Disciplinary Legal Empiricism

This Article reports on an empirical study of one hundred and twenty empirical legal studies published in leading, non-peer-reviewed law reviews and in the peer-reviewed Journal of Empirical Legal Studies. The study is the first to compare studies by disciplinary empiricists—defined as Ph.D. holders—with those by non-disciplinary empiricists—defined as J.D. holders who are not also Ph.D. holders. The study identifies three differences between disciplinary and non-disciplinary legal empiricism that are relevant to law school faculty hiring decisions. First, because disciplinary empiricists are more likely to collaborate with other disciplinary empiricists, hiring disciplinary empiricists will increase the quantity of legal empiricism only modestly.

That finding is in tension with the claim that, through collaboration, Ph.D.s hired on law faculties will enable their non-Ph.D.s colleagues to become empiricists. The second relevant difference is that non-disciplinary empiricists focus their studies more directly on legal issues and materials. The third difference is that non-disciplinary legal empiricists are twice as likely as disciplinary empiricists to create new datasets and to engage with legal source materials. Disciplinary empiricists are more likely to conduct statistical analyses of pre-existing datasets.

These findings suggest that disciplinary legal empiricism is not as effective as non-disciplinary legal empiricism in exploring legal source materials and preparing tenure-track law faculty to prepare students for the practice of law. Instead, disciplinary legal empiricism may further remove the tenure-track faculty from the reality of legal practice.