empirical legal research meaning

Empirical Legal Studies (ELS)

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• First Online: 21 July 2023
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• Giovanni Battista Ramello 3 &
• Stefan Voigt 4  

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Empirical law and economics ; Empirical studies in law

Empirical legal studies (ELS) is a sibling discipline to law and economics. Conceived by a group of scholars led by a visionary researcher, Ted Eisenberg, almost 40 years ago, it has today become a disruptive approach in legal studies and beyond. ELS is currently one of the most interesting phenomena in legal academia, slowly spreading from the USA to all over the world.

Introduction

Empirical legal studies (ELS) is a sibling discipline to law and economics. Conceived almost 40 years ago, by a visionary scholar, Theodore Eisenberg, it has today become a reality. The revolution was engendered in the mind of Prof. Eisenberg and within the circle of his colleagues at Cornell Law School. It matured over a couple of decades and began to manifest itself at the start of the new millennium. In 20 years since then, it has continued to spread, to become today one of the major innovations in current legal scholarship and...

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Università di Torino, Torino, Italy

Giovanni Battista Ramello

Hamburg University, Hamburg, Germany

Stefan Voigt

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Correspondence to Giovanni Battista Ramello .

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Montpellier, France

Alain Marciano

Dept DiGSPES, Univ del Piemonte Orientale Dept DiGSPES, Alessandria, Italy

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Ramello, G.B., Voigt, S. (2023). Empirical Legal Studies (ELS). In: Marciano, A., Ramello, G.B. (eds) Encyclopedia of Law and Economics. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-7883-6_816-1

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Empirical legal studies, sometimes abbreviated as ELS, refers to scholarly research undertaken by law professors using empirical social science research methods, but ELS research focuses more on purely legal issues. The two leading journals in this field are the Journal of Legal Studies  and the Journal of Empirical Legal Studies .  These journals share the feature--relatively rare among law journals--of peer review.

[Last updated in October of 2022 by the Wex Definitions Team ]

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Empirical Legal Studies

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Eisenberg’s scholarship upended conventional wisdom that these cases were unduly clogging courts.  Eisenberg was foremost among a growing cadre of legal scholars to exploit sophisticated statistical tools to systematically explore a wide array of legal issues. Since then, and propelled by Eisenberg’s pioneering scholarship, Cornell emerged as a leading center for empirical legal studies–a field that has altered the ways in which scholars, judges, litigants, and policy-makers think about and approach many legal issues. The launch of the  Journal of Empirical Legal Studies  in the early 2000s, edited at Cornell Law School and a leading journal in the field, cemented Cornell Law School’s status as a hub for what is now an important intellectual movement embraced by a growing number of scholars around the world. A cadre of Cornell law school faculty, often in collaboration with colleagues from a diverse array of social science disciplines, are widely acknowledged as among the most influential scholars in the empirical legal studies field.

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Empirical Legal Research: Getting Started

• Getting Started
• Articles and Journals
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Research Guides

If you are not familiar with the topic, you may find that a research guide or tutorial is a useful tool to assist you with your research. We hope that you will find this guide helpful.

You should review the date the research guide was last updated. Using a research guides updated in the last year will help ensure you are relying on current information. However, if you are conducting historical research, an older guide may be helpful.

Some of the most popular guides include:

1)  Georgetown Law Library, Statistics & Empirical Legal Studies Research Guide , (Updated June 2010)

2)  Chicago-Kent School of Law,   Empirical and Non-Legal Research Resources Guide , (Updated August 10, 2010)

3)  While not specifically providing a research guide, the Empirical Research Support site   of Goodson Law Library at Duke University provides links to training tools, data-sets, and other information to assist empirical legal researchers.

Current Awareness and News - Empirical Legal Studies Blog

The ELS (Empirical Legal Studies) Blog is one of the premier sources of news and comment about empirical legal research, publications and training. Below is a feed from the blog.

Empirical Research in Law, Empirical Legal Studies or Scholarship? Why is empirical research in the law important?

While there has been some debate regarding the proper name for and definition of empirical research in law, for purposes of introduction, this guide accepts the explanation put forth by John Baldwin and Gwynn Davis in Chapter 39 of the Oxford Handbook of Legal Studies: 

"...empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have.  It is not a synonym for 'statistical' or 'factual', and its intellectual depth and significance are not determined by the empirical label ... 

Pauline Kim, University of Washington School of Law, put it similarly: 

Empirical legal scholarship involves methods developed in the social sciences and is different from traditional legal research in that it "systematically explores facts about the operation of the law and legal institutions."

Empirical research is important because "there are important questions in the law and about legal institutions that can’t be answered" through the traditional textual analysis methods of research.   For example, if a researcher is interested in researching the impact of selecting a particular rule of law on the decision making of individuals and businesses. Textual analysis would not shed light on a topic. However, we can certainly understand how an argument for a judgment accepting a particular rule of law would be strengthened by including evidence on the likely effect on "actors in the real world."

Pauline Kim, Do We Have the Numbers? Empirical Research in Law – International Law as a Case Study, Program at the American Association of Law Libraries Annual Meeting (July 10, 2006)

Funding for Empirical Legal Research

Conducting empirical research often involves significant costs, including the costs associated with collection or accessing data. As a result, empirical researchers may need to seek funds from grants awarding organizations and other funding sources. Academic researchers may find the institutional Office of Research can provide assistance in locating information about grant awarding institutions as well as assistance in preparing grant proposals. If the services of a Research Office are not available, some of the resources below will assist the researcher in seeking funding.

• American Bar Association Section of Litigation Research Fund The Litigation Research Fund was established by the section to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States. Projects addressing issues of low-income individuals' access to civil justice are of particular interest to the section and legal academics as well as social scientists and scholars from other disciplines are invited to apply for funding of their research.
• Grants.gov All discretionary grants offered by federal grant-making agencies can be found on Grants.gov. Federal grant applications can also be submitted online via this site.

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Empirical Legal Research Resources

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Selected Treatises: How to Conduct Empirical Legal Research

Representative empirical legal research works.

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This page contains a selected list of major treatises on conducting empirical legal research, as well as a selection of books that demonstrate how some scholars use empirical legal research in their writing. You may find more works on the topic using subject headings, such as "legal research -- methodology," in Searchworks , the Stanford Library catalog.

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Empirical legal research on show

The Empirical Legal Research Conference showcased the broad range of empirical scholarship within the Faculty.

Displaying the broad and expanding base of empirical scholarship within UCL Laws, around 40 Faculty members, postgraduate research students and final year undergraduate students attended the Faculty’s first student focused Empirical Legal Research Conference in Bentham House on 20 March 2024.

The internal event, organised by the UCL Centre for Empirical Legal Studies and opened by Dean of UCL Laws Professor Eloise Scotford, provided an important opportunity for emerging empirical scholars to showcase their work and engage with some of the diverse expert empirical researchers within the Faculty.

The conference commenced with an interview of Professor Dame Hazel Genn, by Professor Pascoe Pleasence, in which she starkly revealed she only became an empirical legal scholar because, as a young social scientist, she serendipitously responded to an advert looking for assistance on a new crime victim survey being conducted at the Institute of Criminology in Cambridge. She went on describe the unique technical and logistical challenges that continue to act as a barrier to rigorous empirical legal research, her disappointment that civil law focused empirical research has yet to find the scale or identity of criminology, but ended with cautious optimism that empirical legal research is now being more broadly embraced by younger researchers.

