Lisa Fairfax has a very interesting post at the Conglomerate on whether untenured lawprofs aiming for tenure should do empirical research. Specifically, she articulates four arguments raised at a conference against such work. In very condensed form, the arguments are these: 1) it takes too long, 2) it takes a lot of work, 3) empirical articles are harder to place in general law reviews, and 4) it’s hard to get evaluations of such work for tenure purposes.
There is an excellent comment thread, and I particularly agree with this comment by Frank Cross. Larry Solum also has comments over at Legal Theory Blog.
I think it’s important to note that empirical scholarship has one significant advantage for both placement and tenure purposes. A lot of traditional law review articles just rehash arguments that have been made many times before, or are essentially appellate briefs making the author’s best argument for why some policy the author dislikes should be ruled unconstitutional. The open format permits this; articles can just “explore” an issue, or can make an argument that is pretty uncontroversial or else not well supported. My sense is that empirical scholarship tends to have more discipline: the format pushes authors to frame a question that has not been answered, to try to answer it, and to discuss the consequences (and weaknesses) of the answer. My sense is that articles editors like that, and I would guess that tenure committees do as well.
Full disclosure: My first published article was an empirical study, and I have an engineering background that probably makes me less scared of numbers than most lawprofs. So actual mileage may vary.
The difficulty with empirical research is the lack of law professors who are empirically trained. This is not just a problem that law professors cannot figure out multiple regression analysis (although many probably cannot) but that those who can are not rooted in the conceptual basis of empirical research. Trained empirical researchers will often publish a study that results in suprising, unwelcome, ambiguous, or inconclusive results. I suspect that less trained researchers are more likely to go back and mine the data for sexier results, then publish.
The problem with publishing empirical work in law reviews is that they are typically edited by people who have no clue how distinguish methodologically valid work from garbage. In regular social science journals, the process of editing and peer review provides at least a first-order assurance that the work is not complete nonsense. In CJLF’s listing of death penalty deterrence articles, http://www.cjlf.org/deathpenalty/DPDeterrence.htm, we don’t even include empirical research published in law reviews rather than peer-reviewed journals. I consider the choice to publish in a law review to be an effective admission that the work can’t stand the scrutiny of peer review.
My snide Ph.D.-based response is that if lawyers want to get tenure and call themselves professors, they ought to do some original research. Who cares how long it takes? If you can’t do something original, and publish it, in the time it takes to get tenure, you probably ought to be doing something else.
(OK Comments: Bryan, aren’t you taking an unduly narrow view of “original research”? When I was in engineering graduate school, for example, some Ph.D. students were working on experimental problems and others were working on theoretical problems. I don’t think that only one side was doing “original research”.)
Kent’s criticism seems unduly harsh. Part of the problem may be that in many instances, peer reviewed journals may not have the prestige of some law reviews. So a professor is more likely to publish with the Yale Law Journal than with a peer reviewed journal no one has heard of.
But I agree with Kent that student run journals may not have the expertise (nor the desire) to give a thorough treatment and critique to an empirical study. This is not to say peer review journals are superior, they just serve a different purpose.
I would like to do some empirical research for a student note, but the first and second issues in Fairfax’s post mean I probably won’t.
Granted, my only clock is graduation, but I get the impression that law reviews like you to get your note together as a 2L. (Plus I’ll be taking a bunch of classes in which I’d like to succeed.)
Her second point is even more problematic. If law professors struggle to get at data, it’s going to be much worse as a student. I think it applies, in part, even where the data is public because the most convenient comprehensive source of judicial opinions remains Lexis and Westlaw. Using their web interfaces would not make for speedy research (at least for what I have in mind). I already asked Lexis if I could have access to their programming API and the response was a flat no.
The third issue probably doesn’t apply as much since student notes tend to be shorter. I’m guessing the problem of being “overly scientific” is lessened because the standards for student scholarship are, of course, a little more relaxed.
It was a very successful approach for Professor Kimberly Moore from George Mason. She was one of the few professors to get out there and tackle 15+ year old arguments about patent law with empirical analysis of what has been going on in the courts and the USPTO. The work was accomplished with relatively unsophisticated statistical techniques. As a result of her work, she became one of the few members of the patent law academy paid attention to outside of the academy. Her work has led to significant changes in USPTO practice. More notably, she was recently nominated to the Court of Appeals for the Federal Circuit.
Perhaps not every field of law would realize the same degree of benefit, but it is refreshing to advance beyond the presentation of antedoctes in support of one side or another of some stale legal argument. In terms of advocating a change to the law through the courts or Congress, evidence of current trends is very compelling. The data may be hard to collect (Moore had to create her own data sets by combing through district court opinions), but that’s what eager law students are for, right?
Orin,
I agree that empirical research need not only be “practical” research; theoretical explorations are also worthy. Just not as worthy as applied research
I certainly think you can include theoretical explorations in original research; however, as you noted, much of the “theoretical research” in law tends to be a “rehashing” of a topic.
It seems to me that the complaint of the original post’s author really boils down to “it’s too hard.” I’m lacking sympathy for that complaint.
Oh, and by the way, at my grad school, we had a term for Ph.D.-student washouts: “M.S. students.”
Hahahaa. I jest, Orin.