Empirical Scholarship: What Should We Study and How Should We Study It?
By N. William Hines
I first attended an AALS Annual Meeting at the classy Edgewater Beach Hotel in Chicago in December 1961. Sam Thurmond succeeded Page Keeton as AALS President at my first meeting, and I remember thinking: “I wonder what these charming gentlemen had done to merit election as AALS President?” I now think I know the answer, based on my own long experience. They did their best to live up to the high standards of the legal academy throughout their careers, toiled loyally in a variety of service roles on behalf of the AALS, and then they got a lucky roll of the dice in the Nominating Committee.
The truth is that in any year there are literally hundreds of colleagues in the legal academy who deserve the honor that is conferred on me today. I humbly accept the leadership responsibilities as AALS President for 2005 in the knowledge that there are lots of men and women in this room who could do the job as well or better than I will.
At this point I would be remiss not to pay tribute to the tremendous examples of leadership set by my immediate predecessors as 21st Century AALS presidents. Mary Kay Kane led us in a reexamination of our organizational mission through which our core values were identified; Dale Whitman Dale Whitman invited us to contemplate the implications for our teaching and scholarship of the rapid globalization of law and legal practice in the 21st Century; Mark Tushnet successfully directed our attention to the Association’s unique responsibilities and challenges as a learned society of law scholars; and Gerald Torres extended the emphasis on scholarship to explore the depth of our professional engagement with the world around us. Over the past three years I have been privileged to work closely with this quartet of extraordinary leaders, with an Executive Committee of outstanding colleagues, and with a wonderfully able AALS staff, led by the incomparable Carl Monk, who I am delighted to report recently agreed to extend his service as Executive Director for three more years. Deputy Director Joyce Saltalamachia and Associate Director Jane La Barbara have done their best to keep us all well informed about AALS business and to keep the organization’s wheels turning smoothly. If I am not now fully steeped in the values of the Association and versed in its inner workings, the fault is mine and not my terrific mentors. I also wish to express my deep appreciation to my Iowa faculty colleagues who allowed me to serve as their dean for 28 years, and thereby achieve the visibility that made today’s recognition possible.
In preparation for this talk, I read the inaugural addresses and quarterly president’s messages of the last 20 AALS Presidents. If you ever feel the need to have your sense of purpose reinforced or your excitement about being a law professor reenergized, I highly recommend pulling these essays off the shelf in your law library and reading them. Whether it is Roger Cramton urging greater daily professional involvement with our students; Herma Hill Kay and Greg Williams making the case for the multiple benefits from increased emphasis on diversity within our law school communities; Bob Gorman designing the bridges the legal academy must build to connect more closely with the practicing bar; Deborah Rhode emphatically reminding us that values relating to ethics and professional responsibility lie at the heart of our educational mission; John Sexton assaying the meaning for legal education of the increasingly international orientation of the legal community; or Elliot Milstein waxing eloquently on the need to stress a transcendent concern for social justice in our classrooms and clinical programs, these essays are thoughtful, beautifully crafted and many of them are truly inspirational. As is our custom, each of the past 20 AALS Presidents announced a specific theme or emphasis for her or his year in office, and made constructive proposals for the improvement of legal education in relation to the specific theme selected. Not surprisingly, all six of what we now denominate as our “Core Values” reverberate regularly throughout these presidential messages.
When it came time for me to select the topic that will be the central theme of my presidential year, I was stymied for quite some time. My problem wasn’t that I could not think of any theme, it was rather that I had in mind four possible themes and could not for the longest time choose the one that best matched the Association’s interests with my ability to provide useful contributions to the conversation I wished to initiate. I’m sure many of you have had the experience of coming up with what sounded like a great title for a project, then faltered in trying to figure out how to move from the topic to the production of a full-blown scholarly paper. Let me share with you the three theme titles I finally rejected and invite you to imagine how they might have been developed in ways that would engage the interests of a substantial segment of our academic colleagues.
My first idea was “Teaching Leadership?” in which we would have explored what we should do or could do in law school to better prepare our graduates for the societal leadership roles most of them will be expected to assume in the communities in which they work and live. There is a growing body of literature exploring the question whether leadership ability is something people are born with or is a learned behavior that can be positively affected by imaginative educational strategies. My second idea “Ethical Values,” picked up on the mantra of “Moral Values”, which was overused in the recent political campaign, and would have revisited questions revolving around our institutional responsibility to better educate our students in the broad realm of ethics and integrity, beyond drilling them on codes and regulations of professional conduct. We are, after all, still trying to settle upon a meaningful role for law schools to play in the professionalization of the next generation on lawyers. My third idea stemmed from a widely shared observation that many of our students come to law school with impressive records of volunteer service and commitments to social justice causes, but seem to lose their passion to help others somewhere during their three years with us. I tentatively titled this theme “Retaining Idealism” and had in mind thinking about strategies to enhance both students’ and faculty members’ actions devoted to helping those in need of legal services. I do not intend to give up completely on these rejected themes, but plan to address them more fully in my quarterly President’s Message columns in the AALS Newsletters during 2005.
