A New Legal Empiricism?

Assessing ELS and

NLR

Mark C. Suchman
Brown University

Elizabeth Mertz
University of Wisconsin - Madison; American Bar
Foundation

Univ. of Wisconsin Legal Studies Research Paper No. 1141

American Bar Foundation Research Paper No. 11-01

Annual Review of Law and Social Science

Vol. 6, pp. 555-579, 2010

NOVEMBER 2010

http://ssrn.com/abstract=1710641
A New Legal Empiricism? Assessing ELS and NLR

Mark C. Suchman1 and Elizabeth Mertz2

1
Department of Sociology, Brown University, Box 1916, 112 George Street, Providence, RI
02912; mark suchman@brown.edu.
2
University of Wisconsin Law School and American Bar Foundation, Chicago, Illinois 60611;
email: eemertz@wisc.edu.

Key Words sociolegal studies, law and society, social science, empirical research, theory

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.

INTRODUCTION 3

Where you been lately? There's a new kid in town.

Everybody loves him, don’t they ... and you're still around.

“New Kid in Town,” The Eagles (1976)

The past decade has witnessed a noteworthy development for sociolegal scholarship: For the
first time in at least a generation, serious empirical research on law appears to be taking root and
blossoming within the legal academy. The relationship between law and social science has a long
and varied history, well-documented in numerous publications (see, e.g., Kalman 1986, Schlegel

3
We would like to thank Todd Bridges and Frances Tung for their invaluable research
assistance. The ideas in this essay have also benefited from discussions with colleagues at the
University of Wisconsin, at Cornell Law School, at the American Bar Foundation, in sessions at
the American Association of Law Schools Meetings, and in the American Sociological
Association‟s Section on the Sociology of Law. A finished version of this article is published in
the Annual Review of Law and Social Science Vol. 6: 555-579 (2010) as Mark C. Suchman and
Elizabeth Mertz, “Toward a New Legal Empiricism: Empirical Legal Studies and New Legal
Realism.”

Electronic copy available at: http://ssrn.com/abstract=1710641

1995, Garth & Sterling 1998, Munger 1998, Tomlins 2000), and the arrival of a new legal
empiricism has been heralded several times in the past, with only mixed results. 4 Nonetheless, a
spate of recent conferences and publications on “empirical legal studies” and “new legal realism”
suggests that an empiricist ferment may again be underway.

To the many scholars who have long been conducting empirical work on law outside the legal
academy (as well as to the handful of scholars who have striven for decades to cultivate
empiricism within the legal academy during a decidedly harsher season), this “development”
may at first seem like old news. The relationship between law and empirical social science dates
back at least to the days of Durkheim (1893), Weber (1978) and Malinowski (1959), and has
continued forward into the current-day projects of the interdisciplinary law-and-society
movement and of such disciplinary social science subfields as judicial politics, law and
economics, the social-psychology of law, the sociology of law, legal history, and legal
anthropology. Thus, if the “new” empiricism in socio-legal studies is new at all, its novelty lies
not so much in its method or subject matter as in its institutional locus and intellectual agenda.

This review traces the progress and prospects of the two most prominent hotbeds of new legal
empiricism: the emerging movements known as Empirical Legal Studies (ELS) and New Legal
Realism (NLR). Both movements are still young, their advance is uneven, and significant
divisions exist even among their supporters. Consequently, in addition to examining ELS and
NLR on their own terms, we also explore their relations to more established law and social
science traditions. Despite their many virtues, ELS and NLR may not be fertile ground for
everyone who studies law empirically, but their efforts to carve out a niche for empirical research
within the legal academy could eventually reshape the intellectual ecology of the larger socio-
legal landscape as well, affecting (for the better, one would hope) even those fields that they do
not annex.

NEW APPROACHES TO THE EMPIRICAL STUDY OF LAW

Since the mid-1990s, several groups of scholars have been at work developing what they
describe as new efforts to marry law and social science. In 1996, Harvard opened what may
have been the nation's first self-proclaimed -- though short–lived -- Empirical Legal Studies
program (Program on Empirical Legal Studies 2005).5 In 1997, a roundtable entitled "Is It Time
for a New Legal Realism?" was held at the Law & Society Association Meetings in St. Louis,
Missouri; in the same year, political scientist Frank Cross (1977) and legal philosopher Brian
Tamanaha (1977) both published signal works on realism in legal studies. Subsequent years
have seen further calls for renewed attention to empiricist and realist approaches in legal studies,
from a number of different vantages (see, e.g., Sebok 1998, Radin & Wagner 1998, Ewick 1999,
Farber 2001; and earlier, but in a somewhat different vein, Balkin 1990). In 2003, a panel at the
annual meeting of the Association of American Law Schools explored the emergence of a “new

4
Indeed, as early as 1897, Oliver Wendell Holmes opined that “for the rational study of
the law ... the man of the future is the man of statistics” (see generally Heise 2002:822 ff.;
Kritzer 2009).
5
This program was closed in 2006 when its founding Director, Kip Viscusi, moved to
Vanderbilt (Viscusi 2010).

Electronic copy available at: http://ssrn.com/abstract=1710641

genre of legal scholarship” (Eisenberg 2004:1743), and in 2004, a major conference on New
Legal Realism began to spawn publications. 2004 also saw the arrival of a new refereed
periodical, the Journal of Empirical Legal Studies (JELS), “devoted to the dissemination of
empirical studies of the legal system.” 2006 brought the first annual Conference for Empirical
Legal Studies (CELS), and by the following year, both JELS and CELS had been gathered under
the aegis of a newly-created Society for Empirical Legal Studies (SELS).

This review examines the emerging ELS and NLR movements as they have come to define
themselves across these and other venues. As far as possible, we address these movements as
movements, rather than attempting to demarcate, synthetically, some corpus of work that we
deem to represent “empirical legal studies” or “new legal realism” independent of the authors‟
own self-identification.

ELS and NLR, taken in this sense, clearly do not encompass all studies of law that employ an
empirical approach. Indeed, we believe (with some evidence) that much of the best empirical
socio-legal scholarship continues to come from outside the legal academy. Our review thus has
two main purposes: first, to bring the kindred spirits in the ELS and NLR movements to the
attention of law and social science researchers who may be doing empirical and realist legal
studies of their own elsewhere; and second, to situate ELS and NLR scholarship in the context of
these other important sources of empirical learning on law. We make no pretense of reviewing
the full relationship between law and social science, which has been well-documented elsewhere
-- and which in many ways culminated in the creation of the Annual Review of Law and Social
Science (Friedman 2005). Rather, we limit ourselves simply to describing the NLR and ELS
movements on their own terms, and then highlighting the most salient points of harmony and
dissonance between them and the ongoing social-scientific projects that share their terrain.

Realist Roots
To some degree, Empirical Legal Studies and New Legal Realism share a common heritage.
Both arise primarily from the legal academy itself, and both trace their ancestry back to the
original Legal Realist movement of the 1930s (Heise 2002:822-824; Kritzer 2009; Nourse &
Shaffer 2009). Coalescing at the height of the New Deal, the original Realists were a loosely-
associated but prominent group of legal scholars who sought to supplant the rigid, doctrine-
centered “legal formalism” of the 1800s (see Grey 1983) with a more flexible and pragmatic
style of scholarship, attentive to policy, politics, and the law-in-action of self-regulating social
communities. Consistent with this socially-engaged, reformist agenda, many of the early
Realists advocated the use of empirical social science to inform thinking about law (Schlegel
1995). It is this “empirical vein” of Legal Realist scholarship -- championed by Underhill
Moore, Charles Clark, William Douglas, Karl Llewellyn, and Louis Brandeis, among others –
that provides a common touchstone for promoters of both ELS and NLR today. Although they
may not always share their forebears‟ New Deal politics, ELS and NLR scholars alike share a
disgruntlement with traditional doctrinal scholarship, and a desire to inject serious empirical
inquiry into legal and policy debates.

Given this common heritage, it is hardly surprising that ELS and NLR resonate in many ways,
and that their constituencies sometimes overlap. But although the two movements are
contemporaneous and kindred, they are not identical twins. In both style and substance, ELS and
NLR have often struck distinct (and occasionally discordant) tones. Thus, we begin by
considering each movement in its own right, before placing them in juxtaposition.

Empirical Legal Studies6

Of the two movements, ELS is the more widely known, in part perhaps because ELS has been
particularly assiduous in fashioning itself explicitly as a movement – so much so, in fact, that at
least one observer has written (with a mixture of admiration and dismay) about the strength of
the “ELS brand” (Chambliss 2008:31 ff.). In truth, though, the ELS movement (like the NLR
movement described below) has no single canonical self-definition, and its boundaries remain
indistinct. Some advocates have characterized it in broad terms as a drive to generate “legally
sophisticated empirical analysts” who can conduct “scholarship that helps inform litigants,
policymakers, and society as a whole about how the legal system works” (Eisenberg 2004:1741).
Others have defined it much more narrowly as based in quantitative methods and hypothesis
testing (George 2006:141). As philosophers of science might remind us, however, such
definitions gain substance only when instantiated by a particular scholarly community, with a
particular methodological style, on a particular intellectual mission (Polanyi 1962; Kuhn 1970;
Miller & Fox 2001). Here, we consider these three elements –membership, method, and mission
– in turn.

In its social origins, ELS (like NLR) is closer to law schools than to social science departments.
That, presumably, is what “legally sophisticated” means. While many key ELS partisans hold
dual degrees in law and one or another social science discipline, the movement has grown largely
within a matrix of law-school-based research centers and conferences, producing scholarship in
law-school-based journals. In recent years, ELS programs or seminar series have sprung up at a
number of law schools, including Cornell, NYU, Northwestern, UCLA, and Washington
University in Saint Louis (see variously Heise 2002, Eisenberg 2004, Chambliss 2008). An early
convening point for the movement was a 2001 conference on “Empirical and Experimental
Methods in Law” at the University of Illinois‟ law school, and since 2006 each annual CELS
meeting has been hosted by a law school with strong ELS ties – first Texas in 2006, then NYU,
Cornell, USC, and Yale. The movement has received a further impetus from the American
Association of Law Schools, which ran empirically-themed panels at both its 2001 and 2003
annual meetings, and then, with encouragement from both ELS and NLR scholars, chose as its
2006 meeting topic “Empirical Scholarship: What Should We Study and How Should We Study
It?”

