An Empirical Study of Empirical Legal Scholarship: The Top Law Schools
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TRACEY E. GEORGE*
For the rational study of the law[,] ... the man of the future is the man of
statistics and the master of economics.'
- Oliver Wendell Holmes (1897)
[I]t is vitally important to determine whether the law is based on sound
assumptions about how the world works and to what extent a particular
law or process is achieving its stated objective and at what cost.2
- N. William Hines, President of Association of
American Law Schools (AALS) (2005)
Empirical legal scholarship (ELS) is arguably the next big thing in legal intellectual
thought. ELS, as the term is generally used in law schools, refers to a specific type of
empirical research: a model-based approach coupled with a quantitative method. The
empirical legal scholar offers a positive theory of a law or legal institution and then
tests that theory using quantitative techniques developed in the social sciences. The
evidence may be produced by controlled experiment or collected systematically from
real world observation. In either event, quantitative or statistical analysis is a central
component of the project.
Empirical research in law is not new.3 Law professors, in the past, offered statistical
studies on issues small, say parking violations in New Haven in the 1940s,4 and large,
such as jury versus judge verdicts in criminal trials.5 Despite Holmes's forecast,
however, work of this type was uncommon in law schools through most of the last
century.6 Few legal scholars published empirical studies in law reviews, the primary
t Copyright 2006 Tracy E. George. All rights reserved.
* Professor of Law, Vanderbilt University. My thanks to the organizers of the Indiana
Law Journal Symposium on The Next Generation of Law School Rankings, including Paul
Caron, Rafael Gely, Bill Henderson, and Jeff Stake. I benefited from thoughtful comments by
Paul Edelman, Ted Eisenberg, Chris Guthrie, Russell Korobkin, Bert Kritzer, Bob Lawless,
Mark Lemley, Andy Morriss, Margo Schlanger, Michael Solimine, and symposium organizers
and attendees. Judy Rose of the Law & Society Association and Tracie Thomas of AALS
offered valuable data about their respective organizations. Sarah Krause, Swarna Vallurupalli,
and Dawn Johnson provided excellent research assistance.
1. Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REv. 457,469 (1920).
2. N. William Hines, President, AALS, Opening Speech at the AALS 2005 Annual
Meeting (Jan. 2005).
3. Social scientists were conducting empirical studies of law and/or legal institutions
throughout this period. I am interested here in law professors undertaking such work.
4. See Underhill Moore & Charles C. Callahan, Law and Learning Theory: A Study of
Legal Control, 53 YALE L.J. 1 (1943).
5. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY (1966).
6. See Robert W. Gordon, Lawyers, Scholars, and the Middle Ground, 91 MICH. L.
REv. 2075, 2085 (1993) (arguing that empirical research remains to this day the most neglected
and ridiculously undervalued as well as the most potentially fruitful branch of legal studies).](ViewImageLocal?handle=hein.journals/indana81&div=15&collection=&method=preview&ext=.png&size=3)
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An Empirical Study of Empirical Legal Scholarship: The Top Law Schools
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