In selecting my theme for 2005, I finally decided to stick for a third year with the ongoing exploration of ways our Association might further solidify the claim that we are indeed THE learned society of scholars for the discipline of law in the United States. As mentioned earlier, in 2003 Mark Tushnet initiated discussions about how the AALS could function more effectively as a learned society of legal scholars. In 2004 Gerald Torres built on this theme by inviting us to consider how to create greater engagement between our scholarship and our obligations as members of a profession that seeks practical results in terms of reforms to make the law more just and the administration of justice more accessible and efficient. My contribution to this trifecta devoted to elaborating our role as a society of scholars will be to focus attention on the empirical dimension of our scholarly research. My theme for AALS during 2005 will be “Empirical Scholarship: What Should We Study and How Should We Study It?”
Let me define what I mean when I refer to empirical scholarship. I wholeheartedly subscribe to Gerald Torres’ assertion in his presidential address last year that good legal analysis requires that theory, doctrinal principles and facts be inextricably intertwined. Getting the facts right is often the hardest part of a legal scholar’s task, yet many of us are unprepared to search out the relevant facts in their raw form. This is where empirical research has a valuable role to play in legal scholarship.
Interestingly, there seems to be an ongoing debate carried on in the law journals over what exactly qualifies as empirical legal research. Some scholars are arguing to limit empirical research in law strictly to the application of statistical analysis to large bodies of hard data. Other scholars contend all legal scholarship that is not purely normative or formally doctrinal should count as empirical. Number crunching large databases, whether the raw data was collected by the researcher or by others, certainly may be a dominant strain of empirical legal research today, but it certainly has not cornered the market for facts useful to legal scholars or law reformers. On the other hand, I have a hard time thinking every article that counts cases, argues from an assumed set of facts or cites someone else’s empirical study qualifies as empirical scholarship. Still, I want to approach this topic as broadly as possible, without losing touch with the conventional understanding of when legal scholarship is empirical—when the research on which it is based is primarily conducted outside materials available in the law library. To my way of thinking, research is empirical if it involves a systematic investigation of real world facts or actual societal functioning, whether by quantitative or qualitative methods, for the purpose of making law more effective and just or the administration of justice more fair. Roscoe Pound got this idea right many years ago, in my view, when he dubbed this scholarly pursuit “Law in Action” research.
Empiricism is a topic with which I have some personal history, but my experience is admittedly a bit dated. Back in the late 1960s, I had a strong desire to investigate the accuracy of factual assumptions underlying the law governing intergeneration wealth transfers and the private development of publicly owned natural resources, but did not know quite how to go about it. I then had the good fortune to be invited to attend a terrific summer camp for young law teachers sponsored by the Sage Foundation, entitled Social Science Methods In Legal Education (SSMILE). This intensive month-long program was specifically intended to enhance the research skills of self-taught empiricists like myself by exposing us to the best empirical scholarship of the time and introducing us personally to some of the leading lights of empirical research about the law. These experts then worked with us individually to refine the specific empirical project we brought to camp. Our teachers were eminent scholars like Harry Kalven, who with his Chicago colleague, Hans Zeisel, had just published the classic study, “The American Jury”; Jerome Skolnick, a widely respected researcher who specialized in studying the criminal justice system; and a world-class statistician from Columbia named Alan Barton. The skills I learned at the SSMILE Program truly shaped my subsequent career as a legal researcher. It was a shame the funding for the SSMILE Program dried up after only a few years. Who knows how many more empiricists would have been created within the legal academy if this ambitious program had kept going over the past 35 years?
I do not mean to suggest by this nostalgic reference to the good old days that empirical research in law slowly died out after the SSMILE program terminated. It is true that essays have appeared regularly over the years in the Journal of Legal Education and elsewhere lamenting the low output of empirical work in law, and an informal survey of prominent legal scholars in the mid-1990s revealed a near consensus that there was a need for a much greater emphasis on empirical research in law. A quick look at the recent scholarly record, however, reveals that empirical research in law is alive and flourishing in the 21st Century. One need only examine the numerous publications of the American Bar Foundation and Law School Admission Council to appreciate that empirical research is dominant in some law-related sectors. More traditional empirical research in law may have chugged along slowly in the past, but today it appears to be attracting more devotees than ever before among contemporary legal scholars. In the past five years there has been a substantial upturn in scholarly publications based on empirical studies, including several symposia in major law reviews. There has been an even more impressive increase in writings about empirical research in the law and how it is used and arguably misused. In 2002 the Chicago Law Review published a symposium devoted entirely to issues related to empirical research methodology, in which one pair of co-authors asserted that the increasing amount of modern empirical research in law was so flawed it should be place in intellectual “receivership”—an unjustifiably harsh assessment, I should think. A review of the Program for this annual meeting reveals no less than eight sessions in which some form of empirical research results are presented.
