The Future of Empirical Legal Studies: Observations on Holte and Sichelman's Cycles of Obviousness
19 Pages Posted: 25 Jan 2021 Last revised: 2 Apr 2021
Date Written: December 28, 2020
Over the last five years, the Iowa Law Review has published dozens of empirical legal studies. These studies have been a valuable contribution to the literature, adding data to help assess the validity of legal theories and hypotheses. Intellectual property law, in particular, has been an especially active growth area for empirical legal studies, and the Iowa Law Review has been at the cutting edge of empirical studies of intellectual property law.
Yet empirical legal studies generally have been subjected to widespread criticism. While some current norms in the field reflect progress over the last twenty years, others embody practices with room for improvement.
This Essay argues that a critical way to increase the credibility-and thus the value-of empirical legal studies is to focus first on the seemingly mundane issues of sound data acquisition descriptions, data reliability assessment, and data transparency. In service of this goal, this Essay identifies some of the excellent methodological practices of Ryan Holte and Ted Sichelman's recent Iowa Law Review article “Cycles of Obviousness” as well as some of the areas in which it reflects norms within the field that could be improved. This Essay concludes with a few practical, easy-to-implement recommendations for both the authors of and journals that publish empirical legal studies.
Keywords: empirical, patent, intellectual property
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