Empirical Doctrine

50 Pages Posted: 30 Aug 2015 Last revised: 8 Feb 2016

See all articles by Jessie Allen

Jessie Allen

University of Pittsburgh - School of Law

Date Written: August 28, 2015

Abstract

We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, we would have to adopt standards of legal correctness that violate fundamental conceptual and normative aspects of the legal institution we wish to study. In practice the promise of empirical data on doctrinal determinacy makes it seem less urgent to investigate other contributions doctrinal reasoning makes to law. Doctrinal reasoning might affect decision makers in ways that contribute importantly to legal process without determining outcomes. Trying to understand those effects is a research project to which the empirical methods of social science have much to contribute.

Keywords: Empiricism, doctrine, doctrinal determinacy, doctrinal indeterminacy, legal determinacy, empirical methods, empirical legal studies, doctrinal reasoning, legal reasoning, judicial decision making, political science, legal theory, New Legal Realism, legal realism, formalism, jurisprudence

Suggested Citation

Allen, Jessie, Empirical Doctrine (August 28, 2015). Case Western Reserve Law Review, Vol. 66, p. 1, 2015; U. of Pittsburgh Legal Studies Research Paper No. 2015-31. Available at SSRN: https://ssrn.com/abstract=2652692

Jessie Allen (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-624-2175 (Phone)
412-648-2649 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/jessie-allen

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