Abstract and Keywords
The Introduction starts by discussing the history of Empirical Legal Studies (ELS). It explains how the editors came about compiling this book. It talks about interest in empirical legal research and how it is not confimed to the United States, the UK or common law countries. Australia, Canada, the Netherlands, Belgium, Germany, Spain, Israel, Russia, and Japan are mentioned. This book aims to provide succinct discussions and analyses of debates, controversies, methods, and trends in scholarship that are original and searching but also easily accessible. The Introduction goes on to explain the perspective taken and coverage given in this book.
In the American legal academy, empirical research gained contemporary prominence in the late 1990s. The early years of the first decade of the twenty-first century saw the emergence and rapid development of a movement that labeled itself “Empirical Legal Studies” (ELS). In the original proposal for this volume its title referred to “empirical legal studies.” However, as the project evolved we decided against associating it with ELS in particular. We thought it important explicitly to acknowledge the diversity of approaches to and sites of empirical investigation of law, legal systems, and other legal phenomena. In particular, there are at least three approaches and research groupings that predate the contemporary ELS movement, which may be respectively identified as socio-legal/law and society (an interdisciplinary movement with strong roots in sociology but including scholars from a wide range of traditional disciplines including law), empirically oriented law-and-economics, and judicial behavior /politics. While some researchers working in these traditions see themselves as part of the new ELS community, many others do not. The phrase “empirical legal research” in the title, The Oxford Handbook of Empirical Legal Research, is designed both to reflect and to celebrate the healthy pluralism of empirical approaches to the study of law and legal phenomena.
American legal realists were, perhaps, the first to appreciate the value and importance of, and to promote, study of “law in action” as opposed to “law on (or ‘in’) the books.” As described in Chapter 36 of this book, the earliest work in the United States included crime surveys in the 1920s and 1930s, and studies in the 1930s of court dockets and auto accident compensation. The genesis of empirically based studies of judicial behavior is commonly traced to the pioneering work of C. Hermann Pritchett in the late 1940s. Jury studies gained prominence through the Chicago jury project led by Harry Kalven and Hans Zeisel in the 1950s. In Britain, a major event in the development of empirical legal research was the establishment in 1972 of the ESRC-funded Oxford Centre for Socio-Legal Studies. The British Journal of Law and Society, now simply the Journal of Law and Society, first appeared two years later. At around the same time, the Royal Commission on Civil Liability and Compensation for Personal Injury, popularly known as the Pearson Commission, commissioned the first large-scale empirical investigation of the civil justice system in England and Wales, and this was soon followed by the work of the Royal Commission on Legal Services (the “Benson Commission”). The Socio-Legal Studies Association (SLSA) was founded in 1990 to enable socio-legal scholars to meet and disseminate their work, much of which is empirical. The UK Home Office (like the U.S. Department of Justice) has been a major funder of research into the criminal (p. 2) justice system since the 1970s. UK universities now host various multi-disciplinary empirical legal research centres. In the United States, early centers of contemporary empirically oriented legal research included the University of California at Berkeley, the University of Wisconsin at Madison, and the American Bar Foundation (with links to both Northwestern University and the University of Chicago). The Law and Society Association was founded in 1964, and the Law & Society Review, the journal of the Association, began publication in 1967. The Law and Courts section of the American Political Science Association was established around 1982. In recent years a growing number of U.S. law schools have attracted groups of empirically oriented scholars.
While empirical research on legal phenomena can be found throughout the twentieth century, in very recent years—as already noted—there has been a marked increase in the vibrancy of empirical legal research, particularly within the U.S. legal academy. In 2004 the Journal of Empirical Legal Studies was established, edited at Cornell Law School. This journal was designed specifically to appeal to legal academics doing or interested in empirical research. The First Annual Conference of Empirical Legal Studies was held at the University of Texas Law School in October 2006, and the ELS conference is now an annual event. The situation in the UK is somewhat different. November 2006 saw the publication of the Report of The Nuffield Inquiry on Empirical Legal Research entitled Law in the Real World: Improving our Understanding of How Law Works and written by Professor Dame Hazel Genn and Professors Martin Partington and Sally Wheeler. The motivation for the inquiry was a concern that despite high levels of activity in the empirical legal research community, there are not enough producers of empirical legal research in the UK to meet current and likely future demand, and that there may not be a “robust successor generation of trained empirical legal researchers” available to take the place of senior scholars likely to retire in the next decade or so. Although the report focused on research on the civil rather than the criminal side, it witnesses a perception of the growing importance of empirical legal research in all areas.
