As numerous people have written, empirical legal studies are on the rise. More and more scholars define themselves as empirical legal scholars and it seems that this trend is only growing stronger in recent years (See for example, Heise, 2002 & George, 2006).
Many scholars have discussed the relationship between empirical legal studies and more classic approaches such as law and society, law and psychology and law and economics, that all carry some empirical component within them. Regardless of one’s stand in the debate on this issue, it is clear that empirical legal studies are on the rise in top law school in the U.S as well as around the world, as I have previously mentioned, when describing the global movement of empirical legal studies (see my previous blog).
The main question I want to raise in this post (against my own interest, as I definitely consider myself as an empirical legal scholar) is whether at some point could all legal scholars become empirical. To put it in a more realistic context, what is the optimal ratio of empirical legal scholars, in a given faculty or a given community of legal academics (e.g. contract law, tort law, etc).
The obvious objection to such situation is the notion of diversity, where the need in multiple theoretical perspectives is important for a rich discussion among scholars and for exploring conflicting perspective to any legal question. However, one might argue that in contrast to law and economics, empirical legal scholarship doesn’t have to adopt a narrow theoretical standpoint, as for example, many of the scholars who attend the ELS conference come from diverse backgrounds. Moreover, taking a broader approach to ELS, would include for example, scholars who use qualitative methods, would ensure an even broader theoretical perspective. Furthermore, most ELS scholars usually study one or two doctrines and hence the diversity of legal doctrines could be achieved. Even with that, there is naturally a limitation in the empirical research conducted in these different legal doctrines; if too many scholars study law empirically, very few scholars will need to carefully read cases for their research, as the focus would shift to the quantifiable factors in the case.
A second possible objection would be the legal expertise of such legal scholars. Accounting for the fact that people have limited time and energy to read and learn. Almost by definition, a scholar who have to master all the methods of empirical legal research could not dedicate the same amount of effort and time to learn the legal doctrine.
A final objection might be the dominant community of knowledge in such situations. For example, in the area of decision-making, there are a few dozen ELS scholars but several thousand psychologists and economists. Since one might assume that the interest of legal scholarship and other disciplines may not be always aligned, it is possible to speculate that the larger and more established community would be more dominant. Without an established “non-ELS” empirical community in every sub-legal scholarship, it might be hard for ELS to fulfil the needs of the legal community (see my past blog on external validity).
In sum, while on a personal level, I try my best to convince all of my colleagues to become empirical legal scholars, I feel obliged to recognize the existence of a trade-off.