Empirical Scholarship in Contract Law: Possibilities and Pitfalls

Abstract

Professor Korobkin examines and analyzes empirical contract law scholarship over the last fifteen years in an attempt to guide scholars concerning how empiricism can be used in and enhance the study of contract law. After defining the parameters of the study, Professor Korobkin categorizes empirical contract law scholarship by both the source of data and main purpose of the investigation. He then describes and analyzes three types of criticisms that can be made of empirical scholarship, explains how these criticisms pertain to contract law scholarship, and considers what steps researchers can take to minimize the force of such criticisms. This article provides a critical analysis of empirical scholarship in contract law. Its primary goal is to help contracts scholars determine whether they wish to add an empirical component to their academic work and how they might do so, but the observations and conclusions will hopefully be of interest to empiricists or would-be empiricists interested in any area of the law. The article analyzes empirical contract law scholarship from two very different perspectives. First, in order to provide scholars with a menu of the empirical approaches available to them, the article categorizes empirical contract law scholarship according to two criteria: the sources of the empirical data relied upon, and the use—or purpose—of the empirical inquiry. This portion of the analysis is based on a review of the body of empirical contract law scholarship published over the last fifteen years. Second, in order to help scholars determine whether their research efforts would be used most productively in the pursuit of empirical analysis, the article describes and analyzes a series of conceptual