Sunday, June 1, 2014

Empirical legal studies – The new law and economics of non-American legal scholars?

Next week, I will be participating in a conference in London organized by Cornell law school (Dawn Chutkow, Valerie Haies and Michael Haise, who have stepped up to replace the late Ted Eisenberg). The conference attempts to establish the global society of Empirical Legal Studies. I will further elaborate my description about the conference itself, however one item of the report I prepared about Israel, is the trigger for this blog. A while ago, few papers have been written about the dominance of Israelis in law and economics (e.g., Oren Gazal-Ayal 2007). An argument raised in these papers claims that Israelis who want to participate in the global market of ideas, with special emphasis on the U.S academic market, has focused on law and economics, which tends to be a more universal area, relative to more doctrinal areas of research. Indeed, intuitively everyone who sees the amount of Hebrew speaking participants in ALEA, could relate to this argument, and I am guessing it is also true for other countries. This is not yet the situation in the annual conference of empirical legal studies. However, when making the report for the above mentioned conference, I could not have helped noticing that something like 10-15 percent of the legal academics in Israel, have empirical legal studies as their main methodological community, number that seems to outnumber that of the law and economics community (there is an obvious overlap between the two communities).

              There are some preliminary questions that one should ask, if interested in evaluating whether empirical legal studies could have similar “universal” effect to that of the law and economics method. In principle, one can identify many similarities; in both approaches the necessary knowledge of the doctrine is minimal, the knowledge of math and or statistics, respectively, could replace knowledge of U.S law, and both partly rely on disciplinary fields which argue to be universal (e.g. economic or psychology). However, there are also some notable differences between these two communities of knowledge. First, in many strands of empirical legal studies, much of an argument's development process is related to collecting data about legally relevant institutions. In much of these institutions, the variation among countries is such that when brought as evidence, it could never influence American legal policy, without further “local” findings. Another strand of empirical legal studies, is based upon experimental methods. Admittedly, in most aspects of experimental psychology, the country where the experiment was conducted in, is secondary to the question of interval validity. However, in the experimental legal analysis, question of external validity seems to play a much larger role, as in any other applied science. Nonetheless, scholarship wise, it seems that being non-American will be less of an advantage.

Next week I hope to come back with some answers to the potential contribution of empirical legal studies to the emergence of a truly global legal academic.

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