A second session saw three of the Faculty’s doctoral students present their work in progress, with a focus on their choice of empirical methods, as well as answer questions from the floor. Natalia Morales Cerda described how she always intended to focus her research into the experience of women’s political representation in Chile’s 2019-2022 constitution-making process on a programme of semi-structured interviews. Meanwhile, Sonam Gordhan and Tasneem Ghazi explained how it was only during their studies that they came to appreciate an empirical picture of context and real world practice would be essential to their research into, respectively, the role of courts in responding to climate change and the use and scrutiny of delegated legislation in different jurisdictions.

A final Question Time session, chaired by Professor Cheryl Thomas, saw a panel of relatively new members of the Faculty – Dr Amber Darr, Dr Allison Lindner, Dr Karen Nokes and Dr Pedro Schilling De Carvalho – show off the diversity of experience and empirical scholarship now established within the Faculty. As well as providing insights from very different disciplinary perspectives, the panel was also challenged by Associate Professor Isra Black to consider the extent to which doctrinal legal research is a form of empirical research.

Throughout the conference, research posters produced by final year undergraduate students, as part of their Law and Social Inquiry studies and on display in the Cissy Chu Common Room, also provided a catalyst for discussion.

The Centre for Empirical Legal Studies intends to build on the conference in the coming months by inviting the Faculty’s empirical scholars to come together to take part in a mapping exercise to fully gauge the level and forms of empirical expertise within the Faculty. This exercise will seek to identify areas of overlap in interests and the potential for both collaboration and support for junior researchers in developing skills and undertaking empirical research. 

There are also plans for a second empirical legal research conference, involving a broader array of students. Details will be revealed in due course.

Empirical Research Services

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From research design to data collection/creation to analysis and presentation of results, we support faculty working with empirical research.

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Resources for Empirical Research

This section offers broad advice on what to keep in mind when constructing a research design. Many of the points discussed below are drawn from and presented more fully within Epstein & King (2002) as well as King, Keohane, & Verba (1994) which are highly recommended sources for in-depth guidance on proper research design and execution. The first step of any empirical research study is to formulate a research question (PDF) . What does the study seek to explain? A good research question should generally conform to the following rules:

• The question should be relevant to the real world . It is important that the study seeks to provide practical and important implications for society.
• The question should contribute to an existing body of scholarly literature . By speaking to an established set of related studies, the researcher can help avoid significant problems such as duplicating or overlooking previous work. Issac Newton’s famous quote, “if I have seen a little further it is by standing on the shoulders of Giants” colorfully illustrates this rule.

Once the research question is clearly stated, the next step is to offer a clear answer to the question which is theoretically informed and from which falsifiable hypotheses can be derived. The hypothesis should:

• Be stated clearly enough to allow for a test which can determine if the proposed answer is wrong.
• Specify a relationship between an outcome (dependent variable) and one or more explanatory variables (independent variables).

If there is insufficient evidence to reject a clearly stated, falsifiable hypothesis, then the theory becomes increasingly plausible. A theory which offers many observable implications and therefore more opportunities to be tested has the potential to become a very strong theory if the hypotheses derived from it cannot be rejected.

Remember that the fundamental objective of empirical research is to make inferences —that is, using known facts to understand unknown facts. Typically we use observable data (known facts) to test certain hypotheses which are guided by theory to uncover these unknown facts.

Let’s take a look at a simple example .

• Does the scale accurately report my weight?
• When stepping on the scale multiple times, does it return a consistent weight estimate ?

Data are typically classified into two categories—qualitative and quantitative. The levels of measurement are as follows:

• Nominal data are one form of qualitative data where objects have no natural order (e.g. gender, race, religion, brand name). It does not make sense to think of Buddhism being “more than” Confucianism.
• Ordinal data are another form of qualitative data—specifically, groups which can be ranked. An example of an ordinal variable is a survey respondent’s sense of agreement (e.g. strongly agree, agree, disagree, and strongly disagree). These responses do have a natural order and can be ranked, although the distance between each response is difficult to determine.
• Interval data are one from of quantitative data which have a definite natural order and, unlike ordinal data, the difference between data can be determined and is meaningful. Interval-level data do not have a natural zero point, however. For example, 0 degrees on the Fahrenheit scale is arbitrary and therefore 100 degrees Fahrenheit is not twice as warm as 50 degrees.
• Ratio data are the second form of quantitative data. In contrast, to interval data, ratio-level data have a non-arbitrary 0 point. For example, 0 yards means no length. 100 yards is twice as far as 50 yards.

Even though qualitative data are mostly based on unordered groups, they can nevertheless be analyzed quantitatively. This is achieved by coding the qualitative data of interest into numerical values. For example, if we are running a survey, we can transform gender (nominal data) into a dichotomous (dummy) variable with each respondent assigned a 1 if female and 0 if male. Likewise, the attitudinal responses on the survey can be assigned numerical values as well, for example, Strongly Agree = 4; Agree = 3; Disagree = 2; Strongly Disagree = 1. Once qualitative data have been coded into numerical variables, they can be analyzed using both basic and advanced statistical models.

In empirical legal research, content coding of natural language text is commonly employed (see Hall and Wright, 2008 ; Evans et al., 2007 ). Content analysis is a popular methodology which, for example, can be employed to summarize characteristics of interest related to court decisions. When possible, it is always best to have individuals other than the researcher code variables as to reduce bias.

Empirical research on legal issues can rely on primary (original) as well as secondary (obtained from elsewhere) data. Bradley Wright and Robert Christensen, for example, in studying the effects of public service motivation on job sector choice, employ an original survey of law students in one study ( Christensen and Wright, 2011 ) as well as survey data from the American Bar Association in another study ( Wright and Christensen, 2010 ).

Another data collection technique is webscraping, using software to visit web sites and extract specific bits of information. Here is a tutorial on web scraping written in the R language that was prepared by Jonathan Whittinghill, the Applied Research Statistician at the HLS Empirical Research Services.

This section provides links to helpful resources on analytical methodologies—both descriptive and statistical. For further assistance, you may also schedule a meeting with the empirical research services unit at the Law Library. Where to learn about analyzing data:

Empirical courses offered at Harvard For students interested in taking courses on empirical research, there are numerous classes offered at Harvard Law School, Kennedy School and FAS. There are five tracks for student interested in empirical research methods, ranging from courses appropriate for those with no background in empirical research to courses for those students who have an extensive methodological background. A description of these tracks can be found here and a list of courses offered on campus can be found in this file prepared by Jonathan Whittinghill.