The bulk of self-identified ELS scholarship has appeared either in the peer-reviewed Journal of
Empirical Legal Studies, edited at Cornell Law School, or in traditional law reviews – including
symposia in the University of Illinois Law Review (2002) and Vanderbilt Law Review (2006).
According to ELS partisans, “student-edited law reviews now regularly publish original
empirical research on topics of legal interest, and the frequency ...seems to be increasing”
(Mitchell 2004:169 n.9; see also George 2006; Ellickson 2000). Other less formal venues for the
dissemination of ELS ideas are similarly embedded within the law school world: Jennifer Arlen
of the NYU School of Law edits the Social Science Research Network‟s (SSRN) online

6
Portions of this discussion draw on informal comments by Suchman (2006).
manuscript archive on “Experimental & Empirical [Legal] Studies,” and a group of faculty from
several other law schools produce a lively “ELS blog.”

All of this activity highlights the roots of ELS in the legal academy. Nonetheless, given that law
schools historically have done little to train empirical scholars (but see Heise 2002:825), ELS
remains quite open to participants from the social sciences – indeed, several recent agenda essays
have encouraged empirically-unsophisticated law professors to look to the social science
disciplines both for supplementary training and for complementary collaborators (Epstein &
King 2002; Heise 2002; George 2006). To date, ELS's largest contributing disciplines seem to
be economics, political science, and psychology (see Figure 2), but the other social sciences
could potentially claim a place at the table if they chose. The price of admission, though, would
be a willingness to embrace ELS‟ method and mission, which some disciplinary social scientists
could find a bit limiting.

ELS scholars have made sophisticated methodology of a limited sort into one of the movement‟s
defining traits, and their self-definition in this regard has been narrower than that of their
colleagues in NLR -- and than most disciplinary social scientists as well. As the preceding
quotations from Eisenberg (2004) suggest, ELS‟s methodological vision is more quantitative
than qualitative, more confirmatory than exploratory, and more contemporary than historical.
To be sure, a number of leading ELS scholars have explicitly advocated “big-tent” usages that
would include qualitative as well as quantitative empirical research (e.g., Mitchell 2004;
Diamond 2002). Michael Heise (2006), for example, has stated that “different methodological
approaches possess different blends of strengths and weaknesses and none possess an exclusive
lock on advancing knowledge,” and further commented that “„multiple methods,‟ where
appropriate and helpful, strikes me as a good idea.” At the same time, many ELS proponents
either explicitly or implicitly take “empirical” to apply only to quantitative analyses that hew
closely to a formal hypothesis-testing version of the scientific method (for the narrowest version,
see George 2006:141, who would limit ELS to “a model-based approach coupled with a
quantitative method [in which the] empirical legal scholar offers a positive theory of a ... legal
institution and then tests that theory”). Sometimes this is done as an agenda statement (Nard
1995; Shreve 2000); sometimes, as a presentational convenience (Heise 2002; Schuck 1989); and
occasionally, merely as a byproduct of some pragmatic institution-building purpose. But it is
done often, and not particularly reflectively. For example, Mitchell (2004:198-204) proceeds
from an initial big-tent definition emphasizing simply “observations of the world” to a set of
specific guidelines “for making empirical legal research more scientific” that would effectively
preclude almost all qualitative investigations. More flagrantly, Ellickson (2000) and George
(2006) purport to measure the prevalence of empirical legal scholarship by examining the
frequency of phrases such as “statistical significance” and “figure 1” in the Westlaw journal
database – an enterprise which has drawn rebuke even from some quantitatively-oriented
colleagues (see Edelman and Simon 2006 (cited with approval by Leiter 2006)). Some observers
have suggested that this methodological posture may be more a strategic marketing move than a
deep philosophical commitment (Suchman 2004; Chambliss 2008); however, for the moment at
least, quantitation holds a prominent place on the ELS agenda.
This brings us to ELS's intellectual mission, which (once one gets beyond quantitation) remains
only loosely defined. Indeed, in some ways, ELS seems to compensate for its methodological
exclusivity with conceptual eclecticism. This has led some uncharitable observers to speculate
“whether ELS might simply be the sociology of law in new clothing. Or more menacingly, law
and economics in sociologists' clothing. Or more cynically, the legal professoriat in the
emperor's new clothing” (Suchman 2006). As a recent poster to the ELS blog noted, “ELS has a
number of different constituencies, and the common cause among them is not always obvious”
(Zaring 2009).

Perhaps the largest tributary to the ELS stream comprises empirical law and economics
researchers, who bring the tools of financial econometrics to familiar questions of corporate law
such as the impact of various governance structures and legal regimes on business formation and
shareholder value. A second substantial tributary comprises political scientists from the “judicial
politics” tradition, who test game-theoretic models of court decision-making. A third tributary
comprises social psychologists and behavioral economists, who conduct experimental studies of
such legally-relevant phenomena as negotiation, procedural justice, courtroom perception, and
jury behavior. Finally, beyond these three contingents, each with obvious counterparts in the
social sciences, ELS also encompasses a substantial number of quantitatively-inclined legal
academics who seek out opportunities to marry methods to data across a wide range of
“obviously interesting” legal questions.

What unites these disparate camps is an enthusiasm for the application of rigorous empirical
methods to questions of legal (as opposed to primarily disciplinary) import. This, one might
argue, is what ELS means by “informing litigants, policymakers, and society as a whole about
how the legal system works” (Eisenberg 2004; see also Suchman 2006; Chambliss 2008). The
ELS mission, then, is the empirical study of all those phenomena that have long commanded the
attention of legal scholars and practitioners, but that have heretofore been “known” only through
doctrine, personal experience, and common-sense assumptions about human nature.

Thus, for example, ELS might ask whether an increase in the number of lawyers leads to an
increase in litigiousness; whether videotaped confessions elevate the likelihood of conviction; or
whether understaffed trial courts push more cases toward out-of-court settlement. In contrast to
disciplinary social science, however, ELS would be far less likely to ask whether the legal
profession promotes or impedes the development of liberal democracy, whether criminal
confessions depart from the speech patterns of conversational storytelling, whether the
exportation of U.S. legal models is damaging to other societies, or whether new professions
foster new “logics” of dispute resolution. To be clear, ELS might embrace the findings from any
of these latter inquiries, but an ELS perspective would be unlikely to frame the question in quite
the same abstract, theoretically-grounded terms. Rather, a more promising ELS framing would
be to target a primarily legal audience, by highlighting a finding‟s usefulness to practicing
attorneys, relevance to judges and legislators, or bearing on a familiar doctrinal conundrum – all
while soft-pedaling linkages to any disciplinary debates that legal scholars might consider overly
arcane.

In short, ELS is currently more strongly unified by its institutional locus (legal) and its
methodological proclivities (quantitative) than by any specific substantive or theoretical focus.
Heise (2002:826ff.) argues that three sets of factors favor a movement with this profile: The
first, somewhat ironically, is “doctrinal progress [which] helps uncover ... key empirical
assumptions [that] then become amenable to the rigors of empirical testing.” (2002:827). The
second is “an increase in law faculty ... possessing multiple graduate degrees (e.g., J.D./Ph.D.),”
whose advanced methods training makes them “more inclined to pursue empirical research
projects” (2002:828). The third is a cluster of practical developments, including “[a] growing
number of [public-use] datasets ... that bear on important legal questions,” coupled with
“statistical software programs for personal computers that can manage many of the most
sophisticated analyses .... in exceptionally accessible, user-friendly formats” (2002:829-830).

Although one might quibble with some of these linkages, Heise‟s enumeration reinforces the
image of ELS presented above: Rather than critiquing the role of legal doctrine (contra the “rule
skepticism” of the original Legal Realists), ELS sees doctrine as a source of empirical
propositions to be tested. Rather than seeking to move the center of gravity from law schools to
disciplinary sociolegal studies, ELS sees the disciplines as repositories of technical skills that can
be imported into established legal research endeavors. And rather than demanding that legal
scholars engage more directly with the social world, ELS emphasizes the ease with which
properly trained (or assisted) law professors can pluck low-hanging empirical fruit in the comfort
of their campus offices. In each of these ways, ELS is less radical and less directly threatening to
the legal establishment than many of its empiricist predecessors. Partisans (e.g., Eisenberg 2004)
and even some cynics (e.g., Chambliss 2008) have suggested that this may be precisely the right
formula to unlock the gates of a previously-resistant legal academy.

The New Legal Realism

The Empirical Legal Studies approach finds interesting parallels in the path that New Legal
Realism has taken contemporaneously to penetrate the same fortress. In addition to claiming a
similar Legal Realist pedigree, NLR has also grappled with similar issues of institutional
allegiance, methodological and topical breadth, and doctrinal relevance. Thus, we begin this
section with a description of the part of the NLR movement that has adopted the kind of broadly
inclusive approach that characterized the original Legal Realists, both in terms of method and
topic. We then discuss more particularized efforts, and provide a brief contrast between the
original Legal Realist movement and the NLR movement now underway. Our discussion of
NLR ends with a discussion of a recently published synthesis that draws many strands of
research together.

Like ELS, the New Legal Realism movement took shape throughout the 1990s and into the new
millennium. As the sway of Law and Economics ebbed, it seemed that the legal academy was in
search of a new paradigm for integrating social science. Early signals of this involved a turn to
“behavioral law and economics,” opening up legal academics to types of methods that were well-
known in psychology, but not often invoked by law professors. NLR scholars hoped to build on
these beginnings to provide a platform for rigorous multi-method research on law – research that
would draw on the full range of social science learning.

