THe Perils of Empirical Legal Research

Abstract

Empirical research is at once the most pressing item on the agenda of legal scholarship and the most terrifying prospect to legal academics. I can remember a seminar run by the American Bar Foundation to acquaint professors with the opportunities for empirical research. One senior participant, much respected in his field of specialization, finally ventured a question: could the American Bar Foundation teach him how to do empirical research or pair him with someone who did? At another leading school, a distinguished visiting professor, brought to the school to begin a program in law and society featuring empirical research, was refused tenure by the president of the university despite a large majority of the faculty approving the appointment. The victorious minority of the faculty had argued, inter alia, that no one had defined the scope or utility of empirical research, at least not to their satisfaction. Law schools teach legal history, the most empirical of all the social sciences, but more often than not the courses revolve about doctrine and imply that all is autonomous, self-generating, and antithetic to empirical research. The Wisconsin led at one time by James Willard Hurst, and now by such lawschool luminaries as Lawrence Friedman and Harry Scheiber, urges empirical research, but the bulk of legal history remains doctrinal. It is a welcome event, then, for defenders of empirical studies in the school that Bruce Mann, a professor of at the University of Pennsylvania Law School, has produced so thoroughly empirical a study as Neighbors and Strangers: Law and Community in Early Connecticut. Mann bases his account of the changing face of debt in early Connecticut on 5,317 civil cases drawn from intervals of the sitting of the county courts of Hartford and New London. At the end of the seventeenth century, the overwhelming majority of these cases involved book debt, a claim based on the plaintiff's own records of the defendant's indebtedness. These claims, brought to court, involved the jury in a quest for individualized