MIT OpenCourseWare classes on empirical research

Political Science

Political Science Scope and Methods (Undergraduate, Berinsky, Fall 2010)

Introduction to Statistical Method in Economics (Undergraduate, Bennett, Spring 2006)

Introduction to Statistical Methods in Economics (Undergraduate, Menzel, Spring 2009)

Econometrics (Undergraduate, Angrist, Spring 2007)

Statistical Method in Economics (Graduate, Chernozhukov, Fall 2006)

Econometrics I (Graduate, Hausman & Chernozhukov, Spring 2005)

Nonlinear Econometric Analysis (Graduate, Chernoshukov & Newey, Fall 2007)

New Econometric Methods (Graduate, Newey, Spring 2007)

Time Series Analysis (Graduate, Mikusheva, 2013)

Mathematics

Introduction to Probability and Statistics (Undergraduate, Panchenko, Spring 2005)

Probability and Random Variables (Undergraduate, Sheffield, 2014)

Statistics for Applications (Undergraduate, Kempthorne, 2015)

Sloan School of Management

Statistical Thinking and Data Analysis (Undergraduate, Rudin, 2011)

Data, Models, and Decisions (Graduate, Gamarnik, Freund & Schulz, Fall 2007)

Communicating with Data (Graduate, Carroll, Summer 2003)

Doctoral Seminar in Research Methods I (Graduate, Sorensen & Bailyn, Fall 2004)

Doctoral Seminar in Research Methods II (Graduate, Sorensen, Spring 2004)

Overview of quantitative methods (PDF) prepared by Parina Patel Statistical software packages: Stata is a general-purpose statistical software package which is popular among researchers in economics, sociology, political science, epidemiology and biomedicine among others. The statisticians at Harvard Law School primarily use Stata for data analysis.

Machines with Stata are located in the computer classroom in Langdell 353. You may also purchase Stata directly from Statacorp .

• The UCLA Institute for Digital Research & Education Stata site has many excellent step-by-step tutorials on a wide range of statistical estimation procedures using Stata.
• Germán Rodriguez, Princeton University, Stata resources also has a comprehensive overview of Stata, including data management, graphics and programming examples.
• One of the advantages of Stata is its active community of users. The Statalist is an email listserver where more than 3,500 Stata users discuss all aspects of the program. If you have a question, you are likely to find a relevant discussion in the archives of the listserver.
• Stata Press publishes excellent manuals on best-practices for a whole range of statistical estimations. Most titles can be found using Hollis. The Stata Journal is also an invaluable resource for furthering usage effectiveness.
• Downloadable material for upcoming Stata workshop

R is an open-source programming language and statistical software environment. R offers a wide variety of statistical and graphical techniques . A good description of the software can be found on the official site of R. Compared to Stata and certainly SPSS, R requires a significant amount of programming proficiency. The program is free and can be downloaded here .

• The UCLA Academic Technology Services R resources page includes a great set of introductory tutorials, frequently asked questions, analysis examples, and links to downloadable books on R.
• Germán Rodriguez, Princeton University, R page has an excellent series on getting started with R, data management and fitting linear and generalized linear models. A list of helpful books on R is also provided.
• Adler, Joseph (2010) R in a Nutshell and Muenchen, Robert A. and Joseph M. Hilbe (2010) R for Stata Users

IBM SPSS is another popular general-purpose statistical software package which can handle almost all econometric estimations. A notable difference between the SPSS and Stata/R environments is that SPSS relies much more on Graphical User Interface (point-and-click) procedures making it more user friendly. While the “vanilla” version of SPSS may be somewhat limited relative to Stata or R, there are many SPSS add-ons and modules which provide additional capabilities. SPSS can be bought directly from IBM SPSS .

• The UCLA Academic Technology Services SPSS page offers introductory material, examples, links to web books on SPSS, and other helpful resources.
• The UCLA Institute for Digital Research & Education SPSS site covers a wide variety of statistical estimation procedures using SPSS

SAS is yet another popular software package used for statistical analysis. It is generally understood as a powerful program especially when working with very large datasets. One significant limitation of SAS is its poor graphical capabilities.

• The UCLA Academic Technology Services SAS page provides introductory materials for beginner SAS users, analysis examples, web books and other resources.
• When discussing the results of a regression analysis, do not only focus on the parameters which are “statistically significant.” The researcher should also convey how “substantive” an effect each significant variable has on the outcome (dependent) variable. Holding other variables in the model fixed, for instance, what is the predicted value of the dependent variable when the significant independent variable in question is at its minimum, mean, and maximum values?
• If you are attempting to use your results to infer about a population, then you should do so while explicitly discussing the level of uncertainty of your estimates. This typically implies discussing the confidence levels of your estimates. For a fun discussion of uncertainty see Ian Ayres’ SuperCrunchers (pgs. 112-116).
• Try to avoid presentation of data and results using tables—graphs are almost always superior.

Epstein et al. (2006) “On the Effective Communication of Results of Empirical Studies, Part I” Vanderbilt Law Review 59(6): 1811-1871

Epstein et al. (2007) “On the Effective Communication of Results of Empirical Studies, Part II” Vanderbilt Law Review vol. 60(3): 801-846.

Once you are finished, you might be interested in trying to get your study published in a law school law review or in a peer-reviewed journal from a society and larger publisher. Washington and Lee’s Law Journal Submission and Ranking website , Ulrich’s Global Serials Directory , and ISI Journal Citation Reports are good resources for identifying both types of journals both within and outside of the United States. (There is a peer-reviewed journal that is actually devoted completely to empirical legal studies work, Journal of Empirical Legal Studies .While simultaneous submission of manuscripts to multiple journals is the norm for most law school law reviews (with August-October and February-April being the big submission “seasons”), most peer-reviewed journals require exclusive submissions. (Some student edited journals like the Harvard Law Review and Stanford Law Review are also starting to experiment with peer or faculty review and may prefer exclusive submissions.) You should always check the journal’s website for specific guidelines about preparing manuscripts for publication. (For example, the NYU Law Review has special guidelines just for empirical work).You might also want to consider depositing your data to make it available for replication and further use by future researchers. Some journals might actually require you to submit your data for manuscript review or for publication. While there are various options for storing and archiving your data, one of the most popular ones with social scientists is IQSS Dataverse . It has several features, including the ability to prepare data visualizations for users.

Journal of Empirical Legal Studies (Harvard Key required)

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43 The Place of Empirical Legal Research in the Law School Curriculum

Anthony Bradney is Professor of Law at Keele University.

• Published: 18 September 2012
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Empirical legal research is defined in many ways. These differences in definition are important when considering the place of empirical legal studies in the law school curriculum. In this regard, this article reflects on school curricula in law schools in the United States and the United Kingdom. Empirical legal studies are largely absent from law school curricula. One indispensable pre-condition for any law school curriculum is that it must reflect what those teaching it believe to be true. Empirical legal studies can be properly incorporated into the law school curriculum if students not only use and understand such studies but also understand the methods used and the theories upon which they are based. Law schools throughout the world are in a state of flux. Empirical legal research has to compete for the attention of academics in law schools with a number of other areas of research that are becoming more popular.

