The role of theory in empirical legal studies

Abstract

The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analysed. This article explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral arguments to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behaviour. The article explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously.