Empirical Legal Studies

1 Summer 2006 Volume 13 – Number 1 Newsletter of the Sociology of Law Section of the American Sociological Association. SOCIOLOGY OF LAW SECTION OFFICERS Empirical Legal Studies: Sociology of 2005-2006 Law, or Something ELS Entirely? Chair Mark Suchman, University of Wisconsin Mark Suchman Chair-Elect Kitty Calavita, UC-Irvine Past-Chair Joachim Savelsberg, University of University of Wisconsin-Madison Minnesota I have just returned from the annual Secretary/Treasurer meeting of the Law and Society Association, Robert Granfield, SUNY Buffalo an organization with deep roots in the Council Members Fiona Kay (2006), Queens University; Rebecca sociology of law -- and a second (or even Sandefur (2006) Stanford University; Kim Lane first) home for many of us in the Sociology Scheppele (2006), Princeton University; John of Law Section of the ASA. At this year's Sutton (2007), UC-Santa Barbara; Richard Lempert LSA meetings, however, the buzz was not (2006), University of Michigan; Erin Kelly (2007), primarily about sociology of law, nor about University of Minnesota Publications any of the other social science disciplines CHAIR: Matthew Silberman, Bucknell University; that comprise most of the LSA's Newsletter Editor, David Shulman, Lafayette membership. Rather, the words on College; Christine Horne, Washington State everyone's lips -- whether enthusiastically or University; Bruce Price, University of Denver; Lara Cleveland (Student Member), University of sarcastically -- were “empirical legal Minnesota studies.” Ad Hoc Sub-committee on a Sociology of Law Some members of our section, no doubt, Anthology are more familiar with the empirical legal CHAIR: Mark Suchman, University of Wisconsin; studies movement (or “ELS”) than I; others Elizabeth Quinn, Montana State Nominations may have encountered it in passing but not CHAIR: John Skrentny, UC-San Diego; Elizabeth yet given it much thought; and still others Hoffmann, Purdue; Jennifer Earl, UC-Santa may not have encountered it at all. But with Barbara; Virginia Mellema (Student Member) UC- ELS on the rise, we would do well to begin Berkeley Membership taking notice and making sense of this new Chair: Patricia Ewick, Clark University; Jonathan player in our intellectual field. Simon, UC-Berkeley; Anna-Maria Marshall, ELS Ascendant University of Illinois; Sandra Levitsky (Student Empirical legal studies have formed the Member), University of Wisconsin; Daniel backbone of the sociology of law since the Steward, (Student Member), University of Wisconsin days of Durkheim and have been at the core Mentorship Coordinator of the law and society tradition since its Elizabeth Boyle, University of Minnesota inception in the 1960s. The Empirical Legal Studies movement, however, dates only to AMICI 13:1 the mid-1990s at the earliest. In 1996, TABLE OF CONTENTS Harvard opened what may have been the Suchman “Empirical Legal Studies” 1 nation's first self-proclaimed ELS program, Silverstein “The Ground Game” 4 Uggen & Vuolo “Getting the Truth” 6 and in 2004, Blackwell launched the Journal PhD Spotlight on Mary Nell Trautner 9 of Empirical Legal Studies (edited at Presentations & Section Events at ASA 9 Cornell). “Empirical Scholarship” was the New Books 16 theme of the 2006 AALS meeting, and later this year the University of Texas will convene the First Annual Conference on Empirical Legal Studies. There is now even 2 a ranking of the “top ELS law schools” law schools historically have done little to (George 2005) and a lively ELS blog. (Said train empirical scholars, ELS is quite open blog, by the way, will feature some of our to participants from the social sciences. To own section members as guest bloggers in date, ELS's largest contributing disciplines the coming months -- see: seem to be psychology and economics, but http://www.elsblog.org/.) sociology could certainly claim a place at At the LSA meetings, presenters proudly the table if we so chose. proclaimed allegiance to ELS, and law In its methods, ELS is more quantitative schools touted their ELS bona fides. than qualitative and more contemporary than Everyone, it seemed, was confident that ELS historical. But these affinities are contested, was the wave of the future and that they, and no one yet seems to be themselves, were riding the crest. excommunicating any method, as long as it No one, however, seemed quite as is “empirical.” ELS may slight some of the confident of what, exactly, ELS is. People more interpretive and humanistic approaches who merely parsed ELS's self-proclaimed that have recently gained footholds in the moniker wondered aloud whether ELS legal academy and in the Law and Society might simply be the sociology of law in new Association, but most sociological clothing. Or more menacingly, law and ethnography and historiography should economics in sociologists' clothing. Or easily pass muster. If quantitative (and more cynically, the legal professoriate in the particularly experimental) methods currently emperor's new clothing. But the uninitiated have the upper hand in ELS circles, this may were hardly alone in their uncertainty. Even be due more to the kinds