Introduction   1026

The Present Place of Empirical Legal Studies in the Curriculum   1028

What Place Should Empirical Legal Studies Have in the Curriculum?   1033

Can Empirical Legal Research Be Incorporated into the Curriculum? 1036

Conclusion   1040

I. Introduction

E mpirical legal research is defined in a number of different ways. These differences in definition are important when considering the place that empirical legal studies does or should have in the law school curriculum. Thus, for example, King and Epstein have a very broad definition of the term, including even doctrinal analysis, leading them to conclude that “virtually all legal scholars” conduct empirical research (King and Epstein, 2002 : 18). Using this definition it would be true to say that virtually all law school curricula that currently exist or that can be envisaged for the future involve the study of empirical legal material. However, most definitions of empirical legal research are much more restricted than that formulated by King and Epstein.

The editor's introduction to the first volume of the Journal of Empirical Legal Studies states that the “JELS's editorial board is committed to providing expert statistical evaluation of manuscripts with the goal of raising the level of statistical sophistication in empirical legal scholarship” (Eisenberg et al., 2004 : v). This focus on quantitative methods is characteristic of the relatively new empirical legal studies movement in the United States that has found concrete expression in the Journal of Empirical Legal Studies , first published in 2004, the Annual Conference on Empirical Legal Studies, first held in 2006, and the Society for Empirical Legal Studies. However, this definition of empirical legal research has little resonance outside the United States, where empirical legal research is usually understood to encompass both quantitative and qualitative studies of legal phenomena. Thus, for example, Baldwin and Davis begin their study of empirical legal research by writing that the term “is not a synonym for ‘statistical’ or ‘factual’ … ” (Baldwin and Davis, 2003 : 881). In this Chapter, because the definition has greatest global currency, empirical legal research will be taken to be studies conducted at least partly by quantitative or qualitative methods of data collection and analysis. The questions for this Chapter are the extent to which such research is or should be found in law school curricula.

Consideration of the place of empirical legal research in law school curricula needs to begin with two caveats. First, law school curricula, like law students, law schools, legal academics, and anything else related to university legal education, are not uniform in their nature throughout the world. The differences between them are frequently structural in their form. They relate, among other things, to the relationship that law schools have with their parent universities and the legal professions in their jurisdiction. Comparisons between curricula from different jurisdictions can be made but, if they are to be accurate, they need to be sensitive to the cultural context of the teaching and learning being discussed (Bradney, 2007 ). These general observations about the difficulty of comparative work in legal education are particularly pertinent to the subject-matter of this Chapter. Thus, for example, in the U.S. the case for expanding the place of empirical legal research in law school curricula is largely made on the basis that students, once they have graduated, “will need the [empirical] skills to evaluate such [empirical] research, whether for clients, senior members of their law firms, or judges … ” (Epstein and King, 2003 : 313). Implicit in this argument are the notions that graduates from the law school are going to be lawyers and that the role of the law school is to educate them for that profession. Both these positions are rarely contested in the U.S. and form the basis for most evaluations of law schools and their pedagogy (see, for example, Sullivan et al., 2007 ). However these propositions are plainly not applicable to England and Wales where only a minority of law graduates go on to qualify as lawyers and where the vast majority of legal academics in academic law schools do not see themselves as educating students for the legal professions (Cownie, 2004 : 75–8). A different case for the place of empirical legal studies in the curricula of English and Welsh university law schools thus needs to be made out. Other jurisdictions will have their own views on the role of the legal curriculum, which will in turn have an effect on the place of empirical legal studies within that curriculum.

The curricula that are specifically referred to in this essay are, in the main, those found in law schools in the United States and the United Kingdom. This is because reliable data about legal education is in short supply. Rochette and Pue note of Canadian law schools,

[l]awyers, law students and legal academics hold tenaciously—furiously even—to opinions about legal education. So too do university administrators, politicians, law society benchers, media pundits and others, but virtually no scholarly research focuses on what actually happens in legal education. Opinion in these fields is undisciplined, entirely unconstrained by reliable verifiable data or evidence of any sort (Rochette and Pue, 2001 : 167–8).

As with Canada so with the rest of the world. Even in the U.S. and the UK, where the study of legal education is relatively well developed, there are comparatively few surveys or other studies that give a clear picture of the practice of legal education, writing instead tending to focus on issues of policy and pedagogy. Again this is general observation is particularly relevant to this essay. A questionnaire about empirical legal research in the curriculum sent out in 2009 by the Socio-Legal Studies Association in the United Kingdom begins by noting the paucity of information about this matter (› http;//www.york.ac.uk/law/LERSNet/empirical_research.htm ‹). A second caveat is therefore that the observations in this Chapter are necessarily tentative.

Finally, one further definitional point needs to be noted. Curricula in law schools cover a wide variety of courses. Law is taught at undergraduate and postgraduate levels and what this distinction means varies from country to country. Law can be taught as an academic or a professional subject and, again, what this distinction means varies from country to country. Law can be taught in isolation or as part of a joint course of study, combined with some other academic discipline. Law can be a single module within a course that focuses on something else. This Chapter refers to curricula for academic law degree courses which provide the student's first exposure to the systematic study of law, whether or not they also lead to professional qualification, because it is these courses that are usually the focus for teaching and learning within the law school. Even when specified in this manner the curricula to be analyzed still encompass a variety of academic programs including undergraduate degrees taught to students first entering university and law degrees taught to students all of whom have previously undertaken undergraduate studies in other academic disciplines. Some have argued that empirical legal material should be included in a much broader range of law school curricula than those that are considered in this Chapter. Thus, for example, one might consider the place of empirical legal research in the curricula of Masters courses or other programs offered by law schools (see, for example, Genn et al., 2006 : 40–1). Looking at the place of empirical legal studies in curricula other than those considered in this Chapter changes the detail of the argument but does not change its general direction.

II. The Present Place of Empirical Legal Studies in the Curriculum

Law school teaching and learning is largely part of the private life of universities. What goes on in seminars and lectures is mainly hidden from the outside world. There have been few surveys of law school curricula and those that have been conducted provide little detail about the content of individual modules (see, for example, Johnstone and Vignaedra, 2003 ). Even studies of individual subjects taught within the law curriculum do not supply information about precisely what course materials are used or do so only anecdotally (see, for example, Lynch et al., 1993 : 225–35, and Burton et al., 1999 : 111–13). Notwithstanding the lack of any reliable empirical data on this matter, it is clear that empirical legal studies are largely absent from law school curricula. Given their purpose, student textbooks can serve as accurate proxies for the content of individual courses. Reference to empirical legal research, no matter which jurisdiction is being considered, is largely missing from such works. In part this reflects the paucity of such research. However, even where empirical legal research has been done, most textbooks continue to focus on doctrinal material and fail to mention empirical data.

