Disciplinary Legal Empiricism
41 Pages Posted: 2 Apr 2016 Last revised: 3 May 2017
Date Written: March 31, 2016
This Article reports on an empirical study of one hundred and twenty empirical legal studies published in leading, non-peer-reviewed law reviews and in the peer-reviewed Journal of Empirical Legal Studies. The study is the first to compare studies by disciplinary empiricists – defined as Ph.D. holders – with those by non-disciplinary empiricists – defined as J.D. holders who are not also Ph.D. holders.
Three differences identified in the study suggest that Ph.D. hiring is on a collision course with the demands of legal educators, the organized bar, and students that the law schools better prepare students for practice. First, disciplinary legal empiricists focus their studies less directly on legal issues and materials. Second, disciplinary legal empiricists are only half as likely as non-disciplinary empiricists to create new datasets. Instead, they analyze existing datasets statistically, conduct experiments, or administer surveys. Because most J.D.-Ph.D.s have no practice experience when they begin teaching and pursue scholarly agendas that do not engage them with lawyers or legal materials, they are unlikely to become sufficiently familiar with the world of legal practice to effectively prepare students for it.
Third, Ph.D.s tend to collaborate with other Ph.D.s. That finding is in tension with the claim that hiring small numbers of Ph.D.s who collaborate with the non-Ph.D.s on law faculties can meet the law schools’ need for pervasive empiricism.
This Article concludes that Ph.D. hiring will continue to increase across all levels of the law school hierarchy as a share of tenure-track hiring. But the numbers of tenure-track law faculty hired will shrink as the law schools shift resources to hiring full-time, non-tenure track faculty with legal experience.
Keywords: empiricism, Ph.D.s, J.D.-Ph.D.s, law schools, legal education, disciplines, interdisciplinary, practice, preparation for practice, MacCrate Report, Carnegie Report
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