Stepwise Progression: The Past, Present, and Possible Future of Empirical Research on Law in the United States and the United Kingdom

Date01 June 2014
Publication Date01 June 2014
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00663.x
AuthorJonathan Simon,Michael Adler
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 2, JUNE 2014
ISSN: 0263-323X, pp. 173±202
Stepwise Progression: The Past, Present, and Possible
Future of Empirical Research on Law in the United States
and the United Kingdom
Michael Adler* and Jonathan Simon**
The article distinguishes empirical research on law from other modes of
legal enquiry. It charts the changing fortunes of empirical research on
law in the United States and the United Kingdom and accounts for the
differences between them. In both countries, the development has been
uneven and intermittent rather than gradual and linear, with a number
of important differences in trajectories, in particular: the number of
growth spurts; their timing; the present position; and whether the rise
and fall of activity refers to research on civil and criminal justice or on
civil justice alone. The different trajectories are explained in terms of
path dependency (the fact that developments in the present are shaped
by developments in the past); sequential development (emphasizing the
importance of timing and that developments in one institution may be
contingent on developments in another); and institutional responsive-
ness (an institution's capacity to respond to opportunities in its external
environment).
173
*School of Social and Political Science, University of Edinburgh, 8
Buccleuch Place, Edinburgh EH8 9LW, Scotland
michael.adler@ed.ac.uk
** School of Law, University of California, Boalt Hall, Berkeley, CA 94720-
7200, United States of America
jsimon@law.berkeley.edu
Jonathan Simon spent the academic year 2010±2011 as a MacCormick Fellow in the
School of Law at the University of Edinburgh where the discussions that led to this article
began. Earlier versions were presented at the SLSA Conference in Brighton in 2011 and
the LSA Conference in Hawaii in 2012. The authors would like to thank the four
anonymous referees, Simon Halliday, and Bert Kritzer for their very helpful comments on
earlier drafts of the paper.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
INTRODUCTION
In the United States, most observers agree that empirical research on law,
legal institutions, and legal practices is thriving and has reached unprece-
dented heights.
1
In the United Kingdom, on the other hand, there is little
agreement about the state of the field. The Nuffield Foundation's Inquiry on
Empirical Legal Research
2
suggested that it had lost momentum and that
there was a serious shortage of capacity to undertake empirical research on
civil law and civil justice. Although some people accepted its conclusions,
others were very critical, arguing that the vitality of the Socio-Legal Studies
Associ ation , the orga nizati on repr esenti ng socio -legal s cholar s and
researchers, suggested otherwise. We do not attempt to resolve that dispute
here. Accurately assessing the vitality of empirical research on law in either
country would be an extremely complex empirical task.
3
Rather, taking the
`mood' of the two scholarly communities at face value ± a sense of strong
momentum in the United States and a sense of uncertainty and perhaps even
decline in the United Kingdom ± we assess how the history and institu-
tionalization of empirical research on law in each can help to explain the
difference.
I. BACKGROUND
In a little-known but insightful article entitled `Four Quadrants of Juris-
prudence', Neil MacCormick identified four general approaches to under-
standing the law: `raw law', `doctrinal law', `law in social science', and
`fundamental values and principles'.
4
In Figure 1, these four modes of
enquiry are mapped onto a space divided into four quadrants.
174
1 See, for example, T. Eisenberg, `Origins, Nature and Promise of Empirical Legal
Studies, and a Response to Concerns' (2011) 4 University of Illinois Law Rev. 1713±
38; M. Heise, `An Empirical Analysis of Empirical Legal Scholarship Production
(2011) 4 University of Illinois Law Rev. 1739±52; M.C. Suchman and E.M. Mertz,
`Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism'
(2010) 6 Annual Rev. of Law and Social Science 555±79.
2 H. Genn, M. Partington, and S. Wheeler, Law in the Real World: Improving Our
Understanding of How Law Works (2006).
3 See Heise, op. cit., n. 1.
4 D.N. MacCormick, `Four Quadrants of Jurisprudence' in Prescriptive Formality and
Normative Rationality: Essays in Honour of R.S. Summers, eds. W. Kravitz. G.H.
von Wright, and D.N. MacCormick (1994) 53±70. The analytic framework can also
be found in D.N. MacCormick, `The Ideal and the Actual of Law and Society' in
Law, Values and Social Practices, ed. J. Tasioulas (1997) 15±37.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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