A lively interest in empirical legal research is by no means confined to the United States and the UK or to common law countries. There are active communities of empirical legal scholars in Australia and Canada. In the civil law world, empirical legal research conducted over the last 20 years or so can be found in a number of countries including the Netherlands, Belgium, Germany, Spain, Israel, Russia, and Japan. International organizations such as the World Bank have sponsored empirical legal research in various countries (e.g., Argentina, Bangladesh, Brazil, Dominican Republic, Ecuador, Georgia, Mexico, Peru, the Philippines, and Russia) in pursuit of the goal of improving legal systems as a means of encouraging economic investment and reducing poverty.
A feature of every truly successful intellectual movement is the ability to communicate its core ideas and methods, and the nature and significance of its achievements, to a wide audience beyond the movement's active practitioners. This is a task to which the broad community of empirical legal researchers has not so far devoted (p. 3) as much energy as it deserves. One of the important points made in the Nuffield Report is that there is no strong culture of empirical legal training and research in UK law schools. This is partly because there is a lack of empirical legal literature directed to “mainstream” legal scholars, many of whom remain more or less ignorant of the importance and value of empirical research and may find empirical legal scholarship difficult and somewhat mysterious. More generally, the lack of a widely appealing and accessible literature helps to explain why empirical legal research has a low profile in the UK legal academy and (except on the criminal side) is almost entirely absent from the law school curriculum. In the United States, law schools are just beginning to think about how empirical legal research activities can be integrated into the law school curriculum; and while texts on law and social science have been around since at least 1969, the first law school text intended specifically for courses on empirical legal studies, Empirical Methods in Law by Robert M. Lawless, Jennifer K. Robbennolt, and Thomas S. Ulen, appeared in late 2009.
Our aspiration is that this volume should make a significant contribution to informing and educating both scholars (whatever their disciplinary identification and in whatever research tradition they operate) and students—especially law students—about empirical legal research. It also aims to provide scholars who may be interested in undertaking empirical research about law with inspiration and resources for attempting the difficult transition from doctrinal or theoretical, library-based research to empirical research. More than that, we hope and expect that the book will find an audience beyond the academy in government, the public policy sector and the wider community.
The Oxford Handbook of Empirical Legal Research has been designed to promote a prime aim of the Oxford Handbook series, which is to provide succinct discussions and analyses of debates, controversies, methods, and trends in scholarship that are original and searching but also easily accessible to readers who are less familiar with the particular subject area. Handbooks aspire to challenge and stimulate the experienced and knowledgeable while at the same time informing and inspiring the uninitiated and the less experienced. Of course, there is already a large body of empirical legal literature, but on the whole it reports the results of particular empirical research projects, and its typical target audience consists of other empirical scholars. There is little truly outward-looking literature that aims to educate and inform a wider audience and to encourage the development of empirical research skills and activity by celebrating the achievements of empirical legal scholarship. This Handbook is designed to start the process of filling this gap in the literature.
It is important to say something about how we understand the term “empirical.” Many of those associated with the ELS movement that originated in the United States at the beginning of the twenty-first century equate empirical work with research that employs statistical and other quantitative methods. However, this understanding is by no means universal, and empirical legal research employing a mix of qualitative and quantitative social science methodologies long predates the contemporary (p. 4) ELS movement. Interestingly, the strongest advocates of equating “empirical” with “quantitative” are scholars within law faculties, many of whom lack advanced training in social science. Among those with social science training, whether in law faculties or social science faculties, “empirical” is usually understood to include both quantitative and qualitative approaches. This is not to say that some scholars trained in social science do not have strong preferences as between qualitative and quantitative approaches. However, while social science departments have long included statistics and quantitative research methods courses in their curriculums, in the past 20 years the number of courses devoted to qualitative methods has increased significantly in U.S. social science departments, particularly in the fields of sociology and political science.