The first NLR Conference, which took place in Madison, Wisconsin in June 2004, adopted a
“broad tent” model (Erlanger et al. 2005:337; see also Chambliss 2008:37-38). The Conference
was funded by the American Bar Foundation and the University of Wisconsin Law School‟s
Institute for Legal Studies. Scholars from these two institutions as well as from Harvard and
Emory held preliminary meetings to plan for the conference, building from a panel discussion at
the 1997 Law & Society Association Meetings. The core of the conference consisted of the
presentation of actual examples of the kind of multi-method research on law from which a new
approach might emerge; there were also sessions on theory, history, and legal education reform
(see, e.g., Macaulay 2005, Trubek 2005). From the outset, the group focused on building an
integrative model for studying law – one that would bring together multiple empirical
methodologies to be used in service of resolving theoretically-informed questions (Erlanger et al.
2005; Macaulay 2005, 2006). Rather than prejudging what kind of method would be used
(quantitative, qualitative, experimental), these scholars argued that research methods should be
chosen based on the kinds of questions being asked. This approach emulates the inclusive
approach of the law-and-society movement – and, indeed, NLR remains closely allied with Law-
and-society still.

The initial NLR conference resulted in the collaborative publication of symposium issues by a
peer-reviewed social science journal (Law & Social Inquiry 2006) and a student-edited law
review (Wisconsin Law Review 2005). The conference participants had voiced concern that a
turn toward empiricism in the legal academy without careful attention to the translation between
law and social science might simply produce poor research -- and an overinflated reliance on that
research. Consequently, the symposium issues examined problems such as poverty,
globalization, and discrimination from the combined perspectives of law and social science,
focusing on developing better methods for interdisciplinary translation (see, e.g., Mitchell 2005,
Pager 2005, Merry 2006). There was a strong emphasis on the social context of law in these
articles, and on developing approaches that are adequate to capturing the often-messy reality of
law as it actually works (Macaulay 2005:392-402). However, there was also an insistence on
integrating research on social context with analysis of the effects of doctrine – on remaining
“receptive to evidence showing that formal law can have effects” (Erlanger et al. 2005: 340).

At a theoretical and methodological level, this strand of New Legal Realism turned to the
pragmatist tradition in philosophy for approaches that studied social phenomena from the
“ground-level” up as well as from the top down. Broadly defined, pragmatism prioritizes social
context and action in the world as the fundamental source of meaning and truth. Obtaining full
information about social context and action arguably requires the inclusion in one‟s
methodological toolkit of field-intensive methods such as participant observation and
interviewing; and in substantive terms, a ground-level perspective draws attention to the effect of
law on the everyday lives of ordinary people – in addition to the experiences of elites and
professionals (NLR Conference Program 2004).

The focus on pragmatism in this first strand of New Legal Realist thought is closely allied to
work by legal philosophers such as Brian Tamanaha (1997) and Brian Leiter (2001, 2007, 2008),
both of whom have written about the application of pragmatist theory to law, and who in
different ways have advocated the development of new legal realist theory and research
practices. Tamanaha in particular develops a proposal for “non-political social scientific
inquiry” from “the seminal insight of pragmatism that the key to truth, knowledge, meaning,
understanding, and science lies in our acting in the world” (1997:245, 255).
A more narrowly focused strand of NLR thought also began to take shape in 1997, with the
publication by political scientist Frank Cross (1997) of an article that announced the genesis of a
form of New Legal Realism rooted in political science. Cross‟s work called for increased study
of judicial behavior using quantitative methods, a favorite agenda for “judicial politics”
researchers in the ELS mold, as well. However, unlike traditional judicial politics approaches
(but like the “big tent” NLR scholars described above), Cross urged researchers to consider not
only the effects of political context (for example, the ideology of judges) but also the costraining
power of formal doctrine (Cross 1997, 2005). A subsequent article by Thomas Miles and Cass
Sunstein followed in the same tradition, using statistical analysis to examine what happens when
judges with differing political ideologies work together on “mixed” panels; they concluded that
“the role of political judging is sharply diminished on mixed panels” (2008:851). This suggests
that doctrine provides a lingua franca that judges can use to proceed in the presence of
ideological disagreement. Since the late 1990s, there have been numerous events and
publications focusing on New Legal Realism. After the initial NLR conference in 2004, the “big
tent” group of scholars sponsored subsequent conferences in 2005, 2007, 2008, and 2009.
These gatherings have focused on methodology, on the relationship between empirical research
and legal theory, on legal approaches to poverty and land ownership, on the legal treatment of
gender-related issues in employment, and on statutory interpretation.

NLR scholarship has also been presented in panels at the annual meetings of both the American
Association of Law Schools and the Law & Society Association. In addition, NLR scholars have
spearheaded the formation, within the Law & Society Association, of a “Collaborative Research
Network” on “Realist and Empirical Legal Methods,” and have established a New Legal Realism
website dedicated to fostering “a rigorous, genuinely interdisciplinary approach to the empirical
study of law.” Spurred on by these institutional developments, more and more research has
appeared across the different strands of new legal realist thought: By autumn of 2009, US law
reviews had published more than 300 articles that referred to new legal realism in one context or
another (Nourse and Shaffer 2009:63).

In addition to echoing the empiricism of the original Legal Realists, NLR (far more than ELS)
also echoes those earlier Realists‟ eclectic openness to a wide range of social science methods
and theories. At the same time, however, NLR moves beyond original Realists in important
ways. As Stewart Macaulay (a leading figure in the movement) notes, NLR‟s “ground-level up”
emphasis on the role of law in everyday life stands in contrast to the older tradition‟s emphasis
on judges, courts, and formal legal rules; its involvement in actual empirical research also
contrasts with much of the old legal realists, who talked about social science more than they
actually engaged in it (2005:375, 379). In addition, NLR has been quite receptive to examining
law‟s expressive and symbolic elements, whereas the Realists of the 1930s came (perhaps
unfairly) to stand for a more instrumentalist, coercive vision of law.

If our guiding principle in this review has been to select research based on its own self-
identification as “realist,” a recent panoramic view of NLR offered by Victoria Nourse and Greg
Shaffer (2009) takes a different direction. Nourse and Shaffer look beneath diversely labeled
studies to find an underlying realist framework binding together a large collection of scholars
studying law in the early twenty-first century. Reviewing the “broad tent” and “judicial attitude”
groups described above, as well as a number of other like-minded traditions, Nourse and Shaffer
suggest that the NLR domain divides into three broad categories: the behaviorists, the
contextualists, and the institutionalists. The “behaviorist” category includes judicial attitude
scholars and also a growing number of “behavioral economists” who cast serious doubt on
formalist “rational actor” models of human decisionmaking (Farber 2001). Under the
“contextualist” label, Nourse and Shaffer include the “broad tent” NLR scholars and other social
scientists associated with the law-and-society tradition, who focus on the social emeddedness of
legal processes. Finally, Nourse and Shaffer identify a group of “institutionalists,” who to some
degree overlap with the contextualists (institutional contexts being a particular variety of the
broader category). Here, Nourse and Shaffer note similarities among scholars who study law
using approaches from comparative institutionalism, neoinstitutionalism, microanalysis of
institutions, the “new governance,” and “antidomination” models.

Though most of the research discussed by Nourse and Shaffer is heavily empirical, one of many
notable features about their synthesis is their attempt to provide a theoretical framework to orient
such empirical work. An important part of this is their use of theoretical contributions by
scholars such as Martha Fineman to give normative content to NLR‟s pragmatism. As
Tamanaha has noted, pragmatist theory tends to be normatively “empty” (1997: 245-46) – it
doesn‟t specify a particular value orientation. Although Tamanaha argues that the virtues of this
emptiness exceed the costs, Nourse and Shaffer seek to give NLR stronger ethical moorings by
drawing on substantive models of law‟s relation to justice. In particular, they invoke Fineman‟s
(2008, 2005) “vulnerable subject” model as a counterweight to the (equally value-laden)
“rational actor” model favored by formalist economic and game-theoretic approaches.]

In conclusion, Nourse and Shaffer strike a complex intermediate note that seems to be typical of
many varieties of NLR, which attempt to balance formal law and context, to combine multiple
methods, and to eschew oversimplifying assumptions (2009:132-37). They posit a “recursive”
relationship between law-and-society, in which each influences the other – and they call for an
“emergent” style of inquiry, consonant with pragmatism, in which investigators move between
theory and empirical research with each informing the other (for a different formulation of a
“recursive” NLR approach, see McEvoy 2005). Like any intellectual movement, including the
original Realists, the New Legal Realists clearly have some internal points of difference –
regarding the role of values in empirical inquiry, regarding research methods and topics, and
regarding orienting theories. Nonetheless, Nourse and Shaffer make a compelling argument for
some very interesting points of convergence in contemporary empirically-based scholarship on
law. They see in the current moment an opening like that during the New Deal, when the
surrounding political and legal world needs a new form of legal scholarship to orient and inform
public policy.7

Although Nourse and Shaffer‟s synthesis may not be the only plausible way of assembling and
demarcating the various pieces of the NLR movement, it usefully highlights some core unifying
themes: Like ELS, NLR is firmly embedded in the language and problematics of the legal
academy; NLR is actively pursuing a mobility project in that arena; and that mobility project is
bound up with NLR‟s connections to empirical social science. Compared to ELS, however,

7
Compare Bravin (2009), who discusses the realist affiliation of newly-appointed Justice
Sotomayor.
NLR has placed its bets more heavily on methodological diversity, theoretical grounding, and
sensitive translation than on quantitative pyrotechnics, topical immediacy, and definitive
hypothesis-testing. Admittedly, both movements are broad, and their overlaps doom any facile
caricature. Nonetheless, this conjunction of significantly overlapping agendas and significantly
different styles raises the question of how these two flavors of new legal empiricism relate to one
another and to the other players in the sociolegal field.

CONGRUENCES AND CONTRASTS

One consequence of considering NLR and ELS as “movements” is to focus attention on their
“constituencies” and their “issue frames,” as outlined above (cf. Snow et al. 1986). Another
consequence is to focus attention on the overall ecology into which they are emerging (cf.
Minkoff 1997). The field of legal studies is already crowded with various camps and
movements, both empirical and not, and the fates of NLR and ELS are inextricably bound up
with the ability of these two new entrants to enlist, displace, or reach an accommodation with
those around them.

