Tuesday, September 05, 2006

The Vast Universe of Empirical Legal Scholarship

The increasing attention being given to empirical legal scholarship – while a welcome change after years of neglect - sometimes leaves new professors with the impression that empirical work and traditional theoretical work are distinct or even opposing approaches to legal scholarship. That impression is unfortunate. Some of the best work being done by high-profile legal scholars today gently incorporates empirical data into traditional theoretical work. Michael Gerhardt’s latest piece is an example of this. Gerhardt argues that constitutional decisions made by non-judicial actors create a type of legal precedent that is as pervasive, influential and durable as court-created precedent. In doing so, he uses empirical data to show both the relatively limited nature of the Supreme Court’s exercise of judicial review, and the Court’s general deference to state and federal law-makers. The paper is not itself "empirical", but it uses readily available empirical data to supports its theoretical argument – resulting in what could be called “realty-based theory.”

2 Comments:

Blogger Miguel Schor said...

I love your call to arms about the importance of empirical work in legal theory. I had a question, however, about your suggestion that Gerhardt's latest work is not strictly speaking empirical. While I haven't read the article (I've only reached the downloading stage), I have read his book on the Federal Appointments Process. I would characterize his work as qualitative rather than quantitative. I think of my own work, which is comparative, as being qualitative as well. Comparative work is empirical and tends to be qualititative rather than quantitative. Are you arguing that empirical scholarship strictly speaking is quantitative?

9/05/2006 10:56 AM  
Blogger Lori Ringhand said...

Miquel raises a great point. I deemed Michael Gerhardt's piece "not strictly empirical" simply because it is presented and reads as a traditional law journal article, rather than a numbers-heavy political science style piece. In doing so, I had not intended to designate scholarship as "empirical" (or not) using a quantitative standard, although I see how the comment could be taken that way. The essential point - one I am sure Miquel and I agree on - is that all law scholars should embrace empirical data when it is relevant to their point - something Gerhardt's new article does beautifully.

9/06/2006 7:05 AM  

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