Statistics as if legality mattered: the two-front politics of empirical legal studies

Abstract

This chapter conducts a political history of empirical legal studies (ELS). We begin by locating its American origins and its transatlantic crossing into Europe within broader structural changes in society and politics. We then zoom into legal academia and demonstrate how the rise of ELS has been undergirded by a two-front politics of institutional change. The first battle was waged in the arena of disciplinary politics: ELS sought to correct a perceived ideational and formalist bias within law faculties via a more realistic jurisprudence and by transplanting quantitative methodologies deployed by social scientists. As proponents of ELS faced resistances from colleagues, they embraced a strategy of institutional change centered on creating autonomous ELS journals, conferences, and centers that would project influence back into law facilities. The second battle was waged in the arena of knowledge politics: ELS embraced a conception of the 'empirical' as quantifiable data lending itself to statistical analyses responsive to evolving social and market needs. In so doing, ELS dissociated quantitative methodologies from the social science theories promoting their development and discounted qualitative approaches that could also advance the empirical study of law. Hence despite notable successes, ELS's disciplinary and knowledge politics also produced unintended consequences leading to some self-estrangement from both law faculties and the social sciences.