It is not surprising to discover that empirical scholarship in law may be in a growth mode. Over the past two decades there has been a substantial increase within the legal academy of scholars trained jointly in law and a related social science discipline. Certain types of empirical research have also benefited greatly from the revolution in electronic data processing, which has made studying large data bases much more manageable and less time consuming than it was a generation ago. The emergence of an empirical bent among the burgeoning law and economics cohort, the recent flourish in non-traditional analysis of legal decision making, expanding experimentation with alternative dispute resolution techniques, and the gradual growth in law and society scholars interested in empirical studies have added empiricists to the ranks of many law school faculties. Also, until the recent curtailment in research funding across the board, external funding for quantitative research in law, though never abundant, was more readily available than for library research.
My overall sense is that empirical research is in subtle ways also more respectable in the law school world than it was a generation or two ago. A significant number of important empirical projects have been published recently, which have provided blueprints for needed law reform. Most leading law schools now boast highly regarded scholars who regularly undertake empirical studies in their specialty fields. Modern casebooks and texts our students study now frequently cite and describe relevant empirical studies. There are even how-to books available that instruct lawyers in the organization and execution of quantitative research projects and statistical analysis of their results. A summer program has sprung up recently at Washington University to train lawyers in quantitative research methods, and a new peer-reviewed journal devoted exclusively to empirical scholarship recently began publication at Cornell.
If as it appears, empirical research is gaining momentum with our faculty colleagues, I propose it is high time this special mode of legal research merits a closer look by our society of learned scholars within AALS. There is so much we do not know about the state of empirical research in the legal academy today because we have never before conducted a national assessment. It would be very useful, in seeking to develop a more accurate picture of current legal scholarship, to create some benchmarks for empirical research so we can know how much is really going on, who is doing empirical research in what specific fields of law, and which research methods they are employing. In a very real sense, what I am proposing is that AALS undertake an empirical study of the status of empirical research in the legal academy.
A second reason AALS attention to empirical scholarship is timely comes from reports from recent conferences and workshops organized by AALS that suggest interest in empirical research is growing among newer teachers in our ranks. If this is true, it makes good sense for our national organization, which wants to emphasize its mission as a scholarly society, to encourage young scholars to investigate this useful, but sometimes risky, mode of legal research. Providing opportunities for young scholars to learn more about the value and rewards of empirical scholarship accords perfectly with the views expressed some years ago by one of my heroes in law teaching, the legendary Clark Byse. Here is what Clark said in an endowed lecture at the University of Iowa in l988.
“To what extent, if at all, should each of us in pursuing our scholarly agenda endeavor to become informed concerning, and make use of, empirical research and the methods, theories and subject matters of the social sciences? On the surface, to put the question is to provide the answer: of course, legal scholarship should explore legal problems in context and should utilize allied fields of knowledge, for law is a means of achieving society’s objectives. As those objectives or social conditions change, the law perforce also must change; in addition, as a rational system of social control the legal system must consider whether it is achieving its stated objectives and at what cost. From this standpoint, the legal scholar who confines law scholarship to the law library would be irresponsible” I do not think, in this strong endorsement for law in action research, that Clark meant to suggest that we all must undertake empirical research, only that we should all be aware of its great utility and respectful toward those colleagues who do it.
The third reason I think Empirical Scholarship will make a good AALS theme is that, like Gerald’s 2004 theme of Engaged Scholarship, it has extremely wide application within our learned society of legal scholars. Whatever one’s substantive or procedural field or school of contemporary legal thought, it is not difficult to imagine empirical studies that would enrich the scholarly debate or focus the legal analysis. Virtually every section in the Association should find it interesting to survey how much empirical work is going on in its field, to discuss the quality and usefulness of it, reflect on where more such work might be beneficial and to think about how to encourage the needed research.
Finally, increasing through AALS auspices the attention legal scholars pay to the way in which law impacts real people, and how key functionaries in the legal system carry out their responsibilities, will almost certainly help bridge the chasm that many commentators assert has developed of late between the legal academy and the practicing profession. One of Gerald’s avowed goals for this past year’s emphasis on Engaged Scholarship was to help close this gap between the academy and the bar. I have no doubt that theoretical and doctrinal scholarship will continue to dominate our scholarly output, but the more our scholarship connects with the professionals charged with making the law and legal system work, the better we will gain essential allies in meeting our fundamental obligation to improve the legal profession through legal education.
To sum up, what I want us to do during the next year is to encourage faculty members throughout our Association to think broadly and creatively about the place of empirical research in the 21st Century legal academy. How much empirical research is actually being conducted, by whom and in what fields? What is the quality of the research being done and how can it be improved? In what fields is a greater emphasis on empirical research warranted and what, if anything, can AALS do to stimulate scholars to undertake needed research? My fond hope is that by the time of the 2006 Annual Meeting our conversations about empiricism will have progressed to the point that we will have one plenary session showcasing examples of the best executed contemporary empirical research projects in law, and a second plenary panel devoted to assessing promising areas across multiple legal fields where empirical research would be most valuable to understand developing social problems and support needed law reform. As a dedicated, yet practical, empiricist, I will count my presidential year a success if I can at least reinforce within the legal academy a better awareness about the potential value of empirical studies and thereby assure a more secure place at the legal research table for empiricists of all stripes. I look forward to working with you in shaping our inquiry into the role of empirical scholarship in our learned society, and will welcome suggestions about how best to proceed.