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Spitzer, M --- "Evaluating Valuing Empiricism (at Law Schools)" [2004] LegEdDig 27; (2004) 12(4) Legal Education Digest 15

Evaluating Valuing Empiricism (at Law Schools)

M Spitzer

[2004] LegEdDig 27; (2004) 12(4) Legal Education Digest 15

53 J Legal Educ 3, 2003, pp 328–331

The following suggestions have been made for improving the empirical scholarship produced by law teachers and improving the empirical skills of law school graduates: (1) offer courses in empirical research for law school students; (2) hire a ‘methodologist’ onto the law school faculty; (3) support high-quality empirical research by law faculty through supporting education in empirical methods by law faculty, encouraging collaborations by law faculty with trained empiricists by ‘counting’ the publications toward promotions, raises, and honours, holding seminars on empirical methods, and providing research assistants, seed money, and other resources for empirical work, including an in-house staff specialist in computer graphics and statistical software; (4) encourage employers to hire more graduates with empirical training; (5) turn law reviews into student-run but peer-reviewed publications; and (5) support standards and methods for archiving data.

As a dean of one law school, the author first asks himself, ‘Can I gain something for my school by making the changes?’ And, if the answer is yes, then he must ask, ‘Are the gains worth the costs?’ If the answer to both questions is yes, he will proceed to make the change.

Are there benefits to converting to a student-run, peer-reviewed journal? That depends on whether such a journal could attract and publish better articles, enjoy an increase in prestige, and translate the increase in prestige into advantages for the rest of the institution. The author is sceptical about such a journal’s ability to attract better articles, mainly because he would be loath to submit his own articles. One of the big attractions of publishing in peer-reviewed journals is the chance to work solely with professionals. A student-run journal, even if it has a peer-review stage and a board including some faculty, will lack this crucial benefit. The change to a student-run, peer-reviewed journal would founder because of a lack of good submissions.

Perhaps the school could get better students by highlighting the journal to applicants, but it is unlikely that the effect would be large. It would be a difficult thing to explain to applicants, and rational students would see that only a small fraction of the student body can work on the journal.

There would be significant costs in making such a transition. The law reviews are regarded as belonging to the students. There are enough flash points with students without trying to transform the law review. The author would need to be convinced that the benefits from making the transformation were larger and more certain before risking the cost.

In addition, employers already want graduates who can help them with any sort of technical skill. This includes econometrics and statistics, engineering, and many fields of basic science. Such graduates already get the best jobs. Law schools have no additional role to play here.

With respect to supporting high-quality empirical research by faculty, most of these suggestions are reasonable, but several cost a lot. In particular, the University of Southern California (USC) law school (of which the author is dean) has resolved the co-authoring issue. It gives the standard advice to junior scholars to avoid publishing only with the same co-author, but goes a bit farther. An untenured scholar is advised to try to publish one or two solo-written articles, in addition to the co-authored articles, to make it easier to measure the faculty member’s contributions to the co-authored pieces.

As regards the suggestion of hiring a methodologist, USC did so years ago, both by hiring faculty with law degrees in addition to PhDs in fields that incorporate empirical methodology into the training, and by hiring faculty with only PhDs in the other fields. In sum, the only thing the author is going to rush out and do differently is data archiving.


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