Does Empirical Legal Studies Shed more Heat than Light? The Case of Civil Damage Awards

• DOI: http://doi.org/10.1111/raju.12072
• Date: 01 December 2016
• Published date: 01 December 2016
• Author: Jeffrey J. Rachlinski

Does Empirical Legal Studies Shed

More Heat than Light?

The Case of Civil Damage Awards

JEFFREY J. RACHLINSKI

Abstract. Empirical investigation of legal systems is emerging as a leading trend in

both the social sciences and the legal academy in the early twenty-first century. Law

reviews are now filled with studies reporting empirical data. Because empirical

investigation of law commonly seeks to inform contentious social and political

debates, however, its research often fuels more debate than it resolves. Partisans on

both sides of contentious issues now cite the same body of research to support their

reform efforts. However, social science research on law is not a useless undertaking,

as it can sharpen debate. But the hope that the new empirical legal studies

movement will become a neutral source of information for policy makers is

unlikely to be realized.

1. Introduction

Every discipline experiences trends in scholarly interest, and law is no exception.

Legal realism, critical legal studies, the law and society movement, and law and

economics all have had their time in the sun. Each movement, in turn, has left a

lasting effect on subsequent scholarship. Today’s trend is clearly empirical legal

scholarship. The production of empirical research relating to law has exploded

within the legal academy over the past 15 years and has become a dominant

trend.

The turn towards empirical scholarship in law has tangible benefits. At one time,

a common aphorism held that for lawyers, “data is the plural of anecdote” (Gilson

1999, 612). Amusing though that aphorism might be, it suggests a troublesome state

of affairs for courts, legislatures, and administrative agencies. Law is, at heart, an

applied social science. Any society that changes its laws potentially affects the lives

of every one of its members. Absent an understanding of what effect law actually

has on a broader society, policy-makers must simply guess as to whether their

decisions have the desired effect, no effect, or even backfire (Hillman 2002). In fact,

dramatic anecdotes, more so than informed analysis, often drive legal reforms

(Kuran and Sunstein 1999). The hope of the new turn towards empirical work is

that it will replace guesses and aphorisms with science and insight. As was said of

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Does Empirical Legal Studies Shed

more Heat than Light?

The Case of Civil Damage Awards

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another legal trend (behavioral law and economics), empirical scholarship might

create law with “a higher R-squared” (Jolls, Sunstein and Thaler 1998, 1478)—

meaning that legal decision-makers will have a greater ability to predict the effect

of their policy choices.

A clearer understanding of the actual effect of legal rules might also be called

evidence-based law (Rachlinski 2011). Other fields are also experiencing trends

toward greater reliance on data to guide decision-making, with some measure of

success. Doctors increasing rely on large-scale studies to guide therapeutic choices

(Sackett et al. 1996) and businesses are producing and consuming marketing data

at ever-increasing rates (Ayres 2007). The trend towards empirical work in legal

scholarship holds out the same potential benefits, but empirical legal scholarship is

not the same as evidence-based law. Scholarship is produced within the academy;

law is produced in courts, legislatures, and administrative agencies. Unless the

actors in these institutions read and respond to the empirical work that the

academy produces, the empirical legal studies movement will not produce better-

informed law (Rachlinski 2011).

Although it is difficult to assess the long-term effect of any scholarly movement

while it is ongoing, the early returns do not suggest that the latest trend towards

empirical legal scholarship will accomplish its goal of inspiring evidence-based law.

Empirical legal scholarship commonly addresses highly contentious, overtly politi-

cal issues that are difficult to study (Rachlinski 2011). Partisans can thus pick and

choose studies to suit their political preferences. Consequently, empirical work

might largely fuel rather than resolve debate. As this essay documents, even when

the empirical scholars agree completely on the underlying facts, interpretation of

the results can differ dramatically. Empirical legal scholarship is still worth con-

ducting, but the hope that it will resolve difficult partisan debates in law might be

unrealistic.

2. The Rise of Empirical Legal Scholarship

Empirical legal scholarship has expanded dramatically in the past decade. The best

evidence for this expansion has been the rising number of empirically oriented

faculty at leading law schools in the United States (Rachlinski 2011). In the past ten

years, Yale has tripled the number of scholars who primarily conduct empirical

work.1The University of Chicago, Stanford, and Duke have also expanded their

commitment to empirical scholarship dramatically. The University of Pennsylvania

Law School had no scholars devoted largely to empirical work a decade ago, and

now it boasts six. Vanderbilt has likewise witnessed a similar expansion. North-

western went from considering an association with the American Bar Foundation

as adequate to having at least ten trained empirical faculty members. Many top law

schools now seem to believe that having empirically trained scholars is critical to

a fully successful law faculty.

Furthermore, articles in United States law schools increasingly either rely heavily

on empirical research in supporting their arguments or actually present primary

empirical evidence (Epstein and King 2002). Documenting the extent of this rise is

challenging, but one recent study by Michael Heise (2011) of the content of law

1The results in this paragraph were taken from websites of the schools identified.

2Jeffrey J. Rachlinski

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