Legal Construct Validation: Expanding Empirical Legal Scholarship to Unobservable Concepts

AuthorDavid S. Goldman
Unobservable concepts such as rights, possessions, incentives, and
deterrence form the foundation of legal thinking. Yet over 200 years ago,
Jeremy Bentham strenuously warned us not to be seduced by the follies of
these types of terms, which he called inefficient legal fictions:1 “What you
have been doing by the fictioncould you, or could you not, have done it
without the fiction? If not, your fiction is a wicked lie: if yes, a foolish one.”2
For Bentham, legal fictions were artifacts of the imprecision inherent in
language.3 Such imprecision prevented meaningful distinctions between real
entities, such as “this man, this beast, this bird,” and abstract entities.4 He
claimed that such fictions, rather than expressing lofty ideas, were instead
most often used to subvert the law.5
Why is it then that the use of such terms continued unabated? At the very
least, they constitute shorthand for a list of real entities that would be too
extensive to name in each instance of use; for example, referring to “civil
rights” is simpler than enumerating each constitutional right to personal
liberty.6 But a more critical role can be assumed for these terms that Bentham
could not have yet appreciated. Given techniques that have been developed in
the social sciences in the last 60 years, these “fictions” can be operationalized,
* Copyright © 2007, David Goldman, I would like to thank Greg
Smith, Gideon Parchomovsky, Michael O’Donnell, and Spencer Waller for their extremely
helpful comments. The views outlined in this article are entirely my own and do not
necessarily reflect those of any past or present employers.
2 Id. at 141.
3 Id. at 12.
4 Id. at 38, 60.
5 Id. at 141, 147–50 (listing the ways lawyers use these “forced falsehoods” to make more
business for themselves, such as increasing chance of misstatements, making it easier to allege
that jury verdicts are improper by making the law incomprehensible, confirming arbitrary
power to judges, and corrupting the morals and intellectual faculties of the public).
6 “Civil rights” include the personal liberties guaranteed by the Bill of Rights, the
Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments, as well as the Voting Rights
Act, among other sources. BLACKS LAW DICTIONARY 100 (Pocket ed. 1996).
and can actually then enter into empirical relationships that permit their
measurement, as well as the assessment and prediction of the effects of laws
built around these “fictions” on subsequent human actions.7 For instance, in
Ronald Coase’s now fundamental example of the negotiation between a
farmer and a cattle-raiser for use of land, the neighbors were able to broker a
deal because they owned property rights in their land.8 While the rights and
the property may both be unobservable legal fictions, one can easily observe
whether crops or cattle occupy a particular parcel of land. By gaining a
detailed understanding of the operations of property rights, policymakers can
predict how changes in property law will affect future interactions for
efficient use of land. Legal scholars can now, finally, overcome Bentham’s
criticisms and determine empirically the practical usefulness of some of our
most reliable legal fictions.
Empirical observations of legal entities has been gaining particular
popularity recently because it allows debate on fundamental questions that are
informed by the actual impact of law on behavior rather than conjecture and
an appeal to commonsense.9 But now legal scholars can expand the current
horizons of quantitative analysis in legal scholarship by moving beyond
measurement of only observable entities to assessing unobservable legal
models as well through the notion of construct validation—the methods
behavioral scientists use to overcome the difficulty in measuring unobservable
psychological phenomenon, called constructs. Using the metatheories of
construct validation, researchers can infer the effects of unobserved constructs
and can then modify foundational legal theories based on empirical evidence
rather than speculation.10 I propose a standardized procedure, adapted from
7 See Brendan A. Maher & Irving I. Gottesman, Deconstructing, Reconstructing,
Preserving Paul E. Meehl’s Legacy of Construct Validity, 17 PSYCHOL. ASSESSMENT 415, 415
(2005) (describing the evolution of measurement of unobservable entities).
8 Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960), reprinted in THE
FIRM, THE MARKET, AND THE LAW 95, 97 (1988).
9 See, e.g., Tracey E. George, An Empirical Study of Empirical Legal Scholarship: The Top
Law Schools, 81 IND. L.J. 141, 141 (2006) (“Empirical legal scholarship (ELS) is arguably the
next big thing in legal intellectual thought.”); American Association of Law Schools Annual
Meeting: Empirical Sc holarship—What Should We Study and How Should We Study It? (Jan.
3–7, 2006),; Lee Epstein & Gary King, The Rules of
Inference, 69 U. CHI. L. REV. 1, 2 (2002); Richard H. McAdams & Thomas S. Ulen,
Introduction: Symposium: Empirical and Experimental Methods in Law, 2002 U. ILL. L. REV.
10 Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the
Scientific Method in the Study of Law, 2002 U. ILL. L. REV. 875, 899.
current understandings of construct validation, to measure intangible legal
constructs: (1) develop generalized legal theories, (2) infer hypotheses from
those theories, (3) design experiments to test the hypotheses, and (4) modify
the general theories based on the research results.
This first step in this process is the development of theories with a
generalized perspective not confined to specific laws that still maintain a
degree of specificity that provides adequate direction for future empirical
testing. Generalized theories allow multiple inferences that can elucidate
finer detail of an unobserved latent variable. For instance, rather than
addressing only the impact of the First Amendment,11 a more generalized
theory will address the influences of all constitutional rights.12 A generalized
theory may state that populations will tend to exhibit more freedom when
specific rights are embedded within those populations’ constitution.
Empirical studies of freedom of speech can then provide particularized
support for the broader constitutional theory, and can also interact with
studies of other rights.
Once a generalized theory has been devised, researchers can then infer
sets of hypotheses to test measurable aspects of those theories. For example,
based on a theory that constitutional rights lead to more freedom, one might
hypothesize that if a nation has a constitutional freedom of speech then the
media may produce more commentary disapproving of the government.
While the actual freedom that the press feels is impossible to measure, the
proportion of articles disapproving of government actions is relatively easy to
calculate. But a useful hypothesis suggests more than just an empirical test; it
should also have the potential to undermine the theory.13 The necessity for
critical hypotheses is borne from the current philosophical understanding that
11 See, e.g., Stephen M. Feldman, The Theory and Politics of First Amendment Protections:
Why Does the Supreme Court Favor Free Expression over Religious Freedom?, 8 U. PA. J.
CONST. REV. 431, 433–51 (2006) (discussing the development of First Amendment theory
since the drafting of the Constitution). While the development of theories for specific laws and
Constitutional provisions is extremely beneficial in its own right, these narrowly-tailored
theories do not lay an appropriate groundwork for empirical study because they do not provide
a broad enough base from which to infer traits of the unobservable variable.
12 See, e.g., Stephen Kanter, The Griswold Diagrams: Toward a Unified Theory of
Constitutional Rights, 28 CARDOZO L. REV. 623 (2006) (attempting to analyze the abortion
debate by using a more generalized theory for Constitutional law when the basis of the right is
unclear, rather than focusing on the specific rights outlined in the Supreme Court’s abortion
13 Gregory T. Smith, On Construct Validity: Issues of Method and Measurement, 17
PSYCHOL. ASSESSMENT 396, 396–97 (2005).

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