The Role of Theory in Empirical Legal Studies

Comparative Constitutional Studies, Forthcoming

22 Pages Posted: 6 Oct 2022

See all articles by Tonja Jacobi

Tonja Jacobi

Emory University School of Law

Date Written: October 4, 2022


The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analyzed. This essay explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral argument to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behavior. The essay explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously.

Keywords: Empirical Legal Studies, Constitutional Law, Comparative Constitutional Law, Theory, Regression, Data

JEL Classification: K00

Suggested Citation

Jacobi, Tonja, The Role of Theory in Empirical Legal Studies (October 4, 2022). Comparative Constitutional Studies, Forthcoming, Available at SSRN: or

Tonja Jacobi (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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