Academic

Suchman & Mertz on Empirical Legal Studies and the New Legal Realism

By Lawrence Solum

Mark C. Suchman (Brown University) & Elizabeth Mertz (University of Wisconsin - Madison) have posted A New Legal Empiricism? Assessing ELS and NLR (Annual Review of Law and Social Science Vol. 6, pp. 555-579, 2010) on SSRN. Here is the abstract:

The past decade has seen a return of interest in empirical research within the U.S. legal academy, hearkening back to a similar empirical turn during the ascendancy of Legal Realism in the New Deal era. However, the current revival of legal empiricism has emerged against the backdrop of several well-established traditions of empirical socio-legal research both in the interdisciplinary law-and-society movement and in the social science disciplines themselves. This article examines two of the most prominent manifestations of the "new" legal empiricism, Empirical Legal Studies and New Legal Realism, and it situates them in the pre-existing socio-legal terrain. The analysis concludes by considering different possible futures for empirical law studies.

And from the paper:

In the short run, at least, the most immediate relationship that the NLR and ELS movements will need to navigate is the relationship with each other. The assertion that NLR and ELS can be understood together as a ?new legal empiricism? constitutes at least a tacit claim that their mutual affinities outweigh their antagonisms; however, this is hardly a self-evident proposition. As the preceding overviews suggest, the two have substantial differences as well as substantial similarities, and the relationship that emerges between them could range from symbiotic to commensalistic to conflictual.

The most obvious difference between the two movements centers on their distinct approaches to matters of research methodology. Both profess to be ?empirical,? but as several recent articles have noted, in the context of legal scholarship one cannot take the meaning of ?empirical? for granted (Trubek 1984; Diamond 2002; Heise 2002: 820; Chambliss 2008: 31; Mitchell 2004:197-199;). According to standard dictionary definitions, ?empirical? means simply ?relying on or derived from observation or experiment,? and ?empiricsm? means simply ?employment of empirical methods, as in science.? Or as Mitchell, an ELS participant, puts it:

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  [T]he basic point of separation between empirical and non-empirical research is the role that observations play in the research: empirical research [is]explicitly founded on direct observations of the world or inferences from observations; non- empirical research does not pretend that its claims about the world are founded on anything other than imagination, supposition, or logic. (Mitchell 2004:197-198)

Used in this sense, legal empiricism would seem to encompass any systematic, evidence- based study of law, whether the evidence was contemporary or historical, quantitative or qualitative, observational or archival, material or cultural -- and whether the purpose was exploratory or confirmatory, theory-driven or policy-driven, descriptive or prescriptive.

Whether you are inside one of these two tents or only curious about the big picture in empirical legal research, you will want to read this compact and elegant paper.  Highly recommended.  Download it while its hot!

Full post as published by Legal Theory Blog on November 19, 2010 (boomark / email).