistics as they have been applied in the law. The third edition includes over twenty new sections, including the timely topic, like New York City police stops, exonerations in death-sentence ...