In this volume, we have adopted a broad perspective on what constitutes “empirical” legal research. Specifically, we have sought to include both quantitative and qualitative social science research within the label “empirical legal research.” Nonetheless, readers of this Handbook will find that quantitative research dominates in many of the chapters (and that some chapters refer exclusively to quantitative research). To some extent, this dominance reflects the preferences of individual authors, but it is also a function of the nature of existing empirical research in particular areas.
For our purposes, “empirical” research involves the systematic collection of information (“data”) and its analysis according to some generally accepted method. Of central importance is the systematic nature of the process, both of collecting and analyzing the information. The information can come from a wide range of sources including surveys, documents, reporting systems, observation, interviews, experiments, decisions, and events. While the data can be retained as text or images, systematic analysis will often involve coding or tagging units of text or images using symbols that may or may not have numeric properties (in the sense that they can be manipulated algebraically, or compared in terms of absolute or relative size). The analysis can involve simple counting, sophisticated statistical manipulation, grouping into like sets, identification of sequences (in some circumstances called “process tracing”), matching of patterns, or simple labelling of themes. Ultimately, the analyst engages in a process of interpreting the results of the analysis in order to link those results to the question motivating the research. In some instances the interpretation flows clearly from the results, but in others it is more fragile and reflects not only the results of the analysis but also other information that the analyst brings to the work.
We have deliberately omitted from the project two categories of work that some might argue fall within the concept of “empirical” research we have described above. The first category comprises traditional historical studies. We have omitted legal history from the Handbook simply because it is a discrete, long-established field of research with its own norms, methodologies, and standards. Some empirical legal researchers use historical materials and may employ historiographical methods, but (p. 5) they tend not to label what they are doing as “legal history”. Typically such research begins with an hypothesis of the sort associated with social science and uses historical information as its data.
The second category of research we have omitted is traditional analysis of formal legal documents—primarily court decisions (“cases”) and legislative materials. One reason for omitting such work is that scholars who work primarily with documentary legal materials typically describe what they do as “legal analysis” rather than “empirical legal research.” Conversely, scholars who describe their research as “empirical” would typically not regard traditional legal analysis as empirical. Of course, this distinction between analytical and empirical legal research is not clear-cut, and there are many examples of scholarship that straddle the line between the two by going beyond the formal legal documents themselves to examine their broader social, economic and political context and operation. Conversely, formal legal documents may provide relevant data for empirical investigation of certain legal phenomena such as judicial behavior. If the relationship between analytical and empirical research is understood as a spectrum, this volume concentrates on work at the empirical end of that spectrum. Another reason for not including traditional analytical legal scholarship is that this genre of research is the subject matter of The Oxford Handbook of Legal Studies (2003).
In fairness to our authors, we need to say something about the brief they were given. They were asked to provide not surveys of the available research or literature reviews but rather concise, original, and critical discussions of work that they consider to have made a significant contribution to our understanding of the various topics covered in the Handbook. They were also asked to identify gaps in the extant body of research and possible topics for future research. Because this book is aimed at an international audience, our contributors were encouraged to cast their nets widely and not limit discussion to research done in their own country or concerned with their own legal system. That said, the common-law, English-speaking world has so far produced much more empirical legal research than the civil law world; and within the common law world, much more empirical research has been produced in the United States than anywhere else. These facts are reflected both in the list of contributors and in the substance of the various contributions. The reasons the United States dominates in this area (as in so many others) are, no doubt, various and complex. One may be that law is a graduate school in the U.S. tertiary education system, and the number of law faculty members holding both JDs and PhDs in some other discipline (particularly one of the social sciences) has risen sharply over the last 15 years. Another obvious explanation is that because courts in the United States are understood to be essentially political institutions, U.S. political scientists are much more interested in judges and judicial behavior than their counterparts in the rest of the common law world: Law and Courts is one of the largest Sections of the American Political Science Association. This general topic is one that deserves much more attention than it receives in this volume.
