The Law is Not the Case: Incorporating Empirical Methods into the Culture of Case Analysis

Abstract

In this short article I explore how we as legal scholars can more systematically investigate, document, analyze, and predict the state of a particular corner of the legal universe. I contend that legal scholars who want to make strong assertions about the causal relationship between factors in the legal world (such as the link between a defendant's culture and his adjudicated culpability) must supplement traditional case analysis with social science methods and empirical data sources. More specifically, I consider the ways in which quantitative analysis of large scale data sets derived from published appellate opinions, close examination of unpublished case files, and qualitative assessments of interviews with criminal justice personnel can produce information that case analysis overlooks. I also argue that passive accounts or abstract explanations of case outcomes do not adequately capture the complexities of the justice process. Scholars therefore should articulate theories that directly address institutional actors and motivations to further our understanding of how patterns emerge. I conclude by offering some comments about the relationship between law and social science, and my reasons for optimism about the future of legal scholarship.