Phoebe's lament.

• Author: White, James J.
• Position: Lack of empirical research use by legislatures

Assume a bright hypothetical social scientist -- call her Phoebe -- who is completely ignorant of legal research as it is practiced in today's law schools. Phoebe might speculate about legal research as follows. First, she would note that the law schools are joined with and are the exclusive source of the practitioners of a profession. Second, she would note that commercial and legal actors rub up against and are influenced by the law in countless ways every day. Third, she might remark that this interaction occurs practically on the doorsteps of our law schools. Unlike anthropologists, who may have to travel to New Guinea to observe their subjects' behavior, or psychologists, who must devise clever experiments to observe their subjects' hidden motives and instincts, the interaction of law with the commercial life of various actors is practically lying in the street to be picked up by any passerby. And finally, she might note that discreet bodies -- state and federal legislatures -- pass new laws every year in response to apparent needs of commercial actors or in response to apparent difficulties with existing law.

Making these observations, Phoebe might then predict that a large share of legal research would consist of the collection of data about the interaction of law and life and the statistical analysis of those data to determine what is happening, how the law influences behavior in wise or unwise ways, and what new laws should be enacted and in what form. She might further speculate that much of this research would be directed to and have a large influence on state, federal, and elite (ALI and NCCUSL) legislatures.(1) Moreover, she could support her prediction by noting that distinguished lawyers such as Oliver Wendell Holmes, Derek Bok, Peter Schuck, and Michael Heise have long exhorted law professors to undertake such work, in some cases even predicting that empirical research would ultimately become the dominant form of legal scholarship.(2)

Of course, her speculation would be wrong -- almost completely wrong. Law professors do limited empirical work and almost none of that work is the statistical analysis of large bodies of data.(3) Some of this empirical work is directed at the legislatures and put before them, but the legislatures seem to consume little of it.(4) So Phoebe's speculation would be confounded. But why is that so, why does the world not conform to this plausible speculation?

The question why law professors do not do more elaborate empirical work(5) has been carefully addressed by Peter Schuck(6) and Michael Heise.(7) Their explanations are persuasive, and if any of you law professors would like to know why you are unlikely ever to undertake a large empirical study, notwithstanding your demonstrated interest in empirical work, you can find out by reading their work. So I pass this first question -- why law professors do not do more big empirical research -- and I ask you to think with me about the second question -- why the legislatures seem not to rely on empirical work. Of course, if you share my conclusions about the legislatures' behavior and about the reasons for that behavior, it may influence your decision to move on to larger empirical studies or to backslide into conventional law professor research. I believe that empirical work has had a most limited impact on commercial legislation and that strong reasons will keep it so.

That the legislative process has a powerful immunity to empirical work is ironic but nearly indisputable. Every single day of the year, the state or federal legislatures, not to mention the elite legislatures (ALI, NCCUSL), make decisions that could be informed and improved with greater knowledge of prevailing practices and motives of the relevant parties. Yet, the proudest example of legislation informed by empirical research is the small loan laws that were apparently adopted as a direct result of the 1907 study in New York by the Russell Sage Foundation.(8) That we must reach to 1907 for...