(p. 6) More technically, authors were asked to reduce the number of footnotes to an absolute minimum, and to write as accessibly as possible for the non-specialist reader. The Handbook is meant primarily not for established producers of empirical legal research but for consumers, potential consumers and aspiring producers. Contributors were expected to observe allocated word limits, which reflect arguably contestable editorial judgments about the relative quantity, significance and vibrancy of research in particular areas. It should also be emphasized that authors were asked to refer by name to no more than 50 pieces of scholarship. Some found this limitation irksome and challenging, although in the end all managed to work within or close to it. The rationales for the limit were to encourage contributors to give their own personal account of scholarship in their area and to relieve them of the need to be comprehensive or “balanced.” We wanted them to identify themes and trends rather than to recount or focus on individual pieces of research. Inevitably, there will be considerable room for disagreement about the items that should or should not have been included in the lists of references in the various chapters, and also about the various authors' perspectives on the bodies of research they discuss. The lists of references should not be thought of as encapsulating the authors' answers to some question such as “what are the fifty most important pieces of empirical research in your area?” Rather, the references will most likely have been chosen for their aptness to support the particular argument an author has chosen to make about scholarship in the field.
In planning the Handbook we tried to ensure coverage of all areas and legal phenomena on which a significant amount of empirical legal research has been conducted and reported. Inevitably, however, there are topics that might have been included but which did not make it into the book, some as a result of a judgment on our part that there did not seem to be a sufficient body of empirical work to warrant extended treatment, some because we did not think of them at the time we planned the volume, and some simply because we could not include everything.
One topic omitted because of lack of a body of relevant empirical research is antitrust/competition law. Interestingly, this is an area where empirical research is regularly employed to assess whether violations of law have occurred and to determine damages for such violations. There is a small body of literature about how to conduct empirical analyses for such use. However, we were unable to locate a substantial body of empirical research on the application or impact of antitrust/competition law, and hence we decided not to include a chapter on this topic. A second topic, which in retrospect we might have included, is legal consciousness, perhaps coupled with the closely related topic of legal culture. Both topics make an appearance in several chapters, but none is devoted entirely to them even though there is probably a sufficient literature to have justified a chapter, as well as a growing interest in the study of legal consciousness and how it can yield insights into legal culture.
A third area that, with the benefit of hindsight, was a strong contender for inclusion is insurance and insurance law. In practice, insurance is central to the operation (p. 7) of the law of personal injury compensation (which receives some attention in the chapter on personal injury litigation). However, it is also important in various other areas including corporate malfeasance, professional regulation, social welfare law, and environmental law. Moreover, insurance companies are themselves heavily regulated, and hence research on the success or failure of such regulation is of considerable significance.
Other topics that might have been covered include election law; intellectual property (patents, copyright, and trademark), and, more broadly, the interface between law, and science and technology; and tax law. We planned a chapter on the use of empirical methodologies in program and policy evaluation, but in the end were not able to include it. Individual readers will, perhaps, be able to identify other significant omissions. We accept full responsibility for inclusions and omissions while reiterating that this volume is intended as a first contribution to the promotion and wider dissemination of empirical legal research rather than the last word.
Our sincere thanks are due to John Louth, who was extremely supportive in the early planning stages, and to Alex Flach, who took over responsibility from John in the course of the project. We owe very special thanks the Ros Wallington who, as ever, provided efficient and cheerful administrative support; and to all those involved in the production of this major undertaking. But above all, we are indebted to those without whom this volume could not have been produced—our authors—not only for their excellent contributions but also for their patient and flexible responses to our numerous editorial demands and high expectations.
Peter Cane and Herbert M. Kritzer
Canberra and Minneapolis
February 2010 (p. 8)