Wednesday, November 24, 2010

Can Empiricism Go to Law School?

Most readers know the cautionary "Be careful what you wish for . . . ." There is a comparable concern for those doing empirical research -- you may not find what you are looking for. By "what you are looking for" I do no mean that you will find no answer but that you may not confirm what you hoped to confirm. For example, you might believe that positive student evaluations are correlated with actual learning and find that they are not. Or, that the amount of discipline meted out to high school students is unrelated to the number of white high school administrators.

If you are a true scholar/empiricist you may shrug and then report your findings. A cultural clash occurs, howevever, when empiricism meets legal scholarship. Most legal "scholarship" as I have written before, is not scholarship at all. It is, instead,"service" to one particular end or another with that end usually ultimately being tied to a political goal. Thus, as they were trained to do in law school, legal scholars start with a "client" ( a political inclination) and set out to muster whatever they can to show that their client is "true."

So what happens when an empiricist comes along. The answer is, it depends. Let's take two empiricists both of whom have done a pretty shotty job. The have interpreted data to mean certain things when they have no way of knowing and they do not acknowledge the problems. They take a small sample, they make no effort to verify whether a survey they use actually measures what they purport that it measures. So, two empiricists, equally sloppy.

What it depends on is not the care that went into the study but what the study discovered. Let's say the first study shows a high correlation between the amount of punishment meted out to high school minoriities and whether the principal is white. The other study shows that there is no correlation between punishment and race. Given the policital state legal education today, the first study will be deemed "interesting," and "persuavise." People are likely to ignore any methodological problems or explain why they are not the author's fault. Chances are the second study will get exactly the opposite treatment. It will be viewed as "sloppy." "poorly conceived" and amateurish. There may be whispers about racism because the author allowed the result to become public. If it is a job talk, scholar one has a job scholar; two is, as they say on Project Runway, "out."

Maybe you think this is not so bad. At least one of the sloppy scholars did not get away with it. The problem is this, you could change the hypothetical so that the second scholar had done a spendid, air tight, objective, totally verifiable, triple-checked study and come out with the same results. In the eyes of most law professors there would still be problems. For some reason, the study cannot be right because . . . . well ultimately because it did not produce the right outcome. Consequently the careful, honest and skilled researcher is also "out."

What does this mean for empirical research and law schools. The first reaction has been to resist empirical research in part, I think, for two reasons: law professors are threatened by what they do not know and law professors were concerned about what the numbers would show. Now, I think the future is "brighter." Well maybe not brighter but different. Law professors are likely to embrace empirical efforts as long as the results are the "right" ones and some empirical work will be valued.


Blogger Patrick S. O'Donnell said...

Owing to the character limit, my comment is in two parts. (And some readers may have read the bulk of these remarks at other law blogs that broached the topic of empirical research, so I ask their indulgence.}

I think many of the problems also arise from uncritical adoption of the methods found in contemporary economics by Law & Economics devotees, a problem not wholly transcended by the recent turn to behavioral economics among some in the profession. People writing in this genre often seem wholly unaware of critiques of the methods of these economists by S.M. Amadae, Deirdre McCloskey, Philip Mirowski, Amartya Sen, Daniel Hausman, Michael S. Mcpherson, Ian Shapiro, and Elizabeth Anderson, among others.

And there’s not enough appreciation of philosophy of science (of both the natural and social sciences) for thinking through empirical questions, hence little appreciation of the meanings of induction, the use of models, the role of analogical and metaphorical reasoning, hermeneutics, debates surrounding methodological individualism, and so forth and so on.

Relatedly, there’s often uncritical adoption of the latest fad or fashion in the sciences (or latest fashionable science), be it from neuroscience, cognitive science, evolutionary psychology, what have you. The nascent character of such sciences should give one pause but....

It perhaps goes without saying that one of the more recalcitrant issues here revolves around the belief that the natural sciences are the repository for the kinds of models and standards, the analytical “robustness” and “rigor,” that we should imitate in the social sciences. Now we need not draw hard and fast boundaries between these two basic kinds of science (after all, we have sufficient reason to label them both ‘science’), but I think there are a host of reasons that we should take care not to elide the very real distinctions here between natural and social science.