In jurisdictions such as the U.S. the lack of impact of empirical legal studies on the curriculum might seem unsurprising, given the well-documented failure of non-doctrinal approaches of whatever kind to have any significant impact in the law school (see, for example, Austin, 1998 ). The continued dominance of Socratic teaching and the case-book model allied with the marginal place of non-doctrinal scholars in American law schools leads almost inevitably to the general invisibility of empirical legal research within law school curricula (Mertz, 2007 ). Of course, not all law schools in the U.S. take a purely doctrinal approach to their curriculum, as is illustrated by, for example, the “Law-in-Action” method used at the University of Wisconsin (‹ http://www.law.wisc.edu/law-in-action/davislaw-inactionessay.html ›). Where alternative approaches in curricula are to be found they may be more hospitable to the use of empirical material. Equally, even law schools that take a mainly traditional approach to the curriculum may put on some courses that feature empirical work. Merlino et al.'s recent study (2008) shows both that some such courses exist and that institutions that had students with higher LSAT scores were more likely to offer such courses than those institutions whose students had lower scores. American textbooks with empirical content do exist and they have some influence on some law school curricula. In 2005, for example, Contracts: Law in Action , then edited by Macaulay, Kidwell, and Whitford, first published in 1995 with a slightly different authorial team, was used in 20 law schools (Macaulay, 2005 : 402). Empirical legal research does exist and has long existed in the curricula of American law schools, and there is currently, as there has been on occasions in the past, a flurry of enthusiasm for it. Nonetheless, its present place in the curriculum remains marginal. This is arguably unsurprising since it mirrors the place that doing empirical legal research has had in law schools in the U.S. Schlegel has written that “[t]he impetus to do empirical legal research never really died out in at least the elite [American] law schools” (Schlegel, 1995 : 238). However, he also suggests that the history of empirical legal research in American law schools is one of “a recurrence of cases of modest success followed by … well … nothing” (Schlegel, 1995 : 211).

The neglect of empirical work in student textbooks is more puzzling in England and Wales than in the United States. On the face of it, conditions for the reception of empirical legal studies are much more propitious in England and Wales than they are in the U.S. Purely doctrinal analysis is no longer central to what is being done by legal academics. An ethnographic study of academics in English law schools suggests that only half of all full-time legal academics in contemporary English law schools see themselves as being doctrinal lawyers and only 20% describe themselves without qualification as being doctrinal in their approach (Cownie, 2004 : 54–8). Cownie's conclusion was that the majority of legal scholars in her study were in fact socio-legal in their approach in that they drew on, at least in part, a range of disciplines in the humanities and social sciences in their work (p. 58 ). The value of using methods and concepts from academic disciplines other than law is now widely accepted within most United Kingdom law schools. Many scholars in British law schools who would describe their work as being socio-legal hold prominentpositions within academic life as, for example, heads of law schools, leading members of professional bodies for academics working in law schools and members of external audit bodies such as the Research Assessment panels (Bradney, 2003 : 9–11). If the majority of legal academics value the use of non-doctrinal material in the study of law and if at least some of those scholars are in positions of academic influence why is it that empirical legal research does not find its way into textbooks?

The current absence of empirical legal studies in contemporary curricula in England and Wales results from a number of factors. First, an acceptance of the importance of the use of methods and concepts from outside the law school does not necessarily lead on to a desire to engage personally in empirical legal research, unless such research is conceived very broadly. The Nuffield-funded enquiry into empirical legal research in the United Kingdom noted that it was “clear that empirical study of the operation of law and legal processes represents only a modest part of the body of socio-legal literature” (Genn et al., 2006 : 3). Many socio-legal scholars in the United Kingdom use empirical work without themselves frequently, if ever, undertaking such research. Other British socio-legal scholars pursue work that is theoretical in its nature and touches lightly, if at all, upon empirical work. Theoretical work can itself be regarded as being empirical legal research (Twining, 2009 : 226). Hart described The Concept of Law as “an essay in descriptive sociology” (Hart, 1961: viii). However, it is empirical only in a much wider and looser sense than is normally understood. While scholars who are mainly engaged in theoretical work may accept the legitimacy of empirical legal research as understood for the purposes of this Chapter and, in principle, see a place for it in the law school curriculum, they will not necessarily be at the forefront of introducing it into the curriculum. The pre-eminence of socio-legal studies in the law school does not therefore necessarily lead to the presence of empirical work in the curriculum.

Although socio-legal studies now dominate the legal academy in the UK, this is a relatively recent phenomenon. Doctrinal law had ascendency within British university law schools for much of the twentieth century and textbooks published during that period reflected that fact. Many of these textbooks continue to be in print and while their authors change with time, the structure of the textbooks changes more slowly. Moreover these long-standing textbooks set a pattern that newer books continue to emulate. The importance of this should not be underestimated when considering the nature of learning. A textbook recommended for a course has considerable authority for the students who use it. Other reading recommended by an academic that falls outside the compass of the textbook may, because of that fact, be regarded as less compelling by students. From the student's perspective doctrinal learning may still have a superior status, given the textbook that is recommended, even though those teaching the course do not themselves take a purely doctrinal stance.

It is possible for a textbook to strike out in a new direction. Thus, for example, Tillotson's textbook on contract law, Contract Law in Perspective , which was first published in 1981, set out to relate contract law to a range of non-legal material including some empirical matter. The “Law in Context” series, first published by Weidenfeld and Nicolson and now published by Cambridge University Press, was intended to bring material from the social sciences and other academic disciplines into the analysis of law, with its first volume in 1970 being Atiyah's Accidents, Compensation and the Law . It now includes textbooks, research monographs, and books that fall between the two. In books of this kind there is often some reference to empirical data. Nevertheless, in the mainstream of textbooks and teaching it remains the case that very little if any reference to empirical research is made. This, however, is not true for all subjects taught within English law schools.

Some subjects such as law-and-economics and criminology do include significant amounts of empirical work. However, these subjects are only taught in a minority of law schools and have had relatively little impact on more mainstream subjects such as criminal law. In several areas of legal study commonly taught within England and Wales empirical work has taken on a greater prominence in teaching than is to be found elsewhere. Two of the more obvious examples of this are family law and legal system. In both of these areas most of the leading textbooks now make regular if not frequent use of empirical data in their analyses. Moreover, this is not just a recent innovation. For example, Cretney's Principles of Family Law , now in its eighth edition, was first published in 1974, while Smith and Bailey's The Modern English Legal System , now Smith, Bailey, and Gunn on the Modern English Legal System , was first published in 1984. Both books are and always have been firmly socio-legal in their approach, and empirical data has always been part of their content. Why there is greater interest in empirical research in these areas of teaching is not clear. Family law is a relatively new sub-discipline within English law schools and may therefore not be so affected by the history of doctrinal study as some other law subdisciplines. On the other hand, legal system textbooks have a much longer history that takes them back to the first half of the twentieth century, when doctrinal approaches were dominant. Both these areas have been the subject of considerable reforms in the past few decades and both relate to important areas of public policy. However, this could also be said of other areas of legal study where textbooks do not engage with empirical research. There does not appear to be any compelling reason why empirical legal research should be found in textbooks in these areas and not in other areas. The fortuitous intellectual interests of a small number of individual textbook writers may be the most important explanation for this phenomenon.

Even in areas such as family law and legal system, where empirical legal research is found in the curriculum in England and Wales, its presence should not be overstated. Empirical legal research has a small place in the curriculum compared with doctrinal analysis and policy arguments that rely only lightly on empirical evidence.