The New Legal Empiricism(s)

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:

[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.

In practice, however, although such a broad definition may comport with NLR‟s
methodological eclecticism, the ELS perspective has often been much narrower: For
some in ELS circles, research methods that do not count, do not count – sometimes quite
literally so, as in the case of the Ellickson-George “empiricism indexes” mentioned above
(Ellickson 2000; George 2006). In recent years, prominent ELS voices have
increasingly disavowed this “numbers-only” orientation (e.g., Diamond 2002; Heise
2002), and JELS has begun to include occasional qualitative studies (e.g., Kritzer 2009;
Wylie & Brank 2009) Nonetheless, quantitation remains deeply ingrained in the
intellectual identities of many ELS practitioners and programs, and they often have
difficulty explaining what they do without slighting other approaches (Chambliss
2008:31 ff. offers several telling examples).

To social scientists from disciplines such as sociology and political science, where
methodological eclecticism has come to prevail, ELS‟s stance may seem atavistic or
perverse. But as Chambliss (2008:31) insightfully notes, it serves an important branding
purpose, setting ELS up as a purveyor of the sort of “hard-nosed ... complexity and
precision” that decision-makers often crave but that doctrinal legal scholarship often
lacks. At the same time, in light of the disavowals cited above, it also seems possible that
the image of ELS as exclusively quantitative is becoming as much a stigma as a brand,
perpetuated less by ELS itself than by detractors who wish to promote NLR‟s own
counter-brand of methodological pluralism (Chambliss 2008:37; Nourse & Shaffer
2009:12 n.46). By claiming the mantle of inclusiveness, NLR can hold itself out as
offering a more accessible “translation” for audiences (including both legal academics
and qualitative social scientists) who might be put off by the limited scope or arcane
apparatus of ELS‟s quantitative “rigor.”

In short, as we discuss below, the methodological division between NLR and ELS poses
an interesting but as yet unresolved challenge for any effort to construct a coherent,
integrated legal empiricism. The current qualitative-quantitative split could easily evolve
into either a pitched methodenstreit or a congenial modus vivendi, either a deathmatch for
the mantle of “serious empiricism” or a tag-team partnership in pursuit of common goals.

A second, somewhat less fraught division between NLR and ELS centers on the meaning of
“legal.” Again, the question is how inclusive one wishes to be. Few scholars of any stripe
would dispute that legal studies include studies of the formal law, particularly the formal law as
manifested in the core structures and practices of the bench and the bar. Ambiguities arise,
however, when research moves outward beyond the legal system‟s formal institutional core or
downward from the legal system‟s elite intellectual peaks. Although no one has yet stated a
coherent programmatic case against the study of extra-legal disputing processes or laypeople‟s
everyday legal consciousness, several authors have noted that ELS tends to focus on the “top-
down” legal institutions of the state, whereas NLR tends to emphasize the “bottom-up”
normative contexts of civil society (cf. Nourse & Shaffer 2009:12 n.27, 57; Chambliss 2008:33,
37). To date, this distinction has largely been obscured by the more overt debates over
methodology; but it could move to the fore as the two movements mature and begin to grapple
with the responsibilities of participation in the policy process.
Other distinctions between NLR and ELS have drawn less comment but could also become
consequential in future years: To date, NLR‟s attention to pragmatist social theory and
traditional legal-realist jurisprudence has made it arguably the more “cerebral” of the two
movements – a tendency which, were it to become more pronounced, might strike ELS scholars
as smacking of a doctrinalist appetite for “claims about the world...founded on [nothing] other
than imagination, supposition, or logic” (Mitchell 2004:198). ELS, for its part, is arguably the
more institutionally entrepreneurial of the two movements, with seemingly boundless enthusiasm
for the creation of institutes, programs, associations, conference and journals, as well as an
obvious glee about recognition by the bench, the bar, the press and the public (see, e.g.,
Eisenberg 2004:1743; Heise 2003:831 ff.). NLR, in contrast, has fashioned itself as a more
loosely affiliated intellectual dialog, and if ELS‟s zest for high-profile institution-building were
to become more pronounced, it might strike some NLR scholars as smacking of an unseemly
appetite for status, power, and the good graces of social elites (cf. Chambliss 2008:31).

All these differences notwithstanding, a solid case can still be made for the claim that NLR and
ELS are distinct expressions of a single impulse, rather than inherently opposed or incompatible
forces. As many of the disciplinary social sciences have found, quantitative and qualitative
methods can co-exist peacefully and even symbiotically, as long as researchers remain open-
minded and sensitive to the respective strengths and weaknesses of different empirical
techniques. And arguably, “top-down” and “bottom-up” views of law can be complementary
rather than contradictory – especially if both sides are committed to the premise that the primary
task of research is to reconcile multiple observations in order to triangulate on an underlying
truth.8

This potential for symbiotic dialog is already evident in the prominent place held within both
NLR and ELS by the study of judicial politics: Indeed, it is quite striking that the same research
on judicial attitudes and voting patterns that Nourse and Schaffer (2009) cite as exemplifying the
“behaviorist” strand of NLR is also cited by Heise (2002) “to illustrate current trends” in ELS. A
similar overlap occurs in the areas of behavioral economics and institutional analysis, which
again get prominent play both in Nourse and Shaffer‟s synthetic vision of NLR and in various
accounts of ELS (e.g., Heise 2002; George 2006:146) .

Beyond these specific research traditions, though, the largest thing that NLR and ELS have in
common is their commitment to reinserting empirical social-scientific inquiry into the legal

8
This premise, one must note, is hotly contested by more postmodern approaches. If
every “truth” is simply one among many socially-situated narratives, then promises of
“triangulation” between quantitative and qualitative methods or between “top-down” and
“bottom-up” perspectives are hollow at best. Postmodernism enjoys hard-won but solid
footholds both in legal academia and in the humanistic social sciences, and some postmodernists
share NLR‟s affinity for pragmatist philosophy. To date, however, much (probably most)
qualitative work on law has eschewed postmodernism‟s skeptical epistemology, and for now,
NLR‟s commitment to “realism” seems more than sufficient to permit a productive dialog with
even the most ardent positivists of ELS. But not all empiricism is positivist, and a strong
postmodern turn in the NLR agenda -- or a particularly narrow positivism on the part of ELS --
could easily set the two movements asunder (cf. Chambliss 2008:25).
academy – not necessarily in the idiom of the social-science disciplines themselves, but in a
dialect that the legal academy might actually be willing to hear. In the end, this shared agenda
may trump all the more discrete disagreements between the two movements. After all, despite
their real differences, qualitative and quantitative research methods both lie on the same side of
the key methodological dividing line in the legal academy, which is the line between the
exegetical interpretation, elaboration and assessment of legal doctrine “on the books” and the
empirical observation, description and analysis of legal processes “in action.” Similarly, the
distinction between top-down legal centralism and bottom-up legal pluralism seems trivial in
comparison to the more salient distinction in the legal academy between empiricists (of all
stripes) who see the “legal” as a set of observable practices in the social world, and doctrinalists
who see the “legal” as a web of disembodied principles in the conceptual ether.

Moreover, seen from another angle, the differences between ELS and NLR also pale by
comparison with the distinction between both movements and law-related work in the social-
science disciplines. ELS and NLR are overtly (sometimes even ostentatiously) “social-science
friendly,” but they are nonetheless very much creatures of the legal academy, and they take many
of their problematics and much of their tone from that setting. Although they may not be
doctrinal in the usual sense, they both often motivate their empirical hypotheses by reference to
doctrinal puzzles and presumptions; and although they may eschew normative argumentation,
they both often deploy their empirical evidence toward prescriptive ends. Both ELS and NLR
are in large part “legal” because they hope to win over a legal audience (including more
traditional legal scholars); and this ties their agenda more closely to questions of legal doctrine
and policy than many disciplinary social scientists might expect.

Thus, although ELS and NLR may jostle for pride of place and for the allegiance of potential
adherents, they are largely comrades in arms in the larger, principled struggles of the socio-legal
academy. Their empiricism encompasses tensions between quantitative and qualitative
methods, but in the face of traditional legal studies, they are united by their preference for
observation over ratiocination. Their legalism encompasses tensions between top-down and
bottom-up research agendas, but in the face of traditional social science, they are united by their
engagement with doctrinal rather than disciplinary debates. In short, to understand why ELS and
NLR constitute a “new legal empiricism,” one must view the two movements not only in tandem
but also in context.

The Legal Academy

As noted above, the American legal academy first cast an eye toward empirical research at the
urging of the original Legal Realists in the 1920s and 1930s (Schlegel 1995). Although there is
ongoing debate about what these diverse scholars had in common (see, e.g., Leiter 2007;
Tamanaha 2008), they are generally associated with a rejection of legal formalism, in favor of a
focus on “law-in-action.” For many, this meant a turn to social context -- investigating
characteristics of the judges, or the fact patterns to which judges were responding, or less
frequently, the people whose responses to law generated those fact patterns. The original realists
drew on an eclectic combination of empirical methods, depending on the questions they were
asking: Underhill Moore‟s (1943) study of parking regulation used a quasi-experimental method
to measure changes in behavior following shifts in legal stimuli; while Karl Llewellyn‟s
collaboration with anthropologist E.A. Hoebel used classic anthropological field methods to
examine how the Cheyenne solve disputes (1941).

Commentators vary in their assessments of how this early effort at legal empiricism fared. On
the one hand, it is often said that “we are all realists now” (see, e.g., Tamanaha 2008:1) – that the
legal academy has largely accepted the realists‟ sociological insight that formal written law is
dependent on social context, and that doctrinal analysis is a poor guide to law‟s actual effects.
On the other hand, as Schlegel (1995) has pointed out, the original realists rarely engaged in
sophisticated social science research themselves; and when they tried, they were not well-
received by social scientists.

Legal realism was followed by successive social-scientifically-informed intellectual movements

in the legal academy – the legal process school, critical legal studies, feminist legal theory,
critical race theory, law and economics. Individual members of all of these schools drew on
empirical research performed by others, and a few even ventured into the occasional original
quantitative or qualitative analysis themselves; but none of these movements required law
professors to exit the library or look beyond legal texts in order to conduct their scholarship.

