Lisa Fairfax kicked off an interesting discussion over at the Glom regarding some reasons why untenured folks should not engage in empirical scholarship. The basic message: it takes too long, is too hard (to get data, mostly), may not be received well by tenure committees. There are some great comments to the post defending the enterprise of empirical legal scholarship by the untenured and the theme is picked up at ELS Blog. Many thanks to Lisa for kicking off this very interesting and important discussion. It is a valuable discussion of some of the tradeoffs facing those who would like to include empirical work in their research agenda pre-tenure. Understanding the risks associated with undertaking your research agenda, whatever it is, is certainly a better option than going in blind.
I think Bill Henderson’s comment has it about right:
“In the fall of 2001, as I job-talked my first empirical article, I remember hearing the caveat on pre-tenure empirical work from the chair an appointments committee. But two years later, an IU colleague told me, “In this business, we spend a lot of time doing scholarship. You’ve got to follow your star.”
So which advice is better? In my case, I could not follow both. So I picked empiricism because I loved the work.
… .
Sure, two years from now I may not get tenure (I remain optimistic!), but intellectually, this has been the best five years of my life. Why give in to fear? Follow that damn star.”
Bill’s comment, to me, gets to the heart of the matter. While law school tenure standards are light relative to social science departments, tenure is not guaranteed. Young empirical scholars, like juniors in many other fields, must make some tough choices about their research agendas and make some fairly subjective judgments about the potential costs and benefits of those decisions over time. We law professors have the opportunity to follow whatever research agenda we desire, not to mention a pretty wonderful job in the meantime. Not to minimize the obvious utility of the other suggestions in the comments for those seeking tenure (find an institution that values empirical work, find publicly available data, etc.), but I think the best advice an untenured faculty member can get is to find a research agenda they are passionate about and then put your head down and get to work.
Speaking of empirical scholarship, and on a bit of a tangent, yesterday I spoke at SEALS panel dedicated to the topic of “Empirical Law and Economics.” I presented my empirical paper on the consumer welfare consequences of slotting allowances, uncreatively but hopefully appropriately titled, “Slotting Contracts and Consumer Welfare” (forthcoming in the Antitrust Law Journal).
The panel featured presentations by the Glom’s Fred Tung and Joanna Shepherd (both of Emory Law School). Both papers were took on very interesting and important research questions and were very carefully done. At other conferences, like ALEA, I typically sit on panels that are topic specific, i.e. antitrust. While I very much enjoy that model, which allows me to talk to specialists in my field, this panel was particularly enjoyable for me because it tied together empirical papers from very different fields: corporate governance, torts, and antitrust. Fred presented work co-authored by Joanna Shepherd and Albert Yoon (Northwesetern) entitled “Cross Monitoring and Corporate Governance” examining the role of banks in reducing agency costs. Joanna presented “Tort Reform and Accidental Deaths,” a thought provoking and excellent study co-authored by Paul Rubin of the impact of a number of tort reform measures on accidental deaths. Here is the abstract:
Theory suggests that tort reform could have either of two impacts on accidents. First, reforms could increase accidents as tortfeasors internalize less of the costs of externalities, and thus, have less incentive to reduce the risk of accidents. Second, tort reforms could decrease accidents as lower expected liability costs result in lower prices, enabling consumers to buy more risk-reducing products such as medicines, safety equipment, and medical services, and as consumers take additional precautions to avoid accidents. We test which effect dominates by examining the effect of tort reforms on non-motor vehicle accidental death rates, using panel-data techniques. We find that caps on noneconomic damages, a higher evidence standard for punitive damages, product liability reform, and prejudgment interest reform lead to fewer accidental deaths, while reforms to the collateral source rule lead to increased deaths. Overall, the tort reforms in the states between 1981-2000 have led to an estimated 22,000 fewer accidental deaths.
UPDATE: Paul Horwitz and Larry Solum offer some additional thoughts.
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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.
I wonder how much of the advice against empiricism for junior faculty might stem from similar motivations. “Don’t do empirical scholarship” can be shorthand for “do the sort of scholarship I do.” Also, as someone who does empirical work, it helps me to hear that empirical work is so difficult and time-consuming that junior scholars need not attempt it! I am sure the advice against doing empirical work was sincere and in good faith. But we do work in a profession with its own special interests, and we should remember the motivations for any career advice we receive.