The use of empirical research in teaching is the exception rather than the norm in both the U.S. and England and Wales. Individual courses, individual textbooks and sometimes individual law schools belie this generalization. Nevertheless, in both places the use of empirical research in teaching is unusual. Other jurisdictions do not deviate from this pattern. Thus, for example, Rochette and Pue's study of the University of British Columbia's law curriculum found that 73% of student time was devoted to doctrinal study or skills acquisition (Rochette and Pue, 2001 : 185). Any other approach, including the use of empirical legal research, had to find its place in the small minority of the student's time that remained. Of Canadian law schools generally Macdonald observes that, notwithstanding the fact that “law and society and socio-legal programmes have proliferated throughout the university,” “most faculties … reinforce a court-centric, anti-intellectual, remedial perception of law” (MacDonald, 2003 : 6 and 16). Empirical work does not seem to have achieved any prominence. Shanahan's study of English-speaking Ontario law schools found that while doctrinal scholarship was denigrated by academics that she interviewed, in practice it was the second most common approach to scholarship, theoretical work being slightly more favored, with less than 3% of academics producing empirical research (Shanahan, 2006 : 36). She concludes that in their teaching “[academics] are clearly closely connected to the profession” (p. 49 ). In Australia, Johnstone and Vignaendra's 2003 report on legal education noted the strong commitment to teaching basic legal principles in Australian university law schools whilst also stressing the fact that many, if not most, newer law schools set out to offer an alternative to traditional forms of legal education (2003: 29 and chapter 2   passim ). Cowley argues that “[l]aw is now largely taught by legal academics with postgraduate qualifications, whose teaching is informed by wide-ranging and in-depth research. … The reality is … that in the 21st century, an LLB is not a narrow vocational degree program” (Cowley, 2008 : 284). However other commentators have stressed the hold that doctrinal and professional approaches still have on the practice of legal education in Australian law schools (see, for example, James, 2004 ). Thornton's description of the replacement of socio-legal academics with “professionally-oriented” academics at La Trobe University, in the context of a general analysis of the corporatizing tendencies of Australian universities, does not suggest that Australia is particularly hospitable to the idea of using empirical legal studies in the curriculum (Thornton, 2006 ). Johnstone and Vignaendra's survey noted that while two Australian law schools thought it was very important that students learnt how to conduct empirical research, five thought that it was not at all important (Johnstone and Vignaendra, 2003 : 29). In New Zealand, Chart reports the centrality of doctrinal law to the curriculum, while, in South Africa, Lenta writes of the “emerging consensus that practical legal skills are to be elevated at the expense of theory and theoretical disciplines,” the study of empirical work seeming to not even have a place in the debate (Chart, 2000 : 191–2; Lenta, 2002 : 846).

Law schools in each jurisdiction have their own unique answer to the question of what the curriculum should contain. These answers reflect the law schools' response to the various different pressures that they are under from government, the legal professions, students and others. However, it would appear to be the case that almost every one of those unique answers includes the proposition that there is very little need for the presence in the curriculum of anything other than the most limited amount of empirical legal research.

III. What Place Should Empirical Legal Studies Have in the Curriculum?

One indispensable precondition for any law school curriculum is that it must reflect what those teaching it believe to be true. No other criterion of what should be included in the curriculum can trump the importance of individual academic freedom (Russell, 1993 ). This is so even where, as is the case in the U.S., law schools see themselves as having a responsibility to educate students for the legal professions. If academics cease to teach what they believe to be true and instead teach what others think is important they cease to be academics, becoming involved in training rather than education. As Fiss put it in the interchange which followed the publication of Carrington's “Of Law and the River”:

[l]aw professors are not paid to train lawyers, but to study law and to teach their students what they happen to discover. The law school … is an integral part of the university, and by virtue of that membership and all the commitments it entails must be pure in its academic obligations (Martin, 1985 : 26).

Academic freedom in teaching is in this sense a duty not a right. This freedom is broad and rules out (among other things) demanding that an academic take an approach to the curriculum that they do not accept is warranted. It would be no more correct to insist on an individual academic incorporating empirical legal research in their teaching than it would be to seek to make a doctrinal lawyer take a socio-legal approach to their course. This having been said, there are good arguments that might persuade some academics that empirical legal research has utility in the curriculum.

Quantitative and qualitative empirical research into law and legal processes provides not just more information about law; it provides information of a different character from that which can be obtained through other methods of research. It answers questions about law that cannot be answered in any other way. To ignore empirical legal research is thus to ignore some of the things that can be said about law and thereby decrease our potential knowledge of law. It is this unique character of empirical legal research that provides the prima facie justification for its presence in the curriculum. This is not to suggest that empirical legal research will always be the appropriate way of answering questions about law. Other research methodologies also have their own unique character. However, none of them, individually or together, can replicate what empirical legal research can do.

Arguments about the content of the law school curriculum are, first, about the degree to which it should be vocationally and professionally oriented as against the degree to which it should be academic and concerned with a liberal education. Secondly such arguments are about the extent to which the law school should focus on the analysis of legal rules or, instead, look at a range of other questions about legal phenomena such as the efficacy of law, the realities of the operation of the legal system or the nature of law. However, no matter what choice is made as regards these issues, arguments for the place of empirical legal research in the curriculum can be made. Empirical legal research can find a proper place in curricula that are designed to serve the needs of law schools that seek to prepare students to be lawyers and also those that seek to provide a liberal education in law. However, the nature of the curriculum does have an impact on the type of empirical legal research that is appropriately included in it.

If a law school curriculum's purpose is simply to allow students to learn about law, empirical legal research has, for the reasons above, a place in it; failing to include empirical legal research in the curriculum, is to exclude a distinctive form of learning from the curriculum thus impoverishing the student experience. However, not all school curricula are so broadly conceived. In such instances, more specific arguments for the place of empirical legal research are needed. Where, for example, a law school's curriculum is narrowly doctrinal, concerned only with examining the content of legal rules and the primary authorities for those rules, then empirical research is only relevant if it can be shown to be pertinent to those authorities. Danner contends that this is precisely the case in the U.S., arguing that “throughout the twentieth century, U.S. courts have considered and cited increasing amounts of legislative history, social science data, scientific research, and other types of information in addition to the cases and statutes, the traditional authorities cited in judicial opinions” (Danner, 2003 : 192). Whether Danner is correct and whether his observations are also valid for other jurisdictions is a matter for both empirical investigation and debate. If a law school's curricular concerns are professional, focusing on training its students to be lawyers, empirical legal research is relevant only if it can be shown to be useful for lawyers. A law school such as this is not concerned with enhancing its students' knowledge of law per se. Its interests are instrumental. Again, whether knowledge of empirical legal research is of benefit to practicing lawyers is a matter for investigation and debate. Jackson argues that “[l]awyers—whether corporate counsel or public interest advocates—must work in a world in which arguments are phrased in quantitative terms and presentation of data are critical to effective advocacy” (Jackson, 2003 : 321–2). An ability to understand at least some forms of empirical legal research would therefore seem relevant to the skills involved in presenting and analyzing quantitative material. However, in a study of English solicitors, Bermingham and Hodgson report that numeracy ranks only 12th out of 16 skills and attributes that solicitors seek in trainee lawyers (2001: 22), the solicitors ranking analytical skills and literacy most highly, suggesting that a knowledge of quantitative empirical legal work might not be perceived to be relevant to practice. Empirical legal research may also be appropriate to the professional curriculum where it is concerned with examining the working lives of lawyers or the institutions in which they work.