In 2002, Lee Epstein and Gary King mounted a strong attack on this history of casual
empiricism, highlighting serious flaws in much of the empirical scholarship published in law
reviews. Because law reviews do not use peer-review, they must rely on the judgment of law
students, who generally have no systematic training in social science research methods, beyond
perhaps an undergraduate statistics course or two. This lack of meaningful gatekeeping was a
spur to both the ELS and the NLR efforts (or more cynically, an opportunity for social scientists
to market their expertise to the law school world), and Chambliss (2008) provides a fascinating
look at the role of the two movements in struggles over law-review quality control since the
Epstein-King article appeared.

In reality, the debate over peer-review goes beyond questions of methodological gatekeeping, to
highlight tensions between the traditional norms of legal scholarship and the more social-
scientific model favored by NLR and ELS. Advocates of legal empiricism frequently bemoan
the marginalization of empirical inquiry within the established law school hierarchy: “lt would
only be a modest exaggeration to say that most law professors regard empirical work as a form
of drudgery not worthy of first-class minds. In the legal academic pecking order, empirical
research does not rank as high as theory” (Landes 2003:180; similarly Gordon 1993:2085). Even
the more nuanced analyses of Schlegel (1995) and Leiter (2007) raise serious doubts about the
new movements‟ odds for success: Law professors have long preferred the comfort of doctrinal
research to the much more labor-intensive pursuit of empirical evidence. Moreover, as Balkin
(1996:952) notes, “[social-scientific] colonization of legal scholarship ... can never be entirely
successful because law is at heart a professional, and not an academic, discipline.” Legal
academics must train future lawyers, advise sitting policymakers and assimilate an ongoing
stream of daily legal developments. Within this world, even dual-degree social scientists find
that shortened timelines and limited external funding make the standards of “normal social
science” difficult to meet. Thus, on the question of whether serious empiricism can flourish
within the legal academy, one can only say that the jury is still out.
The Social Science Disciplines
If the legal academy has been at best lukewarm toward social science, social science has been
happy to return the compliment. The problem is not that the disciplinary social sciences find law
uninteresting. Indeed, anthropologists, economists, historians, political scientists, psychologists,
sociologists, and others have conducted research on law for generations. The problem is rather
that many disciplinary social scientists have been stymied by the challenges of presenting
disciplinary research to a legal audience, and many more have had no interest in even trying.

To disciplinary social science, the legal academy can seem, at once, enticing yet aloof,
dauntingly complex yet dismayingly naive. Law schools have more resources than many social
science departments (particularly for salary, workshops, and conference travel, but also for
small-scale in-house research funding), but social scientists quickly discover that the compelling
theoretical research programs that excite NSF reviewers often draw only blank stares from law
school deans.9 But when social scientists seek to make their work more legally relevant, they
find that the legal arena can be a maze of professional arcana, booby-trapped with unspoken
expectations about background substantive knowledge and with alien norms about scholarly
argumentation and publication. Further, even when social scientists successfully navigate these
obstacles, the resulting dialogue can prove frustrating: Legal academics, although indisputably
smart, frequently lack the theoretical and methodological training to distinguish “good” social
science from “bad.”

Consequently, most of the social sciences have developed internal socio-legal studies traditions
that have little to do with the law-school world. Anthropologists study disputing practices and
legal pluralism and neoliberal law reform in the Global South, all without feeling compelled to
address issues of civil procedure or conflict of laws or sovereign immunity. Political scientists
study judicial politics and the administrative state without worrying much about the role of law
clerks or the canons of statutory interpretation or the notice-and-comment provisions of the
Administrative Procedure Act. Psychologists study procedural justice and jury deliberation
without necessarily commenting on implications for the Fifth Amendment or the fact/law
distinction or the standard of appellate review. Sociologists study law and stratification, law and
organizations, law-oriented social movements and the legal profession without particularly
caring about debates over substantive due process, shareholder derivative suits, the dormant
commerce clause, or opinion-of-counsel letters. Economists are perhaps the primary exception
to this pattern of separation between the legal and the social-scientific, with the law-and-
economics movement enjoying a fair amount of acceptance across the legal/disciplinary divide.
Law and economics, however, has purchased its success, in part, by playing up its prescriptive
potential while soft-pedaling its disciplinary links to empirical econometrics and advanced
mathematical modeling.

9
Comparisons of the resources for research in law and in disciplinary social science might
have overtones of “the grass is always greener on the other side of the fence”: Disciplinary
social scientists can envy the in-house wealth of law schools, which seem to provide a sizeable
pool of discretionary money for small-scale projects; at the same time, law professors can envy
the external legitimacy of the social sciences, which seem to provide privileged access to
external grants and institutional support (labs, computers, etc.) for large-scale studies.
Of course, all these characterizations are, to some degree, caricatures. Individual disciplinary
researchers may know and care a great deal about some or all of the “law school” things that
we‟ve enumerated above, and this is particularly true of disciplinary researchers who also hold
law degrees. Nonetheless, the desire to reach a disciplinary audience often pushes social
scientists toward a least-common-denominator presentation of legal topics – much as the desire
to reach a legal audience often pushes the new legal empiricism toward a least-common-
denominator presentation of social science theory and method.

Hence, if the new legal empiricism is to succeed in offering a “translation” between social
science and law, the movement must achieve two difficult and somewhat incompatible things:
As described above, it must persuade the legal academy that empirical research can speak to
legal issues in accessible and relevant ways. But unless and until a critical mass of law
professors have developed adequate methodological skill, theoretical sophistication, and
oversight expertise to accomplish such research on their own, the movement must also persuade
disciplinary social scientists that the rewards of conducting (or collaborating on) legally-
accessible and relevant projects outweigh the costs. Presumably, part of this persuasion will
require reassuring social scientists that empirical legal research can be conducted and presented
in ways that will not constitute deadweight on a disciplinary c.v. On the feasibility of this, the
jury is, again, still out.

The Law-and-Society Movement

Historically, the intellectual tradition that has most closely presaged the legal empiricists‟ bridge-
building and translation agenda has been the interdisciplinary law-and-society movement. The
development of law-and-society has been extensively reviewed elsewhere, and a full
recapitulation lies well beyond the scope of this essay; however the resonances and overlaps
between law-and-society and the new legal empiricism are noteworthy and revealing.

From its inception in the 1960s, the law-and-society movement has celebrated its affinity to the
original Legal Realist project and has sought to promote dialog between empirical social science
and law. Participants span the social sciences (although with a noteworthy dearth of
economists), and extend into history, linguistics, cultural studies, and other social-scientific
humanities. Law-and-society also draws many of its leading figures from the legal academy,
including several founders and past presidents of the Law and Society Association (LSA); and a
handful of law schools (including most prominently, Wisconsin, Berkeley, Northwestern,
Buffalo, and Denver) have provided important institutional support, as has the American Bar
Foundation (ABF). The flagship law-and-society journals, LSA‟s Law and Society Review and
ABF‟s Law and Social Inquiry, are peer-reviewed and well respected on both sides of the divide
between law and the disciplines. And several pieces of law-and-society scholarship have been
influential enough to garner inclusion in a recent compilation of “The Canon of American Legal
Thought” (Kennedy & Fisher 2006). In many ways, the law-and-society movement would seem
to offer a perfect template for the new legal empiricism – so perfect, in fact, that some law-and-
society participants might wonder whether a new legal empiricism would be largely redundant.

Nonetheless, law-and-society differs from the new legal empiricism in some important regards.
Most significantly, although legal scholars have always played a prominent role in law-and-
society circles, social scientists have generally set the movement‟s tone. Indeed, law-and-society
work seems to appeal most strongly to those legal scholars who have grown weary of traditional
legal inquiries and who wish to situate their scholarship within a new set of disciplinary theories
and problematics. The leading law-and-society journals carry an ample supply of legally-
relevant empirical studies, but they also delve into abstract social theories and remote cross-
cultural and historical contexts that have little immediate bearing on the practice of
contemporary American law. Perhaps because of this, the law-and-society movement has
generally held something of an “outsider” status in most law schools – more a refuge from
hegemonic doctrinalism (and recently economism) than a pathway to influence and prestige.
Moreover, this counter-hegemonic tendency has, if anything, strengthened in recent years, as the
movement has worked to preserve or enhance its inclusiveness toward historically disadvantaged
groups, critical and postmodern perspectives, and non-positivistic research agendas (Zorn
2009:22).

Thus, the relationship between law-and-society and the new legal empiricism is a complex one.
On the one hand, many researchers are active in both movements, with the ties between law-and-
society and the “broad tent” variety of NLR scholarship being particularly close (Chambliss
2008). Much NLR activity, for example, takes place in the context of the Law and Society
Association meetings and on the pages of the Law and Society Review. Seen from this
perspective, new legal empiricism seems more like a flavor of law-and-society scholarship than
like a distinct intellectual movement. On the other hand, ELS‟s relationship to law-and-society
seems somewhat more schismatic than reformist. Although ELS, like NLR, has strong law-and-
society roots, ELS is quieter about its law-and-society past and more willing to present itself as
an alternative, more scientific (read “positivistic”) venue. Moreover, ELS and NLR alike seem
chastened by law-and-society‟s historical failure to win the ear of the power-brokers in the legal
academy: Between the lines of the new legal empiricists‟ agenda statements, one can hear a
“won‟t get fooled again” cautiousness about the willingness of the legal world to embrace socio-
legal scholarship on social science‟s own terms.

