Empirical Legal Scholarship: Observations on Moving Forward

Empirical legal scholarship was once a novel and contested participant in the legal academy. In the twenty-first century, it has emerged as an active and valued player. That is not to say that empirical research has replaced doctrinal scholarship, or even that an empirical perspective is uncontroversial as a foundation for conclusions about how the legal system ought to operate. The current legal landscape, however, does reflect that empirical legal scholarship is now recognized as a legitimate contributor to our understanding of law and the operation and effects of legal institutions

A Jury Experiment Reanalyzed

Researchers in the behavioral sciences have watched with some pride as the courts have given increased attention to social science studies. Judicial interest in empirical studies is a desirable development but one not quite free of danger. The courts are not yet fully accustomed to dealing critically with such evidence. The United States Supreme Court ruled recently, in Colgrove v. Battin, that six-member juries in civil cases meet the seventh amendment requirement of trial by jury. This decision was not surprising in light of Williams v. Florida, in which the Court ruled that six jurors were sufficient to satisfy the sixth amendment jury trial guarantee in a criminal trial in state court. In both decisions, the Court claimed to be convinced that there would be no difference in trial outcomes if the size of the jury were cut in half. In the Colgrove decision, four empirical studies were cited as convincing empirical evidence” in support of this position; two of these studies had been published in the University of Michigan Journal of Law Reform. It has been shown elsewhere, in summary fashion, why none of the four studies supplied valid information concerning the issue of whether jury size affects trial outcome. This article considers one of these studies in detail, because it provides a good example of the inappropriate use of social science data. Conclusions are presented which may mislead the unwary reader and important information has been omitted, however unintentionally, from the study report. Because these data were missing, all of the tables in this review had to be developed from materials not presented to readers of the original report. This critique is designed primarily to help future researchers avoid repetition of these errors

Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity

The U.S. Supreme Court\u27s decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court\u27s earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, or even principally, explain the public outrage that followed it. Our experiments suggest that subjective attachment to property looms far larger in determining the perceived justice of a taking. We have only begun to map out the contours of this response, but these initial findings show promise in helping to build a more democratic model for the law and policies dealing with takings