Brian Leiter’s recent post, Empirical Legal Studies, Redux, summarizes the blog debate over the growth of empirical legal studies and its implications for legal scholarship. There is not much need to go through history here, but Professor Leiter’s recent post gets pretty quickly to the point, i.e. Professor Eisenberg’s response to Leiter’s would be-claim that ELS is irrelevant to legal scholarship:
Anyone who doubts the power of this blog (I know you’re out there, and you will be smitten in due course!), take note: a blog post in the dog days of summer on “empirical legal studies“ has now resulted in an actual scholarly article in rebuttal! The author is Cornell’s Ted Eisenberg, intellectual leader and innovator in empirical studies of the legal system, and the only “concerns” about ELS to which he responds are those in my blog post (see p. 7 of his article). Professor Eisenberg makes the utterly shocking allegation that “blog posts…often constitute unreflective, on-the-spot reactions provided to promote or provoke discussion,” but we shall put that startling revelation to one side. The truth is I’ve reflected a lot about ELS, over the course of dozens of hours of job talks and workshops by ELS scholars over the past five years. Professor Eisenberg misunderstands, alas, my worry about the “skill level” of ELS scholars: no one doubts that many ELS scholars have strong empirical, statistical, and experimental skills, of the kinds one would expect from PhDs in various social science disciplines.
Leiter goes on to correct the record and repeat his claim that was primarily about the distribution of skills among ELS scholars rather than a claim about relevance per se or a claim that there is not important ELS work being done.
Professor Leiter’s recent addendum to his earlier post also generously points out that Eisenberg’s essay purports to take on my earlier post on ELS as well, noting that: “Professor Eisenberg also offers a response to Josh Wright’s earlier and informative comments on ELS, though I’m not sure he responds adequately to them either. But I trust Professor Wright will take up the matter in due course.”
Now is as good a time as any.
Having now read Eisenberg’s article, here is the relevant passage:
Some bloggers have bemoaned the irrelevance of ELS, calling it “increasingly mysterious and disconnected from the central normative and conceptual questions of legal scholarship and legal education”62 and bemoaning “the fetishization of technical skills at least partially for the proliferation of empirical legal scholarship that is irrelevant to the law.”63
The first quote belongs to Leiter; the second quote is mine.
However, even a cursory read of my post makes fairly clear that I am no “blogger bemoan[ing] the irrelevance of ELS.”
The passage Professor Eisenberg’s cites makes the point that some of the recent work in empirical law and economics sacrifices legal and policy relevance for mathematical formality and elegance. TOTM readers will recognize this as a theme I’ve discussed before in my series of the “future of law and economics.” On top of that, the discussion was largely aimed at the rise of technical formal modeling, i.e. theory, not empirics.
Moreover, the post specifically noted that I was restricting my attention to empirical L&E and not ELS generally in same paragraph Eisenberg quotes:
I’m less familiar with the details of these trends in other fields that contribute to the empirical legal studies more generally, e.g. political science, psychology, sociology and such, but its certainly an issue with empirical law and economics.
Thus, I never claimed that ELS was irrelevant. In fact, what an odd claim that would be for me to make. In fact, I’m a producer of such scholarship (see, e.g., here, here, here, and here). My point was merely that trends in economics departments placing a premium of technical methods that, in my view, had less relevance for legal applications had led to growth on the margin of empirical L&E scholarship with less policy relevance. Indeed, in the offer my objection to expressed my many skeptics of empirical work (see, e.g. Professor Bainbridge when he writes that empirical work will “always be suspect — and incomplete in my book.”) as well as Leiter’s claim that the average quality of ELS is lower than other areas of legal scholarship —- thus the title of the post about the “perfectly proportional mediocrity” of ELS scholars.
In other words, I suspect the average quality level of ELS scholars is not much different than the rest of the legal academy. Leiter disagrees. But do note, and this is key, that the interesting debate is about what the distribution looks like; both Leiter and I agree that good empirical work is valuable, that there are legal scholars doing good work, that it exists, etc. It was never about whether the entire enterprise is relevant.
In fact, I find ELS to be remarkably similar to other areas of legal scholarship in this regard, and noted as much in the post:
There is too much empirical work done because it looks empirical, too much doctrinal work that chases hot topics because they are hot topics, too many articles with catchy titles, too many footnotes, too much behavioral law and economics, too much about the Supreme Court relative to lower courts, etc. Heck, there might even be too many law professors. But disproportionately mediocre? This is another claim with a testable implication. Perhaps one could compare the fraction of ELS work that is never cited to the total output and compare that to other fields. But that might not be a decent measure of “mediocre.” But the the non-empirical legal studies world is huge. And I get enough SSRN emails and see enough papers to suspect that ELS doesn’t seem to have any comparative advantage in mediocrity. On average, I suspect that the relative mediocrity level for those engaging in empirical work is just about right thank you very much. An alternative explanation is that Professor Leiter is reading a disproportionately high amount of bad empirical legal studies work and not enough mediocre doctrinal, non-empirical work.
In sum, the claim that I bemoan the irrelevance of ELS is misplaced.
Unfortunately, Eisenberg layers an awkward “blog v. ‘real’ scholarship” angle on top of all of this when he suggests that blog posts are especially prone to “unreflective, on-the-spot reactions provided to promote or provoke discussion.” Its true. And I’m often guilty as charged on my blog — in fact, that is part of the fun of it. But this entire exercise demonstrates that blogs hold no monopoly over generating claims that do not hold up upon close consideration of the facts.
Perhaps Professor Eisenberg and I would disagree about on the causes and consequences of the ELS movement, its relationship to empirical L&E, what the quality distribution looks like, or something else. But the relevance of ELS writ-large is simply not one of them.
DISCLOSURE: I want to note that I’ve emailed much of what appears above to Professor Eisenberg (well) prior to posting it here. Professor Eisenberg was kind enough to reply and note that he I would try and better represent my views in subsequent revisions to the article. His willingness to do so is much appreciated. Nonetheless, given the recent blog posts on the issue, I thought the substance of the debate might interest TOTM readers.