Thus, the relationship between law-and-society and the new legal empiricism is a complex one.
On the one hand, many researchers are active in both movements, with the ties between law-and-
society and the “broad tent” variety of NLR being particularly close (Chambliss 2008; Nourse &
Shaffer 2009). Indeed, so much NLR activity has taken place at the LSA meetings that
sometimes this branch of new legal empiricism seems more like law-and-society‟s ambassador to
the legal academy than like a distinct intellectual project in its own right. On the other hand, the
relationship between law-and-society and ELS seems somewhat more schismatic: Although
ELS, like NLR, has strong law-and-society roots, ELS is quieter about its law-and-society
heritage and more willing to present itself as an alternative, more scientific (read “positivistic”)
vehicle. Moreover, ELS and NLR alike seem chastened by law-and-society‟s historical failure to
win the ear of the power-brokers in the legal academy. Between the lines of the new legal
empiricists‟ agenda statements, one can hear a “won‟t get fooled again” cautiousness about
whether the legal world is willing to embrace socio-legal scholarship on social science‟s own
terms, even when those terms are interdisciplinary and inclusive. Whether explicit or not, this
represents, to some degree, a break with the law-and-society project.

A Little Empiricism on Empiricism

How, one might ask, do these congruences and contrasts play out in practice? A brief excursion
into casual empiricism may offer some hints. In a systematic but less-than-fully-rigorous way,10
we coded a number of attributes of recent publications in the Law and Society Review (LSR) and
the Journal of Empirical Legal Studies (JELS). Because JELS is the flagship journal of the
Society for Empirical Legal Studies, it provides a reasonable window into at least the ELS
variant of new legal empiricism. The interpretation of data from LSR is more complex: LSR is
similarly the flagship journal of the Law and Society Association, but LSR is also a popular
outlet both for disciplinary social scientists and for legal empiricists in the NLR mold.
Consequently, LSR should probably be taken as reflecting the intersection between law and
society, new legal empiricism, and disciplinary social science, rather than as reflecting law and
society alone.

For the sake of equivalence, we confined our analysis to the four years from 2004 to 2007, the
only period for which we could obtain complete contents from both journals. For volumes
published during this observation window, however, we coded all entries for which an author
was listed, without exception. The resulting data set covers 87 articles from JELS and 94 from
LSR11

Figure 1 depicts several aspects of authorship structure in these two journals. Consistent with
ELS agenda-pieces touting the virtues of interdisciplinary collaboration (e.g., Epstein & King
2002; Heise 2003; George 2006), the JELS articles were, in fact, almost twice as likely as the
LSR articles to be co-authored (67% versus 33%) and to involve multi-disciplinary research
teams (52% versus 29%). Somewhat more problematically, JELS research teams were also
substantially more male: Virtually all (90%) of the JELS articles had at least one male author,
while only 38% had at least one female author; the comparable figures for LSR were much more
even, at 65% and 52%, respectively. Overall, the male:female ratio of all JELS authors in our
four year observation window was slightly over 3:1 – almost twice the still-lopsided 1.6:1 ratio
in LSR.

[Insert Figure 1 about here.]

To examine discplinarity, we coded the home department, school or program of the first four
authors of each article. We counted joint appointments toward all listed fields, and we collapsed
kindred fields (e.g., “Government,” “Politics” and “Political Science,”) in order to ease
interpretation. Figure 2 presents this somewhat complex data in a simplified form: the
percentage of articles in each journal that have at least one author from each field.12 Several

10
We describe this analysis as less-than-fully-rigorous because: (a) We have examined
only two journals and coded only a few relatively superficial attributes of the articles; (b) we
have relied on a single coder, rather than double-coding and computing formal measures of inter-
coder reliability; and (c) we have chosen to present only the most basic descriptive statistics,
with no multivariate controls and no inferential significance testing. Nonetheless, we believe
that these limitations are reasonable in light of the constraints imposed by a review essay, and we
feel confident in at least the general outlines of the results.
11
Original data and details of all analyses are available from the authors upon request.
12
This approach somewhat downplays the prevalence of the most popular disciplines,
patterns in this figure are noteworthy – and broadly supportive of more casual, impressionistic
claims in the literature. In addition to having more multi-disciplinary research teams (see
above), JELS articles are far more likely than LSR articles to have at least one jointly-appointed
author, by a factor of 48% to 10%. JELS articles are also much more likely to have at least one
author with an appointment in Law (JELS: 69%; LSR: 34%), in Economics (JELS: 26%; LSR:
1%), in Statistics (JELS: 15%; LSR: 1%), or in Medicine/Public Health (JELS: 14%; LSR: 0%).
LSR articles, in contrast, are much more likely to have at least one author with an appointment in
Political Science (JELS: 15%; LSR: 31%), in Sociology (JELS: 6%; LSR: 36%), or in
Criminology/Criminal Justice (JELS: 6%; LSR: 19%). Psychology is a surprisingly minor
contributor to both journals (JELS: 9%; LSR: 4%), while Anthroplogy is a surprisingly minor
contributor to LSR (4%) and an unsurprisingly nil contributor to JELS. No other fields
contribute to more than a handful of articles in either journal.

[Insert Figure 2 about here.]

Finally, to capture differences in research style, we coded some basic aspects of data analysis,
research design, and prescriptive/descriptive posture. Each of these features is far more
subjective than authorship structure, and in the absence of intercoder reliability checks, the
findings need to be read with caution. Nonetheless, the patterns are suggestive. As one might
suspect, the JELS articles were almost exclusively quantitative – and far more quantitative than
LSR (JELS: 80%; LSR: 35%). By comparison, the LSR articles were quite evenly balanced
between quantitative (35%) and qualitative (36%), with an additional 23% consisting of
theoretical or conceptual arguments without systematic empirical evidence. Commensurate
differences in methodological eclecticism also appear in matters of research design: JELS
articles were far more likely than LSR articles to rely on preexisting datasets (JELS: 53%; LSR:
26%), and far less likely to involve first-hand data gathering (JELS: 11%; LSR: 21%), or original
analysis of historical/archival materials (JELS: 9%; LSR: 31%).

Interestingly, although the two journals also differ in the prevalence of policy prescriptions, the
pattern is not quite what the rhetoric in the literature might predict: ELS is quicker than law and
society to describe itself as informing policymakers; however, the vast majority of JELS articles
(68%) were descriptive rather than prescriptive. In contrast, such ivory-tower neutrality,
supposedly a hallmark of disciplinary social science, was only a minority position in LSR (23%).
Rather than eschewing prescriptive questions, a majority of LSR articles (56%) offered a
balanced weighing of policy pros and cons. Ironically, although this sort of balancing would
seem to fit well with ELS‟s claims of policy-relevant objectivity, barely a quarter of JELS
articles (28%) actually adopted such a posture. The remainder of the LSR articles (20%) were
one-sidedly prescriptive – compared to only 5% of the articles in JELS.

[Insert Table 1 about here.]

because it counts each discipline only once despite the possible presence of multiple coauthors
from a particular field. The virtue of this approach is that it provides a simple binary index of
whether or not a particular research team had access to a particular disciplinary perspective.
At the risk of oversimplification, these findings largely confirm conventional wisdom about
methodological divergences among the new legal empiricist camps: ELS researchers are heavily
quantitative and strongly driven by the availability of pre-existing data, whereas law and society
researchers (and presumably their fellow travelers in the NLR camp) are more methodologically
eclectic and more committed to original data gathering. The analyses also confirm prior
suspicions about disciplinary affinities, with JELS taking Economics and the hard sciences, and
LSR taking Sociology, Anthropology and the like. Law and Political Science split more evenly
between the two outlets, although JELS is distinctly more popular in Law, and LSR is distinctly
more popular in Political Science. If there is a real surprise here, it comes primarily from the
findings on prescriptiveness, which suggest that ELS scholars are currently more interested in
establishing their scientific objectivity than in providing policy directives – whereas law and
society scholars are quite eager to explore the practical implications of their work, and are more
than occasionally willing to adopt a strong policy stance.

LEGAL EMPIRICISM AT A CROSSROADS: FUTURE DIRECTIONS

After a decade of progress, the new legal empiricism stands at a crossroads. Several important
choices loom, as legal scholars continue to expand the role of social-scientific methods in
addressing legal-policy questions. Four challenges seem particularly salient: maintaining
rigorous standards, balancing theory and empirics, coming to terms with methodological
diversity, and managing the tension between practical relevance and scholarly distance.

Will It Be Rigorous?
NLR and ELS have both called for increased rigor in the legal academy‟s use of social science.
In the abstract, this sentiment seems unassailable; who could object to higher quality if it were
available? The challenge lies in diagnosing and solving the problem, not in reaching general
agreement on the goal.

In their diagnosis, ELS and NLR largely agree: First, rigor (as understood by social scientists, at
least) requires particularized research training. Most social scientists spend five to ten years in
doctoral study, social learning both the methods and the theories that orient research in their
disciplines. They work under the oversight of Ph.D. committees composed of similarly trained
scholars, and they learn how to write up and publish their findings through formal coursework
and informal apprenticeships. Virtually none of this training is readily available in American
law schools, which continue to offer primarily pre-professional curricula.

Nor is the legal academy well-organized to reward or encourage the investments of faculty time
and effort that go into producing high-quality empirical research (Chambliss 2008:22, 30).
Whereas social science departments expect their faculty to pursue ongoing projects that require
external funding, original data collection, and at least occasional teaching-release time, law
schools have traditionally rewarded the quick production of “think-piece” articles that purport to
interpret time-sensitive judicial or legislative developments of interest to the legal profession.
Many legal publications are, of course, quite erudite, and the difference between these two
endeavors should not be overstated; nonetheless, the norms of legal scholarship are heavily
influenced by the perceived need to respond to “breaking news.”

These characteristics (some would say weaknesses) of law school training and infrastructure are
compounded by the practices of the law reviews in which legal academics are expected to
publish their work. Social scientists typically publish in peer-edited, peer-reviewed journals,
where experts on the relevant methodological and substantive issues provide anonymous double-
blind assessments of the rigor and quality of each manuscript. To limit the burden on reviewers,
manuscripts can be under consideration at only one journal at time; however, multiple rounds of
revision and resubmission are the norm, and manuscripts can be rejected even after extensive
efforts to address reviewers‟ concerns. While this form of gate-keeping is arduous and far from
infallible, it certainly introduces an element of quality control not found in law reviews, which
are edited by law students, which rarely seek outside reviews, and which permit simultaneous
submission to multiple journals – sometimes with authors explicitly playing off one journal
against another to obtain a better “deal.”

