A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law
47 Pages Posted: 26 Jun 2003
Will there ever be a Nobel Prize in law? I use this question as a framework for discussing the current state of legal scholarship and the trend toward making legal scholarship more "scientific." I discuss the meaning of "science" and the scientific method and summarize the various theories that have developed over time to verify, modify, or reject scientific paradigms. Next, I consider whether the study of law is a science. All sciences share core theoretical beliefs about the same class of phenomena and agreed-upon methods of establishing the validity of claims made about those phenomena. This allows for the transnational study and dissemination of information about that scientific field, regardless of the country of origin of that information. Most legal academics believe that this description of a science does not and, more importantly, could not apply to their field. Rather, they argue that their field of study is inherently local by both geography and subject matter. Therefore, a legal academic who studies the tort liability regime in Moldova is generally thought to be studying something very different from someone who studies contract law in Moldova or the tort liability regime in Laos.
I make three claims. First, I argue that there is no inherent reason why law cannot be scientific. There is no inherent reason within law why there cannot be a transnational theoretical core about, say, tort liability of which each particular jurisdiction's instantiation is but an example. I draw the analogy to economics in which there is a single microeconomic theory of individual and group decisionmaking that instantiates into different national and regional economies, as dictated by different histories, social and governmental organization, resource endowments, and personal and group preferences. Second, I argue that law seems to be in the process of developing a transnational theory of organizations, consensual agreements, liability regimes, and more and that law and economics is currently (but not necessarily) the source of that theoretical core. I give examples of four empirical studies of legal issues that illustrate these trends. The astonishing aspect of the first three of these studies is that although they make empirical claims that question widely held beliefs about what the law in action really is, there has been no apparent alteration in what we teach law students in response to these empirical claims. By contrast, the response to Professor Ellickson's remarkable empirical study of the Coase Theorem in Shasta County, California, has been a dramatic alteration in the profession's belief about the Coase Theorem and the centrality of law in affecting behavior - precisely the reaction one would expect in a science in which theory and empirical work are cognizant of and responsive to one another. Third, I believe that this trend toward a more scientific study of law has been greatly spurred by law and economics, whose impact on legal scholarship has been profound in the United States, if not elsewhere.
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