For example, when folks hear the word “empirical” in this context they often call to mind “quantitative social science,” of which, after Elster, there are three principal varieties: measurement, data analysis (i.e., statistical analysis), and modeling. Such social science is often oversold if only because it trades too heavily on the mantle and mitre of “hard” science (i.e., the epistemic authority of the natural sciences). Elster himself discusses many of the neglected problems of such science in his book, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (2007). Elster avers, “An interesting question in the psychology and sociology of science is how many *secret practitioners* there are of economic science fiction—hiding either from themselves or from others the fact that this is indeed what they are practicing.” Here, what counts for epistemic rigor or robustness has to do with “numbers” or mathematics, specifically, “ingenious mathematical models” that have little or no anchor in everyday “reality” (as is often the case in economics) and thus are utterly irrelevant with respect to social policy (cf. several books by Deirdre McCloskey, critiques by Nicholas Rescher in his works on epistemology and objectivity, as well as Theodore M. Porter's Trust in Numbers: The Pursuit of Objectivity in Science and Public Life, 1995). Of course there’s nothing intrinsically wrong with being attracted to the elegance and parsimony exemplified in mathematics and mathematical modeling, but one has to make an argument for its relevance or significance in place of, or as a complement to, other methods in the social sciences.

11/24/2010 6:18 PM  
Blogger Patrick S. O'Donnell said...

In addition to the authors and titles mentioned above, I would recommend (in no particular order) the following by way of reflecting on the virtues and vices of current empirical practices in legal research, in other words, by way of thinking of its possible constraints: the considerable literature on hermeneutics commencing with works by Paul Ricoeur and Hans-Georg Gadamer (and the subsequent debate between Gadamer and Habermas), Geoffrey Hawthorn’s Plausible Worlds: Possibility and Understanding in History and the Social Sciences (1991), John Dupré’s Human Nature and the Limits of Science (2001), Richard W. Miller’s Fact and Method: Explanation, Confirmation and Reality in the Natural and the Social Sciences (1987), Harold Kincaid’s Philosophical Foundations of the Social Sciences (1996), Martin Warner’s Philosophical Finesse: Studies in the Art of Rational Persuasion (1989), Steven Horst, Beyond Reduction: Philosophy of Mind and Post-Reductionist Philosophy of Science (2007), Daniel D. Hutto, Folk Psychological Narratives: The Sociocultural Basis of Understanding Reasons (2008), Ian Shapiro, Rogers M. Smith, and Tarek E. Masoud, eds., Problems and Method in the Study of Politics (2004), Daniel D. Hutto, ed., Narrative and Understanding Persons (2007), and, last but not least, Hilary Putnam’s The Collapse of the Fact/Value Dichotomy and Other Essays (2002).

11/24/2010 6:20 PM  
Blogger Patrick S. O'Donnell said...

Aa a prelude to my comment, I might have said that if we're not inclined to think that certain cognitive biases: confirmation, expectation, focusing and framing effects, etc. (apart from, in addition to, or in conjuction with more obvious ideological prejudices and distortions), are wholly determinative in the case of empirical research, as the post appears to argue or insinuate, then we are still faced with other issues and problems worthy of "our" attention. Put differently, even a less skeptical or cynical(?!) take on matters leaves us with much to think about when it comes to the place and value of empirical research in legal studies.

11/24/2010 6:44 PM  
Blogger Jeffrey Harrison said...

Interesting comment but I was focusing more on what I would call garden variety neglect or dishonesty. It would be nice if the issues facing empiricism in legal education were as lofty as you suggest. They are not. They are far more related to silencing any empiricism that contradicts the current dominant political views. I wish it were more complicated but, unfortunately, it is not.

I would add one thing on which I disagree. Any empiricism in legal education that seems to have adopted an uncritical law and economics approach faces and uphill battle. Although the numbers have declined, a strong and possibly controlling contingent of law professors have rejected an economic approach to law and they view empiricism as closely related.

11/24/2010 9:02 PM  
Blogger Patrick S. O'Donnell said...


I was hoping my third comment evidenced appreciation of the focus of your post, perhaps it did not.

And I was not suggesting (making a descriptive claim) the issues facing empiricism in legal education were in any way "lofty," indeed, quite the contrary: I was suggesting that they should be of a different (and deeper) sort, going to the question of presuppositions, assumptions and the like (I've posted similar comments about empirical legal studies at several law blogs that discussed this very subject). So I agree with you that, at present, things are not at all "complicated." I am thus advocating (agitating?), perhaps naively or hoplelessly, for things to be otherwise.

My remarks about L & E literature may be, today, a bit off mark, as they reflect more of a familiarity with the fairly large and--let's face it--rather influential body of literatue itself and little or no acquaintance with the attitude and views of groups of professors (on the ground, as it were) opposed to such work.

11/24/2010 9:49 PM  
Blogger Patrick S. O'Donnell said...

Please pardon the typos.

11/24/2010 9:53 PM  

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