Even some of the most ardent advocates of social science in law schools have been forced to
admit that it is unlikely that peer review can be introduced into law reviews (Epstein & King
2002: 317, Mitchell 2004:174).13 The apparatus of student-edited journals is deeply intertwined
with the pre-professional credentialing function in most law schools, and the current system has
substantial appeal to many faculty members as well: For legal academics accustomed to quick
news about where their article will be published, the long wait that accompanies the review
process (and the accompanying work of responding to reviewers) is quite unattractive.
Moreover, the current regime‟s fast turnaround times comport well with the legal academy‟s
dominant narrative of time-sensitive policy-relevance. For the professional audience, insight
delayed can be insight denied (cf. Chambliss 2008:36).

Both ELS and NLR scholars agree that some better method of quality control is needed. ELS
scholars have tended to focus on procedural solutions. For example, Epstein and King (2002;
2003) have argued that law schools should afford professors engaged in empirical research more
training and resources – including funding and research assistants. They have also advocated the
inclusion of more methodological courses in the law school curriculum and more methodologists
on law school faculties, and they have proposed that law reviews should invite faculty members
onto editorial boards, should solicit at least one outside review of all provisionally-accepted
manuscripts, and should improve the archiving and documentation of data sets. Mitchell (2004)
pushes the documentation motif further, suggesting that law reviews should require full

13
As head of the Articles Office at the Northwestern University Law Review in the late
1980s, one of us (EM) attempted to institute a voluntary system of peer-review for articles
submitted to that journal. The effort ran into multiple problems: law professors were not used to
giving of their time to review other professors‟ articles; authors submitting manuscripts to law
reviews were not willing to forego submitting their articles to other journals; and the few authors
who got to the point of receiving reviews were unwilling to take time revising their articles
without some guarantee that the articles would then be published.
disclosure of data and methods, so as to permit ex post assessment, replication, and meta-
analysis.

NLR scholars have been more interested in the conceptual challenges of rigorous empirical
translation, suggesting that fundamental differences in the epistemologies, goals, and work
practices of law and the social sciences need to be addressed in order for law professors to make
effective use of social scientific research (Erlanger et al. 2005). In an insightful essay on such
issues of translation, Shari Seidman Diamond (herself more closely associated with ELS than
NLR) points out that social scientists need to learn from law as well (2002). Her essay notes that
even empirically-inclined law professors differ in whether they emphasize performing, using, or
critiquing social science. The best translators, she concludes, will not be law professors who
simply grab the most convenient data or methods to prove predetermined conclusions. Instead,
the law professors who take an active, curious, and respectful role in learning about social
science will lead the way into higher standards.

As Diamond points out, the attitude of the scholars working on law and social science may be
more important than any particular procedural safeguard. Peer review‟s appeal to authority as
solution can be imperfect; disclosure does not provide a panacea. The key to rigor may lie more
in humility about the enterprise itself: this is the lesson at the root of most social science
methods, which at their best train researchers to put aside their egos and pet theories in order to
be guided by empirical reality.

All of these suggestions have merit, although none will be easy to accomplish and none will be a
panacea. One interesting aspect of the current proposals is how often they echo the dominant
law-school tropes of authority (in the case of peer review) and adversarialism (in the case of
critique and replication). While this framing may enhance the likelihood of adoption, it also
creates potential blind-spots. The social sciences offer many instances of peer-review
overlooking significant flaws, and far too few instances of disclosure fostering actual replication.
Socio-legal scholars are fond of pointing out that formal control structures can sometimes
produce false confidence rather than true compliance, and this applies to research standards as
much as to any other domain. Thus the attitudes of working scholars may matter more than any
particular procedural safeguard, and the key to rigor may ultimately rest on a certain humility
about the enterprise itself: This is the lesson at the heart of most methodology training, which at
its best inspires researchers to set aside their egos and their pet theories in order to be guided by
the empirical evidence – while at the same time preserving an awareness that even the strongest
methods rarely offer more than provisional, cautious glimpses of underlying empirical reality.

Will It Be Methodologically Diverse?

The drive for empirical rigor elides, but also implicates, a second, equally fundamental question
about the new legal empiricism‟s future path, which is: “Rigor in what?” As our earlier
discussion of congruences and contrasts suggests, the clamor for increased rigor often dredges up
underlying tensions about the validity of alternative research methods and objectives. The
quantitative/qualitative debate is unquestionably the most familiar of these, but as Chambliss
(2008:25-26) notes, it may not be the only relevant split. Within the social sciences themselves,
for example, an equally salient division in recent years has been the line between causal (or
“positivist”) agendas and interpretive (or “humanist”) agendas. Both camps portray themselves
as empirical, but whereas the former emphasizes generalization and objective prediction, the
latter emphasizes particularity and subjective empathy – or what Weber (1964:10) called
verstehen (literally, “understanding”).14 Other potentially relevant distinctions that have not yet
come to the fore include the differences between confirmatory hypothesis-testing and
exploratory hypothesis-generation (Tukey 1980, Stebbins 2001); between single-method
precision and multi-method triangulation (Jick 1979, Greene et al. 1989); and between individual
attributes and relational networks (Emirbayer 1997, Wellman 1988).

ELS and NLR exhibit somewhat different gut reactions to many of these divisions, and each
tradition sometimes sees the other as falling short of “empirical rigor,” albeit in opposite
directions. But for the new legal empiricism as a whole, the most important question may not be
whether to favor one particular method over another, but rather whether to treat methodological
purity, of any sort, as a defining attribute of the movement. A hard truth about empirical
research is that different methods sometimes see different things, and hence that methodological
eclecticism tends to yield rich but ambiguous answers. As Chambliss (2008) points out, this can
create a tension between the desire (often associated with ELS) to present the new legal
empiricism as a source of definitive facts and clear decision rules, and the desire (often
associated with NLR) to present the new legal empiricism as a sensitive translation between legal
scholarship and the diverse, sometimes contradictory methodological traditions of the social
sciences. Both definitiveness and sensitivity are plausible “marketing” strategies, but they differ
significantly in their methodogical implications.

All of these methodological choices are further complicated by an awkward coincidence in the
recent trajectories of legal and social-scientific scholarship: Just as legal academics are
beginning to rediscover the observation of concrete behavior and to promote it as an alternative
to doctrinal exegesis, social scientists are beginning to rediscover the interpretation of cultural
discourse and to promote it as an alternative to behaviorist enumeration. The philosophical
underpinnings of this “cultural turn” in the social sciences are too complex to review here
(Chaney 1994, Friedland & Mohr 2004), but suffice it to say that many social scientists have
become quite comfortable with treating large classes of textual analysis as “empirical.” How
then, a skeptic might ask, does such textual empiricism differ from doctrinalism? This question
is relatively easy to answer when the texts are non-judicial (e.g., contracts versus court opinions)
or when the empiricism is quantitative (e.g., counting words versus explicating themes).
However, the question becomes more perplexing when, as is increasingly the case, “social
science” encompasses even the qualitative interpretation of judicial pronouncements. Social
scientists might argue that this new textual empiricism is nonetheless separated from traditional
doctrinal analysis by an underlying commitment to systematic methodology and non-

1414
The positivist/humanist division is often conflated with the quantitative/qualitative
debate, but in fact the two are quite distinct. Most quantitative research is indeed positivist;
however, it does not follow that most qualitative research is humanist. Indeed, within socio-legal
studies at least, many qualitative researchers emphasize objectivity, reproducibility and
generality just as much as most quantitative researchers do. Nonetheless, humanist themes of
subjectivity, insight and particularity are also heard of, especially among the subset of qualitative
researchers trained in history, cultural studies, and literature.
argumentative description. But articulating this distinction to a legal audience will be no small
feat, and some legal empiricists may be tempted to fall back on simpler methodological
dichotomies – quantitative versus qualitative, causal versus interpretive, fieldwork versus library
work – instead.

Will It BeTheoretically Informed?

Another looming challenge for the future of legal empiricism centers on the role of theory.
Social science does not live by method alone: Although disciplinary social scientists may rely
on careful empirical methods to generate reliable answers, they rely on rich theoretical
frameworks to generate important questions – and to link isolated empirical findings into larger
conceptual understandings. Law, too, has its theories, of course. But legal theory is often closer
to social philosophy than to social science, and much of the new legal empiricism seems to be
guided less by coherent general models of human behavior than by casual curiosity, common-
sense predictions, and readily available data.

The new legal empiricism is hardly the sort of “crass empiricism” that disciplinary social
scientists are warned about in graduate school, but neither is it the sort of theory-driven “basic”
scholarship that characterizes what Burawoy (2005:10) has labeled “professional [social
science].”15 Rather, especially in its early ELS incarnations, the new legal empiricism resembles
Burawoy‟s “policy” social science -- social scientific research “in the service of a goal defined
by a client,” whether a private client or a public institution such as the bench or the bar (2005:9).
Policy social science‟s aspiration is not to advance a theoretical paradigm but rather “to provide
solutions to problems that are presented to [it], or to legitimate solutions that have already been
reached.” In adopting essentially this posture, ELS differs more from the disciplinary social
sciences than from the law-and-society movement, which was also not particularly theory-driven
in its early days. But law-and-society has always harbored a deep commitment to the sorts of
reflexive self-critique that Burawoy (2005:10) labels “critical” social science. This restless
streak has sustained law-and-society‟s intellectual vitality and openness, but arguably at some
cost to law-and-society‟s acceptance within the legal academy. It remains to be seen whether
ELS will follow this same arduous path, or whether instead it will become a more complacent,
insular, and technocratic endeavor.

