Empirically Bankrupt

Abstract

Empirical analysis seeks to transform the terrain of legal scholarship. In the spirit of the natural scientist, the new cadre of empiricists attempt to use data they have gathered to end debate over a wide array of legal issues confronting scholars and law makers. Yet, precisely because empirical work seeks to end debate, law professors must be on guard against over-reading data and jumping to conclusions. This is not one theory battling another; such debates produce iteration after iteration, and each new effort confronts the theories that have come before. The seductive finality offered by empirical legal scholars requires an evolution of current scholarly discourse. By and large, law review staffs often do not have the expertise necessary to assess empirical claims critically. Indeed, the penchant of law reviews to publish strong claims creates incentives for authors to relax the necessary caution that pervades rigorous empirical work in other fields. Law reviews also disfavor work that evaluates other claims rather than putting forth their own affirmative cases. This lack of rigor in the publication decision combined with reluctance to expose flaws may lead to the publication and immunization of works that contain erroneous assertions. Flawed claims become part of the discourse and increasingly difficult to root out. Simply put, were the adage, “It takes a theory to beat a theory,” applied to empirical claims (i.e., “It takes data to beat data”), spurious claims would infect the field. The works assessed in this essay illustrate that risk. The claims of the empiricists are very strong. Taken as a whole, they would transform our understanding of the law of corporate reorganizations. Yet their assertions do not hold up upon examination. The fundamental problem is that the data does not support the claim. All three works fail to explain why the data that they gathered supports the conclusions that they reached. Data is trotted out as a trump, banishing the theoretical claims made by other scholars. When the data is taken on its own terms, however, it falls far short of supporting the ambitious conclusions the authors reach. Indeed, when all of the claims are examined closely, it becomes clear that it is the critic’s own theoretical assumptions, not empirical evaluation, that is doing the heavy lifting. This essay presents a cautionary tale. The growing use of empirical methods in legal scholarship is among the most noteworthy scholarly trends of the last ten years. It is beyond cavil that this work has deepened our understanding of a wide range of legal topics. The lesson of the studies considered here is that we must remain vigilant in this era of empiricism to avoid reflexively crediting arguments that advance tendentious theoretical claims as if they were “just the facts.” We do not all need to become empirical scholars. Theory and doctrine remain honorable callings. This empirical turn, however, requires that legal discourse broaden to include work that assesses empirical claims on their own terms to ensure that their contributions are sound and that their value is properly assessed.