of audiences that some editors of the ELS blog could be heard ELS wants to address than to the kinds of soliciting others' opinions about what evidence that ELS is willing to consider. exactly the enterprise should entail. ELS This brings us to ELS's mission, which may be all the rage, but in Meadian terms, it appears to be the application of rigorous is still an “I” in search of a “me.” empirical methods to questions of legal (as Membership, Method and Mission opposed to disciplinary) import. This, I take It may seem a bit unfair to pigeonhole a it, is what ELS means by “informing movement whose flagship journal is less litigants, policymakers, and society as a than two years old. But as ELS becomes a whole about how the legal system works.” growing presence on our campuses and in ELS is the empirical study of all those our reading, sociologists of law will phenomena that have long commanded the increasingly encounter the question of how attention of legal scholars and practitioners, this emerging tradition fits with (or within) but that have heretofore been “known” only our own. through doctrine, personal experience, and ELS, we are told, promotes “legally common-sense assumptions about human sophisticated empirical [analysis,] ... to nature. inform litigants, policymakers, and society Thus, for example, ELS might ask as a whole about how the legal system whether an increase in the number of works” (Eisenberg 2004). But as our friends lawyers leads to an increase in litigiousness; in science and technology studies would whether videotaped confessions elevate the remind us, such statements gain substance likelihood of conviction; or whether only when instantiated by a particular understaffed trial courts push more cases scholarly community, with a particular toward out-of-court settlement. In contrast methodological style, on a particular to the sociology of law, however, ELS intellectual mission. would be far less likely to ask whether In its social origins, ELS is closer to law professional occupations gain status in post- schools than to disciplinary social science industrial societies; whether confessions departments. That, presumably, is what depart from the speech patterns of “legally sophisticated” means. But since conversational storytelling; or whether 3 mimetic isomorphism fosters new “logics” warned about in graduate school, but neither of dispute resolution. These latter questions is it the sort of theory-driven “basic” arise not from the concerns of the legal scholarship that defines what Burawoy community but from the theoretical program (2005) has labeled “professional sociology.” of sociology as a discipline -- an agenda that Rather, at least in its early incarnations, ELS many legal scholars would find rather appears to be largely “policy sociology”-- to arcane. the extent that it is sociology at all. Often, of course, this difference is merely In this, ELS differs more from the a matter of framing. Many studies could sociology of law than from the law and presumably fit equally comfortably into society movement, which was also not either ASR or JELS, with a few revisions to particularly theory-driven in its early days. their introductions, literature reviews and But law and society has always harbored a conclusions, but with their data, methods deep commitment to the sorts of reflexive and results sections largely unchanged. scholarship that Burawoy labels “public” (Attention publication-hungry assistant and “critical” sociology, as well as to self- professors!) critique and thoroughgoing At the same time, however, framing can interdisciplinarity. It remains to be seen drive practice: ELS's orbit lies well within whether ELS will follow this same arduous the gravitational “pull of the policy path, or whether instead it will become a audience” (Sarat & Silbey 1988), and this more complacent, insular, and technocratic presumably privileges the types of questions endeavor. that lawyers might ask, the types of evidence Moreover, there is some risk that as ELS that courts might admit, and the types of gains traction, the sociology of law, as we answers that legislators (and other people of know it, may become even more marginal in action) might find useful. the legal world than it is today. As legal ELS and Us scholars become more and more What then should be our stance toward methodologically skilled, they may have less this new movement? Part of me (and, I'm and less patience for disciplinary social sure, part of us) welcomes this development scientists who cannot estimate a regression and hopes that the sociology of law can find or run a mock jury experiment without a seat on the ELS bandwagon. If ELS citing Marx, Weber, and Durkheim. And as shakes up the routines of the legal academy legal scholarship becomes more and more and injects some empirical humility into empiricist, it may leave less and less room traditional doctrinalism, that can only be to for theoretical analyses that critique the sociology's benefit -- as well as to the long- social foundations of the legal enterprise run benefit of doctrinalism itself.

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