The more a law school aspires to offer a liberal education the more important empirical legal research becomes. At first sight this proposition seems to be counter-intuitive. Providing new and more precise information about law and legal processes is exactly what lies at the heart of empirical legal research. However, in a liberal education it is knowledge not information that is sought; knowledge, in this sense, being

something intellectual, something which grasps what it perceives through the senses; something which takes a view of things; which sees more than the senses convey; which reasons upon what it sees, and while it sees; which invest it with an idea (Newman, 1960 : 85).

Like skeptical enquiry and awareness of individual autonomy in learning, ideas are more central to the liberal curriculum than the accumulation of facts (Bradney, 2003 : Ch. 2 ). Empiricism and the concept of a liberal education, on the face of it, therefore, appear to contradict each other. However, a liberal education is an education about the world. If a liberal education enables us to “call … [our] minds … [our] own” and puts “the mind above the influence of chance and necessity, above anxiety, suspense, unsettlement and superstition” it does so, in part, by enabling us to comprehend the corporeal world around us (Nussbaum, 1997 : 293; Newman, 1960 : 104); knowledge, for this reason, “requires a great deal of reading, or a wide range of information” (Newman, 1960 : 97). In the case of law schools that aim to provide a liberal education, information about law, all types of information about law, must be part of the basis for achieving understanding. In such schools, empirical legal research is important not for its own sake but for how it can potentially assist analysis.

All of this having been said, some of the information provided by empirical legal research is not necessarily of utility in any law school curriculum at all. Empiricism can be “crass” or “mindless” (Suchman, 2006 : 3; Chambliss, 2008 : 37). Factual information, even factual information that has been accurately gathered, can be trivial in itself and of little import in understanding law or legal processes. It is also the case that some empirical legal research has been the subject of persistent criticism. Questions have been raised about methodological quality and objectivity, among other things (Chambliss, 2008 : 20–1). One of the self-stated aims of the empirical legal studies movement in the United States is to address some of these perceived failings and to produce more valid findings. However the work of this movement is itself regarded with suspicion by some because it is seen as being too focussed on state law, ignoring law that emanates from other sources, and too resistant to social theory (ibid: 2008: 37–8). For some, empirical legal research into law is, or can be, a “scientific” way of researching law and meritorious because of this (Ulen, 2004 ). Yet, for others, skepticism about the nature and value of science should be part of the process of research (Erlanger et al., 2005 : 342–3). “[U]nlike most social scientists,” writes George, “ELS scholars generally offer some connection between their positive results and normative alternatives” (George, 2006 : 146). However, this connection between doing research and making policy suggestions, a source of pride for those within the empirical legal studies movement, can itself be seen as a failing if it becomes too much concerned with the prompting of social change and too little concerned with understanding what New Legal Realism describes as the “multicausal, nonlinear, reciprocating, recursive interactions between law, the environment in which it works, and the ideas that people have about it” (McEvoy, 2005 : 434).

Empirical legal research is thus not always valuable in the curriculum. Only good empirical legal research is valuable; but the notion of what is good and bad empirical legal research is itself contested. Moreover it is not enough for academics, acting as gatekeepers, to incorporate good empirical legal research into the curriculum. In a doctrinal context student learning fails if students can do no more than recite legal rules without being able to trace the reasoning that results in the rules. Similarly, with empirical legal research, students need to be alive to potential methodological and theoretical failings in such studies as well as conversant with the conclusions drawn by them. Traditionally law schools have been a place where students learn how to distinguish bad doctrinal arguments from good doctrinal arguments. If empirical legal studies are to have a full place within a curriculum, students must themselves be able to debate what is good and bad research.

IV. Can Empirical Legal Research Be Incorporated into the Curriculum?

Empirical legal studies can only be properly incorporated into the law school curriculum if students not only use and understand such studies but also understand the methods used and the theories upon which they are based. Otherwise they will be encouraged to take a surface rather than a deep approach to their learning (Ramsden, 1992 : Ch. 4 ). However, this creates an immediate resource problem for law schools. First, students will best learn such methods and theories if they have time in the curriculum when they focus on the methods and theories and the problems that surround them as opposed to the studies that result from the use of the methods and theories. Secondly they then need regular opportunities to apply that learning to particular empirical studies. Repetition is vital to the learning of most students. In these respects, best pedagogical practice in relation the empirical study of law is no different from that relevant to the doctrinal legal approach that has traditionally dominated law schools. Doctrinal learning is best done when it involves repetition and is supplemented by courses devoted to legal method; as with doctrine so with empirical legal research.

Providing courses on methods in empirical legal research is problematic for law schools. The curricula in law schools are already crowded and providing a course in empirical research methods, which logically has to be compulsory since it lies at the base of student learning, would further exacerbate this difficulty. Moreover, while there is the same intellectual justification for such a course as there is for a course in doctrinal method, the use that students will make of the material they cover will, in almost all law schools, be much more limited than is the case with doctrine. Teaching depends upon the research material available and tends to lag behind that material. Even if law schools want to make more use of empirical legal research in their teaching, the shortage of it means that there are severe limits to what they can do within the foreseeable future. Doctrine infuses many courses in the law school but empirical research is found far less often in the curriculum. It is thus harder to justify the time spent on a course that is likely subsequently only to be irregularly used by students in their studies. These pragmatic arguments suggest that law schools may find it difficult to create the space in the curriculum for a complete course, still less a range of courses, on empirical research methods and theories. An alternative solution would be to change existing courses on legal method so that they covered not just doctrinal method but also the other approaches that legal scholars now take to legal research.

Empirical legal research draws upon a diverse range of methods and theories.

George suggests that even the empirical legal studies movement, which has coalesced round the Society for Empirical Legal Studies and the Journal for Empirical Legal Studies , with its relatively narrow definition of what constitutes empirical legal research, covers (among other things) “behavioral law and economics, judicial politics, positive political theory [and] experimental economics” (George, 2006 : 146). Chambliss notes that the founding members of the Society for Empirical Legal Studies have PhDs in a range of disciplines including economics, education and social policy, psychology, and political science (Chambliss, 2008 : 32–3). The wider definitions of empirical legal research noted at the beginning of this chapter include an even greater range of methods and theories. What can be put into a methods course and what can safely be left are therefore fraught questions. These questions are made even more problematic by the fact that the appropriateness of various empirical legal research methods is itself subject to intense and inconclusive debate. When King and Epstein set out the “rules of inference” that they thought ought to underlie empirical legal research and called for all law schools to set up a research methods course in quantitative and qualitative research methods, they were met with the immediate rejoinder that their account of those rules was itself fundamentally flawed (King and Epstein, 2002 : 116; Goldsmith and Vermeule, 2002 : 159–60).

