A Defense of Empirical Legal Scholarship

Abstract

In the past twenty years, the legal academy has become quite interdisciplinary in its ambitions and methods. It is therefore natural that scholars in other disciplines-particularly the social scienceswould want to assess the quality of work being done by legal scholars, as Epstein and King have done. At the same time, given the extent to which joint degree holders and otherwise academically trained individuals have moved into legal teaching, it would be surprising if the quality of legal research-particularly empirical research-had not improved dramatically over time, with its tools becoming more sophisticated, the questions it addresses becoming better conceived, and its results becoming more illuminating. Surprisingly, after engaging in what they take to be an exhaustive review of the literature, Epstein and King conclude that the results are grim. As already indicated, they find much to condemn and little to applaud in the current scholarly output of legal academics performing empirical work. This brief response proceeds as follows. Parts I and II focus on my work on judicial behavior in the D.C. Circuit, which Epstein and King criticize as an example of flawed empirical scholarship. In Part I, I present my D.C. Circuit article as a case study of various categories of methodological advances achieved by empirical legal scholars, and suggest that similar methodological advances can be found elsewhere in legal scholarship. In Part II, I show that Epstein and King's specific…