Above the Rules: A Response to Epstein and King

Abstract

Much of what Professors Lee Epstein and Gary King say in The Rules of Inference' is true and good. Indeed, their discussion of research methods provides a very helpful guide for those who produce and consume empirical legal research, both quantitative and qualitative. As they suggest, greater attention to methodology will both inform and enhance a particular research genrequantitative empirical legal scholarship -that is quickly coming into its own.2 Unfortunately, to make their point, Epstein and King devote the bulk of their article to an unremitting and excessive attack on the current state of empirical legal research methodology. Although some of their attacks are well aimed, on too many occasions their shots miss the targets they seek. More important, however, is that their assault on legal scholarship violates many of their own rules of inference. These violations degrade their analyses and erode confidence in their conclusions and recommendations. In the end, despite its promising thesis, their article becomes an exemplar of how descriptive research should not be conducted. Epstein and King's article might be considered a theoretical argument for certain rules for drawing inferences, but as they note, most works presenting a theory are grounded in descriptive claims. That is, such works make at least some claims about the world based on observation or experience.3 This is manifestly true of their own article. They present a fairly elaborate proposal for change in the legal publishing process.4 They call for substantial improvements in legal scholarship,5 which they assert is currently deeply flawed.6 They de-