In part the problems outlined above are familiar in the law school. While some scholars have clear views on what constitutes doctrinal method, those views are contested by others. The debates about doctrine are sometimes about matters of detail and nuance. However, they can also be about matters fundamental to the nature and application of doctrine. For example, the views of Critical Legal Scholars on the nature of doctrine are at a polar extreme from those that were traditional in the legal academy in most of the common law world for much of the twentieth century and which continue to be supported by some in the twenty-first century. It is nothing new to note that the academy is riven with disagreement and that courses offered to students, if they are to be educationally appropriate, have to give those students access to the arguments that are taking place within a discipline. However, with regard to empirical legal studies the problem is one of scale. To give students access to debates about method and theory within one discipline is one thing; to give them access to debates that are occurring in the very large number of disciplines that legal scholarship now draws upon is a completely different undertaking. “[I]n virtually every [academic] discipline that has begun to develop a serious empirical research program, scholars discover methodological problems that are unique to the special concerns in that area” (King and Epstein, 2002 : 117). Because of this, a general course in methods and theory runs the risk of being so superficial as to lead to a misunderstanding of the nature of the research enterprise being considered, thus thwarting the fundamental aims of the course.

What a course in empirical legal research methods should contain is one pressing problem for a law school. Another equally intractable problem is the question of who is to teach whatever course is offered. Only a minority of legal academics in any jurisdiction frequently engage in empirical legal research and therefore have even possibly have the competence to teach such a course. Moreover, when they do undertake such research their knowledge may be limited to those methods and theories that they themselves use. It is certainly unlikely to cover the whole area of empirical legal studies. There are, of course, academics in other disciplines in the university who will have knowledge of research methods and theory. However, whether they will have the range of knowledge that is necessary in the field of empirical legal research taken as a whole or whether they will have the disposition to teach law students is another matter. Moreover, even when the focus of the course is on issues of method, law students will need to see its potential relevance to their law studies if they are to engage with it. Academics from outside the law school may find engaging students even harder than do academics from inside the law school. Courses taught by those in law schools or academics from outside the law schools are not the only options. Courses can also be taught by a combination of staff drawn from both within and outside the law school, but this may come at the expense of coherence in the course. In areas of substantive law, law schools will expect to staff their courses with academics who regard these areas as part of the mainstay of their research or at least their teaching. Few law schools seem likely to be able to do the same if they attempt to put on a course in empirical legal research methods and theory. If this is the case, student perception that empirical legal studies are marginal in the law school may in fact be further enhanced by their experience of a course on method.

The final problem for a course on empirical methods in the law school lies with the students in the law school. As was noted above, once the decision to include empirical legal studies in the curriculum is made, and once it is accepted that a methods course is a prerequisite to such a course, it becomes necessary for the student body as whole. However, students have their own expectations of what law school will entail. Those expectations do not necessarily chime with what the law school sees as its mission (Cownie, 2004 : 76–8; Bradney, 2003 : 71; Thornton, 2006 ). Given the history of legal education, most law students are likely to come to law school with the belief that it will be a text-based education concerned with the analysis of words. The fact that they wish to enrol in such a course suggests that they believe that they will be competent in that form of learning. The further a methods course moves from text-based data the more resistant students are likely to be to engaging with it. The fact that law students might not wish to see a course on empirical legal methods in the curriculum does not mean that it should not be there. A disjunction between law school mission and student expectation does not necessarily lead to the conclusion that there needs to be a change to that mission, unless a purely commodified view is taken of legal education. Law students rarely, if ever, have the necessary knowledge to judge what will constitute the most effective curriculum. However, student expectation has to be taken into account when constructing courses. Law students do not explicitly elect to study empirical, and in particular quantitative, methods in the way that, for example, economics students do. This has to be taken into account in course design. Students on such courses may be recalcitrant and anxious about their ability to use material that lies outside what they had expected to be exposed to.

While a methods course on empirical legal research is highly desirable, it is not in itself enough if students are going to be properly introduced to empirical legal research. First, a methods course, no matter how well planned and executed, can provide no more than an introduction to understanding what good empirical legal research is. Regular and frequent practice is necessary before students will become accomplished in the application of the knowledge that they will have acquired on such a course. Secondly, for a variety of different reasons depending on the nature of the curricula, a law school will be trying to show students how empirical research improves their learning in a various areas of the curriculum. A long-term aim for the law school would therefore be for empirical legal studies to have a pervasive presence in the curriculum, thus both allowing students the frequent practice that they need in assessing whether research is good or not and also showing them how such research can add to their knowledge. However, it seems unlikely that this will happen in either the short or medium term. In many areas of the curriculum such research is in short supply. Moreover, in many jurisdictions the dominance of doctrinal approaches to law means that a large number of academics will not wish to use such empirical material as there is. In this context, how can students be given the opportunities that they need to study empirical material?

In their study of the place of empirical legal research in the academy Genn, Partington, and Wheeler suggest that law schools should offer either an option in “law in society” or some other course where empirical studies have a place, so that students can learn about the value of such studies (Genn et al., 2006 : 43). The suggestion that such a course should be optional is an implicit acceptance of the congested nature of existing law school curricula. However, if empirical legal research is to be taken seriously in law schools, the value of an optional course is questionable. That which is merely optional can be seen as therefore being marginal. The argument that has been put above is that knowledge of empirical legal research is, at least in the context of the aims of some law school curricula, now a necessity for students. If this is so then an element of such study needs to be compulsory. In some jurisdictions, certain courses already seem to be an appropriate vehicle by which students can learn the value of empirical legal research. In England and Wales, for example, legal system courses might fulfill this function because, as is noted above, empirical legal studies already have a place in most legal system textbooks. In addition to this, the course is already compulsory in most law schools (Lynch et al., 1993 : 222). Alternatively it might be possible to offer a course that combined method and theory and showed how empirical legal research could be used to advance knowledge of a particular legal area.

V. Conclusion

This Chapter has considered the place of empirical legal studies in the curriculum without looking at the wider context of the nature of the legal academy. However, this context is relevant to the arguments put forward above. A number of commentators in different jurisdictions have noted the changing nature of the legal academy. In England and Wales, Cownie describes “a discipline in transition, moving away from traditional doctrinal analysis toward a more contextual, interdisciplinary approach” (Cownie, 2004 : 196). In the United States Ulen writes about an increasing “schizophrenia … between one's teaching life and one's scholarly life” as academics in law schools become more concerned with non-doctrinal approaches to research (Ulen, 2004 : 248). The move to include more empirical legal research in the curricula of law schools is only part of broader changes in the law school. These changes are not uniform in their nature as Thornton's account of the politics of La Trobe law school, with its description of a move away from contextual scholarship in favor of doctrine and practice, illustrates (Thornton, 2006 ). While there is much to indicate that many law schools are becoming more academically oriented, at least in relation to their research agenda, and less concerned with the needs of legal professions, in some cases the reverse is true. Empirical legal research has to compete for the attention of academics in law schools with a number of other areas of research that are becoming more popular, particularly legal theory conceived in an ever-increasing number of ways. That which is true for academics is also true for law students. Even in jurisdictions where doctrine still holds sway it is not just empirical legal studies that offer alternative approaches. The calls for more empirical legal research come in different ways. In the United States there is the evangelical enthusiasm of the empirical legal studies movement; in the United Kingdom the concern is both that there is not sufficient present capacity to sustain empirical legal research and that many of those academics who do engage in such research are coming to the end of their careers (Genn et al., 2006 : 2). Law schools throughout the world are in a state of flux. What place empirical legal studies will find in future law school curricula depends not just on how academics react to such studies but also on how they react to other opportunities that are now opening.

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