For those legal empiricists who feel uncomfortable not only with the shallowness of Burawoy‟s
“policy” social science but also with the aloofness of “professional” social science and the self-
absorption of “critical” social science, NLR may offer yet another option. By emphasizing the
process of translation itself, NLR necessarily requires consideration of the differing theoretical
and epistemological orientations of the fields that are being translated. NLR‟s relation to social
theory may never be quite as “totalizing” as that of disciplinary social sciences (Nourse and
Shaffer 2009:119-121), and its ability to fact-check legal “urban legends” may never be quite as
definitive as that of ELS (Chambliss 2008:24); but NLR‟s value lies precisely in its commitment
to bridging between these two worlds in an inclusive and mutually respectful way. In this, NLR
may come closest to Burawoy‟s fourth category, “public” social science, calling on scholars to

15
Burawoy speaks only of sociology, but his argument easily generalizes to social
science as a whole.
strike up “a dialogic relation between [scientist and non-scientist], in which the agenda of each is
brought to the table, in which each adjusts to the other” (2005:9).

Ultimately, Burawoy argues, the four styles of social science bear a symbiotic relationship to one
another. But symbiosis is an accomplishment, not an inevitability. Thus, a key challenge for the
new legal empiricism will be to keep its constituent tendencies in balance. To illustrate just one
danger of this high-wire act, consider the possibility that legal empiricism (perhaps under the
banner of ELS) might seek greater acceptance in the legal academy by breaking free from its
social science moorings: As this atheoretical empiricism gained traction, disciplinary socio-legal
knowledge might become even more marginal in the legal world than it is today. As legal
scholars gained the ability to answer their own methodological questions, they might quickly
lose patience with disciplinary social scientists who could not estimate a regression or run a
mock jury experiment without citing Marx, Weber, and Durkheim. And as legal scholarship
became more and more empiricist, it might leave less and less room for theoretical analyses that
critiqued the social foundations of the legal enterprise itself.

These concerns were nicely captured at a recent mini-conference, sponsored by Berkeley‟s

Center for the Study of Law and Society, on “Building Theory Through Empirical Legal
Studies” (CSLS). Among the attendees were many prominent disciplinary scholars, including
several past NSF program officers and review-panel members. All agreed that the papers were
stimulating and the dialog productive. But more than a few echoed the sentiments of one wag
who ruminated, at the end of the day that “this was a great conference; it‟s just a shame that no
ELS folks were here.”

In tandem with the law-and-society movement, disciplinary socio-legal studies have spent half a
century linking empirical research on law to broader concerns about inequality, power, social
order and social change. The new legal empiricism may yet embrace such questions itself, either
through increasingly theoretical analyses by ELS or through increasingly compelling translations
by NLR; but if not, we could be headed back to a future in which the “legal impact study” would
once again be the ne plus ultra of sociolegal inquiry.

Will It Escape the Pull of the Policy Audience?

The overtones of policy science in much of the new legal empiricism suggest that the emerging
movement will eventually need to come to terms with a challenge that the law-and-society
tradition has labeled “the pull of the policy audience” (Sarat & Silbey 1988). For a generation
now, socio-legal scholars have fought this “pull,” working to preserve a “detached” vantage
point outside the received wisdom – and the raging debates -- of the societies that they study.

To a large extent, however, the new legal empiricism‟s early successes have been built precisely
on its willingness to satisfy policymakers‟ appetite for facts about various aspects of the legal
system, from the death-penalty to civil litigation to tort awards to bankruptcy (see e.g., Eisenberg
2004; Chambliss 2008). ELS supporters are particularly quick to point to the interest that recent
empirical studies have sparked both in policy circles and in the popular press (Heise 2002;
Eisenberg 2004); but NLR, too, seems eager to produce findings that policymakers will consider
and use. For a young movement seeking recognition, this ready audience can be a crucial
strategic resource.
But policy appeal comes at a price. Framing can drive practice, and a desire to speak to
practitioners and policymakers presumably privileges the types of questions that lawyers might
ask, the types of evidence that courts might admit, and the types of answers that legislators (and
other people of action) might find useful. Moreover, because people of action are rarely,
themselves, neutral, the pursuit of a policy audience can subtly (or not so subtly) skew research
toward findings that the most “desirable” audience members will find congenial (Warren 2002).
To make matters worse, as Sarat and Silbey (1988:122) note, at the same time that the pull of the
policy audience undermines objectivity, it also privileges the appearance of objectivity: “[A]
policy audience...invites [researchers] to characterize their empirical work in the language of
science .... to treat data as if it were an undistorted window on the social world, .... and to accept
the model of value free, detached, objective inquiry.... This is one of the prices of attempting to
speak convincingly to the powerful.” Many philosophers of science would argue that research
can never achieve full “objectivity”; but the pernicious influence of the policy audience lies in
simultaneously making bias harder to resist and harder to admit.

To some extent, ELS and NLR may be predisposed to take somewhat different paths through this
minefield: ELS is presumably more prone to seek refuge in the impartial technology of
quantitative methods, while NLR may be more prone to rely on the precautionary mindfulness of
theory-based self-reflection. ELS also seems more comfortable with the top-down research
agendas of society‟s policy elites, whereas NLR seems more torn between a moral sympathy for
the bottom of the pyramid and a practical dependence on the top.

By virtue of their roots in the legal academy, however, both movements may be less well-
equipped to resist the policy audience than are the disciplinary social sciences: As Chambliss
(2008:35) observes, “the epistemological critique ultimately leads to a question of professional
vocation. Is it better to work at the margins, in a long-term project to reconstitute legal culture,
or to tackle narrow questions, framed by others, in hope of immediate impact?” As a matter of
vocation, law schools must speak to the immediate policy questions of the legal profession, and
social science departments must speak to the “totalizing” metatheories of their disciplines. Each
field can also choose, at times, to speak to the core concerns of the other; but when this happens,
the communication is almost always skewed and filtered by the vocations of both the speaker
and the audience. This skewing tends to push legal scholars (including legal empiricists) into the
arms of the policy audience, while making it difficult for disciplinary scholars to reach out to the
policy audience even when they want to.

In light of these considerations, the new legal empiricism will ultimately need to decide how
much it really wants to resist policy‟s pull, especially given that resistance would quite possibly
relegate the movement to the outer fringes, from whence it could never be heard. People of
action will act, whether or not scholars step forward to inform them. And, of course, other
scholars will step forward, even if empirical scholars hang back. Knowing this, researchers with
a serious commitment to empiricism may conclude that it is better to enter the arena – even at the
risk of some spiritual disfigurement – than to let doctrinalism (and worse) prevail by default.
Indeed, many participants in the new legal empiricism made this decision long ago, when they
chose positions in the legal academy over positions in the disciplines; it seems unlikely that they
will turn squeamish now, when they finally get a chance to exert some real influence.
CONCLUSION

In their institutional accomplishments and intellectual vibrancy, ELS and NLR attest to the fact
that a new legal empiricism is afoot. But in their philosophical and stylistic differences, ELS and
NLR also attest to the fact that many important choices and challenges remain as yet unresolved,
as the legal academy engages again (and, one hopes, more deeply) with methods and
perspectives from the social sciences.

The new legal empiricism could yet falter and fade, as have other legal empiricism before it.
The new legal empiricism could also triumph, emerging as both a dominant force within the
legal academy and a valid, methodologically rigorous, and conceptually rich social science in its
own right. Or the new legal empiricism could become a niche venture, offering serviceable
empirical answers to the policy questions of the legal sector, without directly confronting or
supplanting either traditional doctrinal scholarship or traditional disciplinary social science.

For a preview of how these various paths might unfold, observers may want to consider the fate
of similar excursions into social-scientific empiricism in the medical school and business school
worlds. In medicine, social-science theory hangs on only at the margins and in the disciplines,
while social-scientific empiricism flourishes – but only in the confinement of low-status helper
fields such as health policy and health services research. In business, by contrast, social science
scholarship abounds, with sophisticated empirical and theoretical work pervading almost every
specialty, and with business-school research often informing and even leading the disciplines
themselves. Law shares certain features with each of these fields: Like medicine but unlike
business, it is highly canonized and resistant to change. Like business but unlike medicine, its
professional practitioners employ primarily social-science rather than natural-science
technologies. Like medicine, law has close ties to the state, and it professes to serve primarily
the public good; but like business, law has close ties to commercial and corporate interests, and
its practitioners rely primarily on private payments. In light of these parallels and divergences,
the new legal empiricism could potentially follow either path; the outcome is not pre-ordained.
.
Social scientists will, of course, arrive at their own conclusions about which of these trajectories
would be best for the future of socio-legal studies, not only within but also across and beyond
disciplinary boundaries. For better or worse, however, the one stance that the social sciences
cannot afford to adopt is a posture of willful ignorance. The revival of legal empiricism is
already generating important new audiences for socio-legal scholarship and important new
competitors for socio-legal attention. For most social scientists who study law, a more receptive
audience for empirical work within the legal academy is almost certainly a good thing, and a
more diverse intellectual ecology is almost surely a healthier one. After all, not all interesting
empirical questions about law are social-scientific in the disciplinary sense, and if an additional
venue emerges, presumably more and better research will follow. But regardless of whether
disciplinary social scientists choose to embrace the new legal empiricism or to confront it, the
disciplines will face new tasks of definition and translation, and new challenges of
differentiation, assimilation, justification and persuasion. That is simply what happens when
there‟s a new kid in town.
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Figure 1: Authorship Structure of Articles in Two Leading Empirical Legal Journals
Figure 2: Disciplinary Composition of Articles in Two Leading Empirical Legal Journals

Table 1: Research Reported in Two Leading Empirical Legal Journals

Journal of Empirical Legal Studies (N=87)
DATA SOURCES
No data Original Original Preexisting Mixed Row
reported field data archival data (2ndary) data data Total
Methods
Conceptual 3% 0% 0% 0% 0% 3%
Quantitative 1% 16% 28% 41% 8% 94%
Qualitative 0% 0% 0% 0% 0% 0%
Mixed 0% 1% 0% 0% 1% 2%
Column total 5% 17% 28% 41% 9% 100%

Law & Society Review (N=94)

DATA SOURCES
No data Original Original Preexisting Mixed Row
reported field data archival data (2ndary) data data total
Methods
Conceptual 0% 0% 0% 1% 0% 1%
Quantitative 0% 13% 9% 10% 4% 35%
Qualitative 1% 17% 14% 12% 4% 53%
Mixed 0% 4% 1% 2% 3% 11%
Column total 1% 34% 23% 25% 17% 100%