Empirical Legal Studies (ELS) has captured the attention of law librarians across the country, and for good reason. As our faculty begin to ask for our support and research assistance, we find ourselves hosting discussions using the AALL Forums, planning programs for the AALL Conference, expanding our reference staffs in order to provide more extensive support and coordination of our efforts, adding the Empirical Legal Studies blog to our blog readers, and … wondering what all the fuss is about?
I’ve been interested in ELS for a few years, so if you were to ask me for a concise definition, I’d say that ELS uses data analysis to study the legal system. This creates another set of questions, however, that range from “what type of data analysis?” to “what aspects of the legal system?” to “why do this type of research at all?” My answers would only lead to another cycle of questions and answers, but more important, they would fail to capture the excitement of ELS, the thrill of discovering something new about the ways in which our legal system, with its attendant, and often abstract, rules and decisions, manifests itself in a concrete reality that can be studied and measured and discussed and even changed.
In the hopes of conveying some of my excitement about ELS, I want to talk about a couple of my favorite ELS articles. The first is the final report of an empirical study of habeas corpus cases, both capital and non-capital, filed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). It can be found at www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf. This study was the joint project of Nancy King, Professor of Law at Vanderbilt Law School, Fred Cheesman II, Ph.D., and Brian Ostrom, PhD., both of the National Center for State Courts - a perfect example of a law professor collaborating with those who have in-depth empirical research experience. This project was funded in two parts: the data collection was underwritten by Vanderbilt Law School, and the completion of the project was funded by the National Institute of Justice, Office of Justice Programs, United State Department of Justice - another great example of a law professor using outside sources, in this case funding, for the study.
In addition to providing insight into the ways a law professor can undertake research and have it funded, this report provides a step-by-step guide into the world of empirical research. The authors thanked not only the Vanderbilt law students who were trained in data collection and coding but also the law school’s systems administrator who managed dozens of data files. The project also benefited from an Advisory Committee, made up of prosecutors, defense attorneys, and judges, who helped the researchers determine what information would be most useful to collect and who assisted with the interpretation of the findings.
The report begins by describing the AEDPA and then lays out the research goals of the study. It provides a review of prior research and an explanation of the study's design and methodology. The bulk of the report lays out the project’s descriptive findings, which can be used by others to further study and comment upon the AEDPA. There are also comparative findings using the prior research, explanatory findings of the current research, and appendices with statistical tables and a list of variables collected. In short, while the subject matter of the study may or may not strike your fancy, the report itself is a fascinating look into the design, implementation, and results of an empirical research study.
Another of my favorite empirical research articles, Past and Potential Uses of Empirical Research in Civil Rulemaking, 77 Notre Dame L. Rev. 1121 (2002), was written by Thomas Willging, a Senior Research at the Federal Judicial Center and a participant in the majority of the research he discusses. In his article, Willging contemplates the validity of empirical research to inform civil rulemaking. He is not writing a report of an empirical research study, nor is he using the results of previous empirical research to advocate for particular rules changes. He is, instead, walking through the questions that must be answered before deciding whether to engage in empirical research and use its results.
Willging explores the types of studies that could be designed to garner useful information; he describes and analyzes 14 recent examples of empirical research into the Federal Rules of Civil Procedure; he then uses this research to determine what empirical research can and cannot do in the context of civil rulemaking. And if we were to think of the report of the habeas corpus empirical study as primary empirical research, and the use of empirical research to advocate for particular changes to policy, legislation, rules, or administrative functions as secondary empirical research, then Willging is engaging in tertiary empirical research.
All three forms of empirical research are exciting to me because of their substance, but also because they offer something for everyone - the experienced empirical researcher with the time and money can design, implement and analyze the results of a study, the advocate for change can use the results of empirical research to make her case, and the scholar can study the effects of empirical research in a particular area. And the cycle can begin anew.